State of Iowa v. Jeremy Lee Hill ( 2020 )

IN THE COURT OF APPEALS OF IOWA
No. 18-1583
Filed February 5, 2020
STATE OF IOWA,
Plaintiff-Appellee,
vs.
JEREMY LEE HILL,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Warren County, Thomas P. Murphy,
Judge.
Jeremy Hill appeals his conviction of theft in the second degree.
AFFIRMED.
Nathan A. Olson of Branstad & Olson Law Office, Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Richard Bennett, Assistant
Attorney General, for appellee.
Heard by Tabor, P.J., and Mullins and Schumacher, JJ.
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MULLINS, Judge.
Jeremy Hill appeals his conviction of theft in the second degree. Hill argues
the district court erred and violated his constitutional rights in providing an aiding-
and-abetting jury instruction, insufficient evidence was provided to support the
conviction, and he received ineffective assistance of counsel at trial.
I. Background Facts and Proceedings
Hill was the manager of a convenience store in the summer of 2017. While
working second shift on September 10, Hill reported a theft to the Warren County
Sheriff’s Department. Hill reported that bank deposits for two days were taken
after Hill placed them in his personal vehicle. Hill provided a statement that he
placed the deposits in his vehicle, went back into the store to retrieve his cell
phone, and, upon returning to his vehicle some time later, discovered the door was
open and the deposits were missing. Hill also said he moved his vehicle from
designated employee parking to a location visible from the cash register of the
convenience store prior to placing the deposits in the vehicle. Hill was working
with another employee at the time of the incident. Hill and his co-worker were both
questioned by law enforcement. The co-worker has since left the state and could
not be found to provide testimony at trial. It was later discovered that four days’
worth of deposits, not two as originally reported, were taken. The total amount
taken was just over $9500 in cash and checks. In October, Hill was charged with
theft in the second degree and conspiracy to commit a non-forcible felony in
relation to the September 10 incident.
Hill entered a plea of not guilty and the case proceeded to trial in July 2018.
Surveillance footage from the convenience store showed a person wearing a hood
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walk by the front of the convenience store immediately before Hill removed the
deposits from the safe and placed them in his vehicle. Hill testified he walked
around the back of the building to perform his duties, including inspecting the area
for waste and checking trash cans. Hill stated he did not encounter anyone when
walking behind the building. The State argued Hill would have seen the hooded
individual behind the building, as both people were behind the building at the same
time. The State also argued Hill’s repeated use of his cell phone prior to the
incident and behavior after seeing the hooded individual indicated he was in
communication with a co-conspirator. Testimony showed Hill told the investigating
officer he did not know the hooded individual, and that the individual’s face was
covered when passing by the store.
Hill moved for judgment of acquittal at the close of the State’s case-in-chief,
arguing the State failed to prove the specific intent element required for conviction.
The motion was denied. Hill renewed his motion prior to closing arguments, relying
on the same argument. The motion was again denied. Hill also objected to entry
of jury instruction sixteen, an aiding-and-abetting instruction, arguing no evidence
was presented to suggest a common scheme existed. The court found “sufficient
circumstantial evidence for [instruction sixteen] to be a jury question in this case”
and submitted the instruction to the jury for deliberation.
Hill was convicted of theft in the second degree. Prior to sentencing, Hill
moved for a new trial arguing instruction sixteen was improper, insufficient
evidence supported the conviction of theft in the second degree, and neither theory
presented by the State supported the conviction. All three motions were overruled.
Hill appeals.
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II. Analysis
Hill argues instruction sixteen was both an improper statement of the law
on aiding and abetting and that it violated his constitutional rights. Hill also argues
insufficient evidence was presented to support his conviction and he received
ineffective assistance of counsel. The State challenges error preservation on both
arguments related to instruction sixteen. The State also argues sufficient evidence
was presented to support either theory of guilt and Hill’s trial counsel was
effective.1
A. Instruction Sixteen Error Preservation
The State argues Hill did not preserve error on any arguments raised on
appeal related to instruction sixteen. Specifically, the State argues the theory of
the objection at trial, that no evidence supported issuing the instruction to the jury,
does not preserve the argument raised on appeal, that the instruction misstated
the law.
Appellate courts “consider only those objections to instructions a party
previously raised with the district court.” State v. Maghee, 573 N.W.2d 1, 8 (Iowa
1997) (citing State v. Hepperle, 530 N.W.2d 735, 738 (Iowa 1995)). “A party’s
objection must be sufficiently specific to alert the district court to the basis for the
complaint,” and “a party is bound by the objection the party makes to the district
1 In its brief, the State argues this court should not consider Hill’s ineffective-
assistance claim on direct appeal. The brief was filed before our supreme court
issued a ruling on the retroactivity of newly enacted legislation limiting this court’s
ability to hear ineffective-assistance claims on direct appeal. See 2019 Iowa Acts
ch. 140, § 31 (codified at Iowa Code § 814.7 (2019)). Since that time, our supreme
court has held the legislation does “not apply to a direct appeal from a judgment
and sentence entered before July 1, 2019.” State v. Macke, 933 N.W.2d 226, 228
(Iowa 2019). Thus, we may consider the merits of the claim.
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court’s instructions and may not amplify or change the objection on appeal.” Id.
(citing Hepperle, 530 N.W.2d at 738).
Hill alleges error was preserved by objection on the record during trial, filing
post-trial motions, and filing a timely notice of appeal. At trial, Hill’s objection to
the instruction was general, insisting no evidence was provided to suggest Hill was
involved in a common scheme, let alone that one existed at all. In his post-trial
motion for new trial and in arrest of judgment Hill lodged the same complaint. At
no time did Hill argue to the district court that there was any problem with the
language contained in instruction sixteen. Hill finally argues error was preserved
by his notice of appeal.
We agree that Hill objected at trial and through post-trial motion, and the
district court ruled on both, preserving error on the argument the instruction should
not have been given at all. See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa
2002). However, no objection based on a misstatement of the requisite level of
intent was ever raised. Because the precise jury-instruction issue was not raised,
the district court could not rule and neither can we.2 See id. Error was not
preserved on arguments related to jury instruction sixteen.
B. Sufficiency of the Evidence
Challenges to sufficiency of the evidence are reviewed for corrections of
errors at law. State v. Canal, 773 N.W.2d 528, 530 (Iowa 2009). We must
2This court has previously found the argument that notice of appeal is sufficient to
preserve error is without merit. See, e.g., Friedrich v. State, No. 10-1250, 2011
WL 2112783, at *2 (Iowa Ct. App. May 25, 2011) (citing Thomas A. Mayes &
Anuradha Vaitheswaran, Error Preservation in Civil Appeals in Iowa: Perspectives
on Present Practice, Drake L. Rev. 39, 48 (Fall 2006)).
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“determine whether a rational trier of fact could have found the defendant guilty of
the offense charged beyond a reasonable doubt.” State v. Millsap, 704 N.W.2d
426, 430 (Iowa 2005) (quoting State v. Anspach, 627 N.W.2d 227, 231 (Iowa
2001)). Evidence is viewed in the light most favorable to the State. Canal, 773
N.W.2d at 530.
Instruction twelve was the marshalling instruction and informed the jury of
all the elements of theft that must be proven in this case:
The State must prove all of the following elements of Theft:
(1) On or about September 10, 2017, Jeremy Lee Hill took
possession or control of money,
(2) Jeremy Lee Hill did so with the specific intent to deprive
the owner of the money,
(3) The money, at the time of the taking, belonged to [the
convenience store].
If the State has proved all of the elements, Jeremy Lee Hill is
guilty. You must then determine the degree of Theft, as explained in
instruction No. 13. If the State has failed to prove any element,
Jeremy Lee Hill is not guilty.
Instruction fourteen defined specific intent:
Concerning Element No. 2 of Instruction No. 12, “specific intent”
means not only being aware of doing an act and doing it voluntarily,
but in addition, doing it with a specific purpose in mind.
Because determining Jeremy Lee Hill’s specific intent
requires you to decide what he was thinking when an act was done,
it is seldom capable of direct proof. Therefore, you should consider
the facts and circumstances surrounding the act to determine
Jeremy Lee Hill’s specific intent. You may, but are not required to,
conclude a person intends the natural results of his acts.
Instruction sixteen, the subject of Hill’s objection, instructed the jury on the aiding-
and-abetting theory.
All persons involved in the commission of a crime, whether they
directly commit the crime or knowingly “aid and abet” its commission,
shall be treated in the same way.
“Aid and abet” means to knowingly approve and agree to the
commission of a crime, either by active participation in it or by
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knowingly advising or encouraging the act in some way before or
when it is committed. Conduct following the crime may be
considered only as it may tend to prove [Hill’s] earlier participation.
Mere nearness to, or presence at, the scene of the crime, without
more evidence, is not “aiding and abetting.” Likewise, mere
knowledge of the crime is not enough to prove “aiding and abetting.”
The guilt of a person who knowingly aids and abets the
commission of a crime must be determined only on the facts which
show the part he has in it, and does not depend upon the degree of
another person’s guilt[.]
If you find the State has proved Jeremy Lee Hill directly
committed the crime, or knowingly “aided and abetted” other
person(s) in the commission of the crime, then Jeremy Lee Hill is
guilty of the crime charged.
We must consider, based on the instructions given, whether a rational jury
could find Hill deprived the convenience store of money that lawfully belonged to
the store. During closing arguments, Hill’s counsel admitted “Hill took the money”
and “[i]t was [the convenience store]’s money.” But counsel argued Hill had no
specific intent to steal the money. According to the instructions, jurors were
allowed to consider whether Hill acted alone or in concert with another. The jury
heard testimony that Hill moved his vehicle to a location that was not in view of
security cameras but was in his personal line of sight. Testimony showed Hill was
not accustomed to locking his vehicle but was aware of the risk of theft and was
also aware he was not in compliance with the store’s policy regarding daily
deposits. Hill initially told law enforcement he left the deposits in his vehicle to
retrieve his cell phone from inside the store, but video and testimonial evidence
revealed he had the phone on his person throughout the time in question. The jury
was also able to view Hill’s physical reaction to seeing the hooded individual walk
past the store and his immediate act to retrieve the deposits. Surveillance footage
shows Hill saw the hooded individual, stood upright, paced, leaned on the counter,
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paced again, and then reached for the deposits mere seconds later. Footage of
the front of the store shows the hooded individual loitered at the front of the store
and Hill turned his head to look in that direction as he passed out of one camera’s
view while delivering the deposits to his vehicle. Based on the evidence presented
at trial, a rational jury could have found Hill guilty of theft in the second degree,
either directly or by the aiding-and-abetting theory.
C. Ineffective Assistance of Counsel
Hill argues his trial counsel was ineffective in failing to object to the
language contained in jury instruction sixteen. Hill argues the instruction should
have contained an additional paragraph informing the jury of the appropriate level
of intent required for conviction pursuant to an aiding-and-abetting theory. The
State argues this court should not consider the ineffective-assistance claim, and
urges us to preserve the claim for postconviction-relief proceedings.
Claims of ineffective assistance of counsel are reviewed de novo. State v.
Clay, 824 N.W.2d 488, 494 (Iowa 2012). Ineffective-assistance claims are
ordinarily preserved for postconviction-relief proceedings but may be addressed
on direct appeal if the record is adequate. Id. In order to succeed on an ineffective-
assistance claim, the claimant must prove “(1) counsel failed to perform an
essential duty; and (2) prejudice resulted.” Id. at 495 (quoting State v. Maxwell,
743 N.W.2d 185, 195 (Iowa 2008)). Both prongs of the test must be satisfied. Id.
In prior cases, this court has found a breach of duty when trial counsel failed
to object to incomplete jury instructions similarly omitting the specific-intent
language. Daniels v. State, No. 18-0672, 2019 WL 6894225, at *5 (Iowa Ct. App.
Dec. 19, 2019); State v. Vinsick, No. 17-1344, 2018 WL 3472043, at *5–6 (Iowa
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Ct. App. July 18, 2019); State v. Burton, No. 12-2223, 2013 WL 5760635, at *5
(Iowa Ct. App. Oct. 23, 2013). The specific-intent paragraph states:
The crime charged requires a specific intent. Therefore, before you
can find the defendant “aided and abetted” the commission of the
crime, the State must prove the defendant either has such specific
intent or “aided and abetted” with the knowledge that others who
directly committed the crime had such specific intent. If the
defendant did not have the specific intent, or knowledge the other
had such specific intent, [the defendant] is not guilty.
The facts of this case follow a similar line. A general specific intent instruction was
given individually. But, the paragraph defining specific intent pursuant to the
aiding-and-abetting theory was omitted in paragraph sixteen. Trial counsel did not
object to the instruction for the failure to include the specific-intent paragraph. As
our court found in the cases listed above, we believe the failure in this case
constitutes a breach of duty.
Turning to the prejudice prong of the test, we must ask “whether a
reasonable probability exists that the result of the trial would have been any
different without ineffective assistance of counsel.” Ledezma v. State, 626 N.W.2d
134, 148 (Iowa 2001). “Jury instructions are not considered separately; they
should be considered as a whole.” State v. Fintel, 689 N.W.2d 95, 104 (Iowa
2004). Hill argues our analysis in State v. Burton should apply to the case at bar.
See 2013 WL 5760635, at *4–5. In Burton, the defendant was prosecuted only on
a theory of aiding-and-abetting willful injury causing bodily injury and was found
guilty. Id. at *1. The aiding-and-abetting instruction lacked the specific-intent
language. Id. In Burton, it appears there was no separate jury instruction defining
or explaining specific intent as an element. Id. at *5. That error was compounded
by the missing specific-intent paragraph in the aiding-and-abetting instruction. Id.
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Thus, “the jury could convict Burton of willful injury without finding either that she
personally possessed the specific intent to cause serious injury when she aided
and abetted her co-defendants in the attack or that she had knowledge her co-
defendants had specific intent to cause serious injury.” Id. The present case
differs from Burton in that Hill was prosecuted both as a principal and as an aider
and abettor, and instruction fourteen defined the requisite level of intent, specific
intent, required for the theft conviction as a principal.
Our supreme court’s opinion in State v. Kuhse is instructive. See ___
N.W.2d ___, ___, 2020 WL 250542, at *1 (Iowa 2020). Kuhse discusses cases
involving claims of ineffective assistance of counsel related to allegedly erroneous
jury instructions. Id. at *5–6. Following the Kuhse analysis, we must “examine the
record and consider the evidence presented, how the case was tried, and what the
jury instructions as a whole said” in order to determine whether prejudice resulted.
Id. at *6. In Kuhse, our supreme court noted that both prosecution and defense
counsel made justification, the omitted instruction language, a primary portion of
closing arguments. Id. The court stated, “[t]his helped confirm for the jury that
justification was an essential part of its deliberations and that the State had to prove
‘the Defendant was not acting with justification.’” Id. The court also discussed the
“strong evidence that Kuhse did not act with justification” including photos of
injuries to both Kuhse and the target of the domestic abuse. Id. Finally, the court
discussed testimony and physical evidence presented. Id. at *7. Ultimately, the
court found there was no “reasonable probability of a different outcome if the
marshalling instruction . . . had included or cross-referenced lack of justification.”
Id.
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In the case at bar, the jury was instructed on specific intent by instruction
fourteen and was aware specific intent was required for conviction. The evidence
showed Hill exited the convenience store with the money and no money was ever
recovered. The surveillance video shown at trial proves Hill’s story about
reentering the store to retrieve his cell phone was a fabrication; Hill was in
possession of his cell phone during the relevant period of time. The evidence
presented on the timing of the hooded individual’s appearance, Hill’s immediate
reaction, the routes both people took around the building, and Hill’s cell phone use
would lead a reasonable juror to find Hill either intended to deprive the
convenience store of the deposits or acted in concert with another person who he
knew had that intent. Even if the jury received instruction sixteen with the requisite
language on specific intent it is unlikely a reasonable jury could come to the
conclusion Hill did not possess specific intent. Our confidence in the outcome of
the trial is not undermined. See State v. Graves, 668 N.W.2d 860, 882–83 (Iowa
2003). Thus, no prejudice has resulted and Hill’s ineffective-assistance claim fails.
Clay, 824 N.W.2d at 495.
III. Conclusion
Sufficient evidence was presented at trial to support Hill’s conviction of theft
in the second degree. It was a breach of trial counsel’s duty to fail to object when
the specific-intent language was omitted from instruction sixteen on aiding and
abetting. However, when considering the jury instructions provided as a whole
and the evidence presented at trial there is no reasonable probability a different
outcome would have resulted if the jury received the aiding-and-abetting
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instruction with the specific-intent language included. Hill suffered no prejudice.
Thus, we affirm Hill’s conviction.
AFFIRMED.