State v. Johnson

222 N.W.2d 483, 1974 Iowa Sup. LEXIS 1147
Supreme Court of Iowa·Decided October 16, 1974·No. 56585·Published·Cited by 20 cases

Opinion

McCORMICK, Justice.

Defendant appeals his conviction by jury and sentence for conspiracy in violation of Code § 719.1. The State alleged he conspired with others to commit grand larceny of a Pay-Less self-service shoe store in Waterloo on August 1, 1972. Defendant contends trial court erred in overruling his motion in limine, in overruling his objection to certain evidence, and in overruling his two motions for mistrial based on alleged prosecutor misconduct. We reverse and remand because we believe one of the motions for mistrial should have been sustained.

Reviewed in its light most favorable to the verdict, the evidence showed defendant and two other men attempted to steal money from the cash register of a Pay-Less shoe store in Waterloo during the morning of August 1, 1972, using a technique called “tilltapping.” This technique usually involves at least two perpetrators, one of whom distracts the clerk while the cash register is open during a purchase transaction long enough to permit the other to reach into the cash drawer and take money. The attempted theft was aborted in this case because the clerk was not distracted long enough. He slammed the cash drawer shut just as defendant was reaching for the money.

*485 An accomplice, Alfred King, had distracted the clerk by dropping change on top of and behind the counter during a purchase of shoe laces. After the cash drawer was slammed shut King paid for the shoe laces and left the store with defendant. Just as the clerk was about to follow them, he saw a third man, defendant’s brother James, walking slowly from the rear toward the front of the store. When the clerk was finally able to leave the store he was unable to see where the others had gone.

I. The minutes of testimony attached to the county attorney’s information showed the State intended to offer evidence of a similar incident in Dubuque which allegedly occurred four days earlier. Defendant filed a motion in limine challenging the admissibility of that evidence. He alleged the evidence was not relevant because it showed only an unrelated crime. He also alleged the State could not prove defendant was involved in it. After hearing, trial court overruled the motion. The case proceeded to trial. During trial the State offered evidence of the Dubuque incident. Defendant objected to this evidence on two occasions, but trial court reserved ruling. Defendant did not request ruling at any time nor did he move to strike the testimony.

He assigns the ruling on his motion in limine as error. We recently discussed the purpose and function of a motion in limine, and distinguished it from a motion to suppress evidence, in Twyford v. Weber, 220 N.W.2d 919 (Iowa 1974). Reversible error cannot be predicated on an order overruling a motion in limine. It must be predicated on a record made during trial when the evidence is. offered. Ibid; State v. Hinsey, 200 N.W.2d 810, 817 (Iowa 1972), and citations; see State v. Cage, 218 N.W.2d 582 (Iowa 1974).

Since defendant attempts to predicate error on the order overruling his motion in limine rather than a record made at trial, he has failed to present a proper issue for review in this assignment of error.

In addition, because he did not request rulings at any time on his trial objections, defendant did not make a record at trial upon which he could predicate error. An objection not ruled on in the trial court, when there has been no request for ruling, does not preserve error. State v. Schiernbeck, 203 N.W.2d 546, 547 (Iowa 1973), and citations.

For guidance of the court on retrial, since the case is being reversed on another ground, we note the State represented during the hearing on the motion in limine that defendant would be identified as one of the perpetrators of the alleged offense in Du-buque. This representation may have led trial court to overrule the motion and later reserve ruling on the objections made at trial. As it turned out, defendant was not identified as a participant in the Dubuque incident. The State’s evidence showed that offense was committed by two men, only one of whom, Alfred King, was identified. In addition, there was no evidence defendant was involved in a conspiracy to commit that offense, nor did evidence of that offense itself purport to prove the conspiracy alleged in this case. See 3 Underhill’s Criminal Evidence, § 862 (Fifth Ed. 1957).

The general rule is that evidence showing the commission of crimes other than one with which a defendant is charged is inadmissible. The rule is subject to well established exceptions. See State v. Wright, 191 N.W.2d 638 (Iowa 1971). In order to permit evidence of another crime under any of the exceptions to the general rule, there must be satisfactory proof that the accused was culpable in that crime. State v. Armstrong, 183 N.W.2d 205 (Iowa 1971) cert. denied 414 U.S. 857, 94 S.Ct. 163, 38 L.Ed.2d 108; see State v. Hopkins, 192 N.W.2d 747 (Iowa 1971); State v. Orozco, 190 N.W.2d 830 (Iowa 1971). No such proof was presented in this case.

We also note trial court did not follow our frequent admonition that, “Careful procedure dictates the trial court’s order on *486 a motion in limine should prohibit disclosure of questionable evidence until the court during trial in the jury’s absence has been presented an offer and objection.” State v. Johnson, 183 N.W.2d 194, 197 (Iowa 1971).

II. In another assignment of error defendant contends trial court erred in admitting secondary evidence of ownership of a motor vehicle. Defendant tendered a defense of alibi, asserting he was not in Waterloo on August 1, 1972, but was with Alfred King in Des Moines and Davenport. He said he and King were using King’s 1965 Pontiac automobile on that date.

In rebuttal, the State sought to show King’s automobile was seen in Waterloo that afternoon at a time defendant asserted it was in Davenport. An officer was asked for the result of a motor vehicle registration check which he caused to be made of the license number of a 1965 Pontiac observed in Waterloo that date. An objection was made that his testimony giving the result of that inquiry was “not the best evidence” and was overruled. He testified the vehicle was owned by King.

The objection should have been sustained. The officer’s testimony was not the best evidence of what the motor vehicle registration records showed. United States Homes, Inc. v. Yates, 174 N.W.2d 402 (Iowa 1970); see State v. Hoffer, 197 N.W.2d 368 (Iowa 1972). The record itself, or a duly certified copy, should have been offered. See § 622.43, The Code.

However, the ruling could not be reversible error.

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State v. Johnson, 222 N.W.2d 483, 1974 Iowa Sup. LEXIS 1147 (iowa 1974).

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