                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-0937
                             Filed October 11, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

TODD ORRIN GRANT,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Jeanie K. Vaudt,

Judge.



      A defendant appeals his conviction of theft in the second degree.

CONVICTION AFFIRMED; SENTENCE VACATED IN PART AND REMANDED

FOR RESENTENCING.



      Mark C. Smith, State Appellate Defender, and Bradley M. Bender,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant

Attorney General, for appellee.



      Considered by Vogel, P.J., and Potterfield and Mullins, JJ.
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VOGEL, Presiding Judge.

       Todd Grant appeals his conviction for second-degree theft, in violation of

Iowa Code sections 714.1(4), 714.2(2) (2015), and the habitual offender

sentencing enhancement imposed pursuant to section 902.8.               He claims the

evidence was insufficient to support his conviction, the verdict is against the

weight of the evidence,1 and the district court abused its discretion during

sentencing.

    I. Background Facts and Proceedings

       On November 29, 2015, Andre Carl and his family returned home from

out-of-state Thanksgiving gatherings. When they arrived home, Carl noticed his

vehicle was not in the driveway and the front door was unlocked. As he entered

the home, the entire house appeared to have been ransacked. Carl immediately

called the police and his insurance company.

       Detectives with the City of West Des Moines Police Department searched

Robert Brooks’s residence in relation to a separate investigation.              Brooks

consented to the search, and the detectives located a Green Bay Packers stock

certificate belonging to Andre Carl. Brooks eventually stated he received the

certificate from his step-nephew, Todd Grant, and the detectives notified the Des

Moines Police Department.       Once provided with Grant’s current location, the

detectives and the Des Moines police took Grant into custody in the parking lot of

an apartment complex.       Grant’s girlfriend, Jennifer Lumley, approached and

1
 Trial counsel argued there was insufficient evidence in the record and the jury verdict
was contrary to the weight of the evidence. The district court considered both
arguments and ruled on them accordingly. Therefore, error was preserved and we need
not address the argument under the alternate framework of ineffective assistance of
counsel.
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indicated she lived at the apartment.           Lumley consented to a search of her

apartment where a set of keys was located, one of which opened the padlock to

Lumley’s seldom-used hallway storage closet.              To Lumley’s surprise, the

detectives found the storage closet packed full with approximately twenty bags,

each containing many miscellaneous items.

       Carl was able to identify three or four bags exclusively containing his

property, in addition to one piece of luggage.           The bags contained various

clothing items, some toiletries, and a few electronics.

       Grant was charged with theft in the second degree. The charge alleged

“the theft of any property exceeding one thousand dollars but not exceeding ten

thousand dollars in value.” See Iowa Code § 714.2(2). The sentence was also

enhanced due to Grant’s status as a habitual offender pursuant to section 902.8.

A jury found Grant guilty of second-degree theft. The court sentenced him to a

term of fifteen years with a mandatory minimum of three years, imposed and then

suspended “a $750 fine plus surcharge,”2 and ordered the term of incarceration

to run consecutively with Grant’s probation-violation sentence. Grant appeals.

    II. Scope of Review

       We review claims of insufficient evidence for errors at law. State v. Rohm,

609 N.W.2d 504, 509 (Iowa 2000). We will “uphold a finding of guilt if ‘substantial

evidence’ supports the verdict.” Id. “‘Substantial evidence’ is evidence upon


2
 We assume the surcharge the sentencing court referenced in this part of its sentencing
order was the thirty-five percent surcharge pursuant to Iowa Code section 911.1.
Because the fine was entirely suspended, the surcharge was likewise entirely
suspended. See Iowa Code § 911.1(3) (“When a fine or forfeiture is suspended in whole
or in part, the court shall reduce the surcharge in proportion to the amount suspended.”).
The court also imposed the law enforcement initiative surcharge under section 911.3,
but the imposition of that surcharge is not at issue in this appeal.
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which a rational finder of fact could find a defendant guilty beyond a reasonable

doubt.” Id. “We generally review rulings on motions for new trial asserting a

verdict is contrary to the weight of the evidence for an abuse of discretion.” State

v. Ary, 877 N.W.2d 686, 706 (Iowa 2016).

       “We review sentencing challenges for errors at law.” State v. Liddell, 672

N.W.2d 805, 815 (Iowa 2003). “A sentence will not be upset on appellate review

unless the defendant demonstrates an abuse of trial court discretion or a defect

in the sentencing procedure, such as trial court consideration of impermissible

factors.” Id. (citation omitted).

   III. Sufficiency of the Evidence

       Grant asserts there is insufficient evidence in the record to show he

possessed the stolen property, he knew the property was stolen, and the stolen

property exceeded $1000. See Iowa Code § 714.2(2).

       Brooks testified he received a Green Bay Packers certificate from Grant.

Because the certificate had Carl’s name on the front, Grant would have known he

was in possession of Carl’s property.

       The jury was instructed that possession could include both actual and

constructive possession.       The jury instruction further defined both types of

possession:

              A person who has direct physical control over a thing on his
       person is in actual possession of it.
              A person who, although not in actual possession, has both
       the power and the intention at a given time to exercise dominion or
       control over a thing, either directly or through another person or
       persons, is in constructive possession of it.
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      In addition to the evidence Grant actually possessed and gave the

certificate to Brooks, the State offered evidence Grant frequently stayed at his

Lumley’s apartment, had access to the apartment’s storage closet, and the

storage closet contained the stolen property. Lumley testified that before the

police searched the storage closet, she had not used it for more than one year

and she only stored an air conditioner and a Christmas tree in the closet. She

also testified Grant had access to the storage closet and had equipped it with a

padlock. The key to the padlock was found in Lumley’s apartment. Further,

when officers showed Lumley the quantity of bags and luggage in her storage

closet, she seemed visibly shocked and did not recognize any of the items. The

property manager testified he saw Grant enter the storage closet and noticed “a

lot of stuff” in the closet, and he also knew Grant’s girlfriend only stored a

Christmas tree and an air conditioner in the storage closet. Therefore, the record

contains substantial evidence supporting the jury’s conclusion that Grant

possessed property and knew the property was stolen.

      The jury was also presented with evidence of the contents and the value

of Carl’s items. Pursuant to section 714.3, “[t]he value of property is its highest

value by any reasonable standard at the time that it is stolen.” The reasonable

standard “includes but is not limited to market value within the community, actual

value, or replacement value.” Iowa Code § 714.3. Testimony about value “is

liberally received, with its weight to be determined by the jury.” State v. Savage,

288 N.W.2d 502, 504 (Iowa 1980). An owner of the property is competent to

testify to its value. State v. Boyken, 217 N.W.2d 218, 220 (Iowa 1974). When

questioned as to how he arrived at a value, Carl stated:
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      I did a little bit of Internet research. I went out and tried to find the
      items that I knew were missing. If I could find them, I provided the
      insurance company the link so that they knew exactly what I was
      talking about in addition to the description. In those items that I
      couldn’t find the exact one, I got as close as I could.

      Carl testified to the value of each piece of clothing stolen, along with a

bottle of cologne and a piece of luggage. In all, Carl testified the stolen property

was worth approximately $2000. Having heard Carl’s testimony about the value

he assigned to each piece of property and how he arrived at each estimate, the

jury was free to accept or reject the testimony.        See State v. Sanford, 814

N.W.2d 611, 615 (Iowa 2012).           Substantial evidence supports the jury’s

conclusion that the value of the stolen property exceeded $1000.

      Accordingly, substantial evidence supports the jury’s conclusion that Grant

possessed Carl’s property, knew the property to be stolen, and the value of the

stolen property exceeded $1000.

   IV. Weight of the Evidence

      Grant contends the jury verdict was contrary to the weight of the evidence

and the district court should have granted his motion for new trial. The weight of

the evidence refers to a determination by the trial court that “a greater amount of

credible evidence supports one side of an issue or cause than the other.” State

v. Ellis, 578 N.W.2d 655, 658 (Iowa 1998) (citation omitted).

      In ruling on Grant’s motion for a new trial, the district court stated:

      I have carefully reviewed the motion for new trial/motion in arrest
      of judgment . . . .
              I’m going to deny the motion for new trial/motion in arrest of
      judgment. I don’t think the jury’s verdict was contrary to the law or
      the weight of the evidence, and I don’t believe that any miscarriage
      of justice occurred here.
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       The record indicates the district court made an independent evaluation of

the evidence and assessed the credibility of the witnesses presented at trial. In

evaluating the jury’s verdict, the district court looked to Grant’s connection with

Carl’s property starting with the Green Bay Packers certificate, Grant’s

connection with Lumley’s storage locker, and Grant’s control over the locker as

established from testimony by both Lumley and the property manager. As a

result, we conclude the court did not abuse its discretion in denying Grant’s

motion for new trial.

   V. Sentencing

       The district court sentenced Grant to a term of fifteen years with a

mandatory minimum of three years, imposed and then suspended a fine of $750

and the thirty-five percent surcharge, and ordered the sentence to run

consecutively with Grant’s probation violation sentence. Grant argues the district

court was without statutory authority to impose a fine and erred in relying on

section 908.10 as the basis to impose consecutive sentences.                   The State

concedes error in the assessment of the fine.              See Iowa Code §§ 902.8

(excluding any mention of a fine for habitual offenders); 902.9(1)(c) (same); cf.

902.9(1)(e) (stating the maximum sentence for a class “D” felon who is not a

habitual offender may include a fine). Likewise, the imposition of the thirty-five

percent surcharge was improper as that surcharge is dependent upon the

imposition of a fine.     See id. § 911.1(1) (“When a court imposes a fine or

forfeiture for a violation of state law, . . . the court or the clerk of the district court

shall assess an additional penalty in the form of a criminal penalty surcharge

equal to thirty-five percent of the fine or forfeiture imposed.”).
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       The State also agrees the court erred in citing Iowa Code section 908.10

as the justification for imposing consecutive sentences, which applies to felonies

committed while on parole. This section is inapplicable to Grant because he was

not on parole but on probation at the time the offense was committed. Compare

id. § 908.10 (addressing offenses committed while on parole), with id. § 908.11

(addressing violations of probation); see also id. § 901.5(9)(c) (requiring the court

to announce whether multiple sentences will be served consecutively or

concurrently for an aggravated misdemeanor or felony).             We vacate the

suspended fine with the thirty-five percent surcharge and the imposition of

consecutive sentences. We remand to the district court for resentencing.

   VI. Conclusion

       We affirm Grant’s conviction and judgment.        However, we vacate the

portion of the sentencing order that imposed and suspended the fine with the

thirty-five percent surcharge and the portion that ordered consecutive sentences

pursuant to section 908.10, and we remand for resentencing.

       CONVICTION AFFIRMED; SENTENCE VACATED IN PART AND

REMANDED FOR RESENTENCING.
