State v. Hustead

538 N.W.2d 867, 1995 Iowa App. LEXIS 93, 1995 WL 616949
CourtCourt of Appeals of Iowa
DecidedJune 27, 1995
Docket94-456
StatusPublished
Cited by13 cases

This text of 538 N.W.2d 867 (State v. Hustead) is published on Counsel Stack Legal Research, covering Court of Appeals of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Hustead, 538 N.W.2d 867, 1995 Iowa App. LEXIS 93, 1995 WL 616949 (iowactapp 1995).

Opinion

CADY, Judge.

This is an appeal by Clayton Hustead from his convictions for burglary in the second degree and theft in the first degree. Hu-stead was charged and convicted as an aider and abettor. He presents three issues on appeal. Hustead challenges the court’s jurisdiction over the offenses, sufficiency of the evidence, and denial of his motion for new trial based on the alteration of a trial exhibit. We affirm the convictions.

For a period of several years, beginning in 1988, Jerry Kleiss and two other individuals regularly burglarized farm sheds and businesses in southern Iowa. They would then sell the stolen merchandise and property to various individuals in Kansas and Missouri, including Clayton Hustead. Kleiss and his two companions were Iowa residents. Hu-stead resided in Missouri and operated an auctioneer business and a flea market.

There was testimony at trial that Kleiss and Hustead entered into an arrangement for Hustead to purchase the stolen property. The scheme required Kleiss to telephone Hu-stead in Missouri and ask him if he had any “tylenol.” An affirmative response by Hu-stead was the signal that Hustead would buy the merchandise. Kleiss and the others would then burglarize a pre-arranged location and drive to Missouri to deliver the stolen property to Hustead. The arrangement between Kleiss and Hustead included an understanding of the general type of property Hustead desired. The property included batteries, John Deere toys, and welding and farm equipment.

Kleiss sold property to Hustead on numerous occasions, including February 20, 1990. The evidence at trial indicated that Kleiss placed a telephone call to Hustead on February 19, and then burglarized the McGahuey Implement Dealership in Leon, Iowa during the evening hours. Kleiss and the others removed John Deere toys, chain saws, weed eaters, farm equipment, and a copy machine from the dealership. They then drove to Missouri and delivered the items to an abandoned farm house as directed by Hustead.

The State and Hustead stipulated at trial to the telephone numbers of Hustead and Kleiss. The stipulation inadvertently transposed the last four digits of one of the numbers for Kleiss so that it read 319-524-6121. This stipulation was read to the jury at trial.

Prior to trial an agent of the State Division of Criminal Investigation prepared a proposed exhibit of the relevant telephone records, which included a key showing the telephone numbers of Kleiss and Hustead. As the agent was reviewing the proposed exhibit before trial, she noticed the typographical error on one of the numbers assigned to Kleiss. This number read 319-524-6121 instead of 319-524-2161. The key was then changed by the agent to show the correct telephone number. This was done without notifying counsel and before the proposed exhibit was offered into evidence. The proposed exhibit was subsequently admitted into evidence without objection. The agent testified that the suffix of Kleiss’s phone number was 2161. Defense counsel discovered the discrepancy between the stipulation and the exhibit during closing argument, and subsequently moved for a new trial. The district court denied the motion.

I. Sufficiency of Evidence

Defendant first argues that he cannot be convicted of aiding and abetting in the burglary and theft because there was insufficient evidence to show he planned or participated in the specific crimes or had any knowledge of the specific crimes prior to the time they were committed.

Aiding and abetting in a crime occurs when a person assents to or lends countenance and approval to another’s criminal act either by active participation or by encouraging it in some manner prior to or at the time of its commission. State v. Lott, 255 N.W.2d 105, 107 (Iowa 1977). It is essential that the aider and abettor have knowledge of the perpetrator’s criminal activity prior to its commission. State v. Vesey, 241 N.W.2d 888, *870 891 (Iowa 1976). An accused may not be convicted as a principal on the theory of aiding and abetting for conduct that only supports an accessory after the fact. State v. Barnes, 204 N.W.2d 827, 829 (Iowa 1972).

Knowledge of the crime may be shown by circumstantial evidence. State v. Buttolph, 204 N.W.2d 824, 825 (Iowa 1972). This evidence may include “presence, companionship, and conduct before and after the offense is committed.” Id. The subsequent conduct, however, is relevant only as it shows the accused’s prior encouragement or participation. Barnes, 204 N.W.2d at 828-29.

In reviewing the sufficiency of the evidence, we consider the record in a light most favorable to the state. State v. Martin, 341 N.W.2d 728, 729 (Iowa 1983). We draw all legitimate inferences and presumptions which may fairly and reasonably be deduced from the record. State v. Bass, 349 N.W.2d 498, 500 (Iowa 1984).

In this case, we believe the evidence supports the inference that Hustead knew Kleiss planned to burglarize some business or building and steal selected items. This is derived from the general scheme or arrangement between Hustead and Kleiss for Hustead to purchase merchandise from Kleiss, the frequency of the transactions, and telephone call made prior to the commission of the McGa-huey Implement burglary and theft.

There was no evidence, however, that Hu-stead had knowledge Kleiss planned to burglarize the McGahuey Implement Dealership, or any other specific place. It is only reasonable to infer that Hustead had prior knowledge of the general activities of Kleiss. Thus, the precise question we confront is whether an aider and abettor must have knowledge of the specific crime committed by the perpetrator before a conviction can result.

The underlying precept of aiding and abetting is that the accessory be associated in some way with the venture, participates in it as something he or she wishes to bring about, and seeks to make it succeed by his or her actions. Lott, 255 N.W.2d at 108 (quoting United States v. Peoni, 100 F.2d 401, 402 (2nd Cir.1938)). The focus is on the “common purpose among two or more persons to commit a crime.” See State v. Horrell, 260 Iowa 945, 948, 151 N.W.2d 526, 529 (Iowa 1967). Any participation in a general felonious plan will normally support a conviction as a principal. Id; see State v. Kneedy, 232 Iowa 21, 28, 3 N.W.2d 611, 615 (Iowa 1942). We also observe that an aider and abettor is not required to possess the intent to commit the crime, but is only required to have knowledge that the perpetrator possess the intent. Lott, 255 N.W.2d at 109.

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Bluebook (online)
538 N.W.2d 867, 1995 Iowa App. LEXIS 93, 1995 WL 616949, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hustead-iowactapp-1995.