                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-1798
                             Filed October 25, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

RAMONA MAE VERDINEZ,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Marshall County, John J. Haney,

Judge.



      A defendant appeals her conviction for second-degree theft. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Nan Jennisch, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Thomas J. Ogden, Assistant

Attorney General, for appellee.



      Considered by Vogel, P.J., and Potterfield and Mullins, JJ.
                                         2


VOGEL, Presiding Judge.

       Ramona Verdinez was convicted of second-degree burglary, second-

degree theft, and using a juvenile to commit certain offenses. Her argument on

appeal is limited to her assertion there is insufficient evidence she committed

second-degree theft under the theory of joint criminal conduct. We conclude

there is substantial evidence Verdinez committed burglary as an aider and

abettor, and, therefore, the flawed joint criminal conduct instruction does not

require reversal.

   I. Background Facts and Proceedings

       From the evidence presented at trial, the jury could have found the

following: On July 13, 2016, Verdinez drove a juvenile, P.S., to a rural property

near Marshalltown, arriving at the property at approximately 12:30 a.m. Verdinez

had equipped P.S. with two backpacks, gloves, and a flashlight; P.S. was armed

with her own two pocket knives “for [her] protection” and a flashlight. Verdinez

instructed P.S. to knock on the front door but to enter through a nearby window if

the door was locked. She agreed they would split whatever property P.S. could

find and promised to stay in the car to provide a lookout.

       P.S. entered through the window and initially believed the house was

vacant, as Verdinez had told her. However, before entering, she had seen a light

in an upstairs window, and after entering, she noticed laundry, dishes in the sink,

and other indications someone was living in the house. She decided she would

“go hard” and quickly took a computer and office supplies to the car where

Verdinez was waiting. Verdinez told her to put the items in the back seat and to
                                        3


re-enter the home to look for a vacuum cleaner. P.S. re-entered and took two

computer mice, an assortment of jewelry, shoes, and a pack of cigarettes.

      Before she could leave the house, officers responded to a 911 call placed

by the home’s occupant from an upstairs bedroom. They found Verdinez in the

driver’s seat of the car and P.S. still inside the house. The officers found the

computer in the backseat of the car, and P.S.’s pockets were full with the small

items she had taken.

      On July 22, 2016, the county attorney charged Verdinez with first-degree

burglary, in violation of Iowa Code section 713.3 (2016); second-degree theft, in

violation of Iowa Code section 714.2(2); and using a juvenile to commit certain

offenses, in violation of Iowa Code section 709A.6; and alleged the habitual

offender sentencing enhancement was applicable to Verdinez, pursuant to Iowa

Code section 902.8. After a jury trial, Verdinez was found guilty of second-

degree burglary, second-degree theft, using a juvenile to commit certain

offenses, and of being a habitual offender.

      On October 14, 2016, the district court sentenced Verdinez to three terms

of fifteen years in prison, with two terms running concurrently and the third

running consecutively to the other two terms. The sentences were suspended,

and Verdinez was placed under the probationary supervision of the Iowa

Department of Correctional Services for five years.

      Verdinez appeals.
                                            4


    II. Standard of Review

       The court reviews sufficiency of the evidence challenges for corrections of

errors at law. State v. Keopasaeuth, 645 N.W.2d 637, 639–40 (Iowa 2002). We

will consider the evidence to be substantial if it can convince a rational fact finder

that the defendant is guilty beyond a reasonable doubt. State v. Sanford, 814

N.W.2d 611, 615 (Iowa 2012). We review jury instructions for corrections of

errors at law. State v. Frei, 831 N.W.2d 70, 73 (Iowa 2013).

    III. Joint Criminal Conduct

       Verdinez challenges the sufficiency of the evidence to support the

conviction of second-degree theft under the theory of joint criminal conduct.1 The

jury was instructed on both joint criminal conduct and aiding and abetting, but

they were given a general verdict form with no indication which theory the jury

accepted.    Because Verdinez asserts there is insufficient evidence that she

committed second-degree theft by joint criminal conduct, she claims her

conviction should be vacated and remanded to the district court for a new trial.

       The district court provided the following on joint criminal conduct:

       When two or more persons act together and knowingly commit a
       crime, each is responsible for the other’s acts done in furtherance
       of the commission of the crime or escape from the scene. The
       defendant’s guilt is the same as the other person’s unless the act(s)
       could not reasonably be expected to be done in furtherance of the
       commission of the crime.


1
  A party ordinarily must raise an issue, and the district court must rule on that issue to
ensure preservation for appellate review. State v. Williams, 695 N.W.2d 23, 27 (Iowa
2005) (“[W]hen the motion for judgment of acquittal did not make reference to the
specific elements of the crime on which the evidence was claimed to be insufficient, it
did not preserve the sufficiency of the evidence issue for review.”). The record
establishes the district court heard and ruled on Verdinez’s motion for judgment of
acquittal regarding the joint-criminal-conduct theory. Thus, the issue has been
preserved for our review.
                                          5


       Joint criminal conduct “contemplates two acts—the crime the joint actor

has knowingly participated in, and a second or resulting crime that is unplanned

but could reasonably be expected to occur in furtherance of the first one.” State

v. Rodriguez, 804 N.W.2d 844, 852 (Iowa 2011). To prove joint criminal conduct,

the State was required to demonstrate four elements: (1) Verdinez acted in

concert with another, (2) Verdinez knowingly participated in a public offense, (3)

a different crime was committed by another participant in furtherance of

Verdinez’s offense, and (4) the commission of the different crime was reasonably

foreseeable. See State v. Smith, 739 N.W.2d 289, 294 (Iowa 2007) (citing Iowa

Code § 703.2). Verdinez challenges the proof of the third element, arguing the

district court committed reversible error submitting the joint-criminal-conduct

instruction because the theft was not committed “in furtherance of” the initial

burglary offense but, rather, a separate offense committed after the burglary was

completed. See State v. Tyler, 873 N.W.2d 741, 752 (Iowa 2016) (explaining

joint criminal conduct requires the second crime to be unplanned but reasonably

expected to occur in furtherance of the first crime).

       In Tyler, our supreme court required a retrial when a flawed submission of

a joint-criminal-conduct instruction may have tainted the jury verdict. 853 N.W.2d

at 754. In Tyler, there were arguably two crimes—namely, Tyler’s initial hitting

Daughenbaugh in the face and then the subsequent group beating. State v.

Shorter, 893 N.W.2d 65, 76 (Iowa 2017). It was possible the jury did not believe

Tyler was guilty of second-degree murder as a principal or as an aider and

abettor but instead concluded that liability for murder arose only out of joint

criminal conduct. Id.
                                             6


       While Verdinez and P.S. claim they did not intend to commit a theft when

they arrived at the house, the record contains evidence that suggests otherwise.

Verdinez gave P.S. two backpacks and gloves, P.S. was armed with two knives

and a flashlight, and they agreed to split whatever P.S. took, all indicating an

intent to commit theft. Since intent to commit a theft is a necessary element of

burglary under this set of facts,2 committing the theft cannot be considered an

unplanned event under joint criminal conduct.

       Our supreme court recently held that a “flawed joint criminal conduct

instruction does not require reversal as long as there is no opportunity for the

defendant to be found guilty based on anything other than the defendant’s own

conduct as a principal or aider and abettor of the crime charged.” Id. (internal

citations omitted). Accordingly, there is substantial evidence Verdinez committed

the theft as an aider and abettor.3 Verdinez and P.S. drove to the house with

backpacks and gloves, intending to commit a theft. P.S. and Verdinez agreed to

split whatever P.S. could find and Verdinez stood watch in the car while P.S.

brought the computer and office supplies to the backseat.                 Thus, Verdinez

assented to and encouraged P.S.’s conduct.              As a result, the flawed joint-

criminal-conduct instruction does not require reversal as Verdinez was an aider




2
  Burglary is defined as “any person, having the intent to commit a felony, assault or theft
therein, who . . . enters an occupied structure, such occupied structure not being open to
the public . . . or any person having such intent who breaks an occupied structure.” Iowa
Code § 713.1.
3
  To secure a conviction based on aiding and abetting, the State must introduce
substantial proof to show that the accused “assented to or lent countenance and
approval to” the criminal act. State v. Lott, 255 N.W.2d 105, 107 (Iowa 1977).
Knowledge of the crime is essential, “but neither knowledge nor presence at the scene
of the crime is sufficient to prove aiding and abetting.” Id.; accord Iowa Code § 703.1.
                                      7

and abettor to the theft. See id.; State v. Jackson, 587 N.W.2d 764, 766 (Iowa

1998).

         AFFIRMED.
