                     IN THE COURT OF APPEALS OF IOWA

                                     No. 14-1579
                              Filed December 23, 2015


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ROGER BERNELL ENNENGA,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Polk County, Karen A. Romano

(mistrial) and Richard G. Blane II (trial), Judge.



       Roger Ennenga appeals his convictions, following a jury trial, to three

counts of unauthorized use of a credit card and one count of theft in the third

degree. AFFIRMED.



       Mark C. Smith, State Appellate Defender, for appellant.

       Thomas J. Miller, Attorney General, and Kevin Cmelik, Assistant Attorney

General, for appellee.



       Heard by Vogel, P.J., and Vaitheswaran and Bower, JJ.
                                        2


VOGEL, Presiding Judge.

      Roger Ennenga appeals his convictions, following a jury trial, to three

counts of unauthorized use of a credit card and one count of theft in the third

degree. He asserts trial counsel was ineffective for failing to argue that the jury

should determine if the thefts were attributable to a single scheme, plan, or

conspiracy, and thus able to be considered a single act within the meaning of

Iowa Code section 714.3 (2013). Because the State charged Ennenga with three

separate counts, no instruction was necessary and counsel was not ineffective.

Ennenga further argues he should be granted a new sentencing hearing, as the

district court considered improper factors when imposing the maximum sentence;

the record, though, demonstrates the court only considered proper factors when

imposing its sentence.    Additionally, Ennenga asserts the court should have

given a spoliation instruction to the jury, as he claims a Brady violation occurred

when the State did not secure all of the surveillance video.         However, we

conclude no Brady violation occurred where Ennenga failed to establish the State

intentionally or in bad faith destroyed exculpatory material.       Ennenga also

contends the court erred when admitting various testimony over his hearsay

objections, as well as when it considered evidence outside the record when

denying his pro se motions for new trial. With regard to this latter argument,

Ennenga failed to preserve error; furthermore, the district court properly admitted

the statements that Ennenga complains are hearsay because they were entered

to show the responsive conduct of the witnesses, in addition to being cumulative.

For these reasons, we affirm Ennenga’s convictions and sentence.
                                        3


I. Factual and Procedural Background

      Evidence at trial established the following facts.     On March 5, 2014,

Norma Van Houten was bowling with her senior league at Plaza Lanes, a

bowling alley in Des Moines. A friend noticed an unfamiliar man standing behind

Norma while they were bowling.      After the game ended, Norma went to the

restroom, leaving her purse outside the door, unattended. When she returned,

her wallet containing approximately $700 in cash was missing, along with her

identification and a credit card. She and her husband, Charles Van Houten,

contacted the police.

      Plaza Lanes employee Lindsay McMillen looked through surveillance

videos, which depicted a man in a blue and red jacket enter the bowling alley and

remain for ten minutes, without bowling or speaking to anyone. While there he

went to the restroom and the locker bays before getting into a car and driving

away. The place where the wallet was stolen was not on camera. Portions of

the video showing Ennenga’s face and vehicle were offered into evidence.

However, the authorities did not request all of the day’s video footage, and it was

automatically erased from the surveillance equipment approximately two months

later, as programmed.

      When the Van Houtens and their daughter, Valerie Mason, called to

cancel the credit card, the company informed them where the card had been

used. Video surveillance showed a man, later identified as Ennenga, using the

credit card to purchase various items at a Walgreens, a microwave at Habitat for

Humanity Restore, and a carwash, for a total of three separate transactions,
                                           4


made within seventy-five minutes of each other. Credit card receipts confirmed it

was Norma’s credit card. The credit card, cash, and wallet were never located.

       The State charged Ennenga on April 9, 2014, with three counts of

unauthorized use of a credit card, each an aggravated misdemeanor, in violation

of Iowa Code section 715A.6(2), and one count of theft in the third degree, also

an aggravated misdemeanor, in violation of Iowa Code section 714.1(1).1 Trial

commenced on July 7, 2014, but a mistrial was declared the next day.2 It began

again on August 4, 2014, and the jury found Ennenga guilty on all four counts on

August 7.

       Ennenga filed pro se motions for new trial on August 26, 2014, as later

amended.     Following a hearing, the district court denied both motions.          The

sentencing hearing was held on September 18, 2014, and the court imposed a

sentence not to exceed two years on each conviction, with the sentences to run

consecutively. Ennenga appeals.

II. Standard of Review

       We review constitutional issues, including ineffective-assistance claims,

de novo. State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006). Our review of

evidentiary claims is for an abuse of discretion, though hearsay issues are

reviewed for correction of errors at law. State v. Richmond, 590 N.W.2d 33, 34




1
  While Ennenga was charged under section 714.2(3), the jury instructions were more
specific, and the verdict form asked the jury to decide what amount—over $500 or under
$1000—had been stolen.
2
  The basis of the mistrial was a Brady violation in which a witness gave a
nonresponsive answer to a direct question by the prosecution. The district court, in its
order, found the State was not at fault, and trial began anew.
                                            5


(Iowa 1999). With regard to sentencing decisions, our review is for an abuse of

discretion. State v. Evans, 672 N.W.2d 328, 331 (Iowa 2003).

III. Ineffective Assistance of Counsel

       Ennenga first asserts trial counsel was ineffective for failing to request that

the jury make a finding as to whether the three credit card offenses were part of a

“single scheme, plan, or conspiracy,” and thus a single act. He argues the value

of the items obtained with the credit cards could be aggregated, as set forth in

Iowa Code section 714.3, and therefore, there should have been an interrogatory

asking the jury whether the credit card offenses should be aggregated.3

       A defendant may raise an ineffective-assistance claim on direct appeal if

the record is adequate to address the claim. Straw, 709 N.W.2d at 133. We may

either decide the record is adequate and issue a ruling on the merits, or we may

choose to preserve the claim for postconviction proceedings. Id. To succeed on

this claim, the defendant must show, first, that counsel breached an essential

duty and, second, that he was prejudiced by counsel’s failure. Id.

       Iowa Code section 714.3 states:

       If money or property is stolen from the same person or location by
       two or more acts, or from different persons by two or more acts

3
  In his pro se brief, Ennenga contends counsel was also ineffective for failing to object
to the prosecutor’s closing argument, in which the State, according to Ennenga,
“introduced perjured testimony.” The statement to which Ennenga objects is as follows:
        [W]as it the defendant who did it? You heard the evidence that people
        who saw the video everything the defendant did in the bowling alley that
        day that was captured on the Plaza Lanes video, they saw him enter the
        bowling alley, walk past the restroom and then stand there watching the
        senior bowling league for an extended period.
Ennenga’s brief does not elucidate why or how these statements constitute perjury,
other than a vague assertion it contradicts the testimony of two witnesses. We conclude
no essential duty was breached when counsel did not object, and Ennenga’s claim is
without merit. See State v. Greene, 592 N.W.2d 24, 29 (Iowa 1999) (holding if counsel
does not breach an essential duty he cannot be considered ineffective).
                                          6


       which occur in approximately the same location or time period, or
       from different locations by two or more acts within a thirty-day
       period, so that the thefts are attributable to a single scheme, plan,
       or conspiracy, these acts may be considered a single theft and the
       value may be the total value of all the property stolen.

(Emphasis added.)

       The language of this statute is explicitly permissive and governs the

manner in which the State may charge a defendant if the series of thefts is

attributable to the same scheme or plan. See State v. Jacobs, 607 N.W.2d 679,

689 (Iowa 2000) (noting the State is not required to aggregate several counts of

thefts into one charge). This section does not, however, require a finding from

the jury regarding whether multiple thefts are part of a common scheme, as long

as the State declines to aggregate the thefts when charged into a single count.

See Iowa Code § 714.3; see also State v. Chrisman, 514 N.W.2d 57, 58–59

(Iowa 1994) (stating the State is not required to charge different acts of theft as a

single count, “no matter how closely they may be connected”; furthermore,

because the thefts were not aggregated, there was no jury instruction regarding

whether the thefts were attributable to the same scheme).

       To dispute the wording and judicial interpretation of section 714.3,

Ennenga relies on State v. Amsden, 300 N.W.2d 882, 886 (Iowa 1981), which

held the district court erred when it failed to instruct the jury to make a finding as

to whether or not the crimes were attributable to the same scheme. However,

the defendant in Amsden was charged with one count of theft, that is, his

separate crimes were aggregated in the charging instrument; therefore, in

making the finding there should have been instructions based on Iowa Code

section 714.3, the Amsden court was relying on the fact the defendant’s separate
                                           7


thefts were charged as one crime. 300 N.W.2d at 883, 885–86. Consequently,

Amsden is factually distinguishable from the case here, as Ennenga was charged

with three separate credit card offenses and the jury made a separate finding as

to each offense.

       Given the foregoing conclusions, Ennenga’s claim would not have been

successful at trial. Because counsel is not ineffective for failing to pursue a

meritless issue, Ennenga’s ineffective-assistance claim fails.     See State v.

Greene, 592 N.W.2d 24, 29 (Iowa 1999).

IV. Brady Violation

       Ennenga also argues that his due process rights were violated when some

of the video from the bowling alley was later automatically erased. He contends

the State’s failure to obtain all of the video footage from the bowling alley—some

of which may have been favorable to his defense—resulted in a Brady violation.

       To establish a due process violation based upon destruction of evidence,

the defendant must show: (1) a proper defense request for the evidence; (2) that

the evidence was material; and (3) that the evidence would have been

significantly favorable to the defendant. State v. Hulbert, 481 N.W.2d 329, 334

(Iowa 1992). This test—known at the Brady test—may be applied when there

has either been an intentional destruction of exculpatory evidence or a bad faith

destruction of potentially exculpatory evidence. Id. If there has been a Brady

violation, the remedy is a spoliation jury instruction. Id.
                                         8


       Here, Ennenga cannot establish the State intentionally or in bad faith

destroyed the video surveillance.4 Plaza Lanes employee McMillen testified she

gave the authorities the portion of the day’s video that would help identify a yet-

unknown, unfamiliar man in the bowling alley the night Van Houten’s wallet was

stolen. Ennenga does not dispute that he received the same evidence that was

in the State’s possession. The portion not turned over to the State, and hence

Ennenga, was destroyed automatically by the recording system at Plaza Lanes.

Moreover, there was no evidence that any portion of the video would have

assisted in Ennenga’s defense. Consequently, Ennenga has failed to establish a

Brady violation.   See State v. Hartsfield, 681 N.W.2d 626, 632 (Iowa 2004)

(“Ordinarily evidence destroyed under a neutral record destruction policy is not

considered intentionally destroyed.”).

V. Spoliation Instruction

       In connection with the alleged Brady violation, Ennenga contends the

district court erred when it declined to give the jury a spoliation instruction. He

asserts that, because the State failed to secure all of the Plaza Lanes video, the


4
 McMillen testified the video cameras mainly focused on areas such as the front desk
where the two cash registers were, the bathrooms, the service bar, and the entrances.
As to Ennenga appearing on the video, McMillen testified:
       We were able to trace back and find the vehicle that pulls into—it wasn’t a
       parking spot—just up next to the building. And you see the individual get
       out of there and enter in the south entrance and walk down that south
       hallway. And then he proceeds to walk down the bowling concourse,
       pass one bathroom, and go into the bathroom at the north end of the
       bowling concourse. And then there’s no cameras in the bathroom. You
       see him then a short time later on his way back out towards the south
       entrance. And then you can see him in the hallway where he passes one
       of our employees that said hello or—I’m not sure what’s said, but hi. And
       then you see the individual duck into the locker bays—they’ve got all the
       lockers there for all the bowlers—and then he exits the building.
She also noted the man was in the building for ten minutes.
                                          9


court should have given a spoliation instruction, that is, a jury instruction that this

missing evidence would have been adverse to the State.

       The remedy for a Brady violation when the evidence at issue has been

destroyed is to submit a spoliation instruction. Hulbert, 481 N.W.2d at 334. The

Brady spoliation rule does not apply, however, when the destruction of evidence

was merely negligent or unintentional. Id.

       As established in the above analysis, Ennenga has failed to show that the

State possessed the video, let alone intentionally destroyed it. His only argument

rests on the State’s failure to secure all of the video from the bowling alley.

However, Ennenga can point to nothing that would have been exculpatory, nor

any intentional destruction of evidence by the State.          Therefore, no Brady

violation occurred, and the district court did not err when it declined to give a

spoliation instruction to the jury. See Hartsfield, 681 N.W.2d at 632 (holding no

spoliation instruction needed to be given, as the defendant failed to establish the

State intentionally destroyed video surveillance).

VI. Admission of Evidence

       Ennenga also argues the district court erred when overruling his hearsay

objections. Specifically, he takes issue with portions of the testimony of Mason,

Norma Van Houten, and Charles Van Houten. He asserts the court improperly

concluded the testimony was offered to show responsive conduct, as the

witnesses testified to the content of their conversations, which amounted to

hearsay. Additionally, in his pro se brief, Ennenga argues the court should not

have admitted Exhibit 9—the video from the Habitat for Humanity surveillance,
                                        10


due to the lack of foundation; furthermore, he claims his due process rights were

violated when the court allowed into evidence a tainted identification.

   A. Hearsay

       A statement is not hearsay when it is admitted to show its effect on the

hearer and to explain that person’s conduct; thus, it does not constitute hearsay

because it is not admitted for the truth of the matter asserted. State v. Mann, 512

N.W.2d 528, 535 (Iowa 1994).        Apart from the nature of the statement, the

responsive conduct must be relevant to some aspect of the case.           State v.

Mitchell, 450 N.W.2d 828, 832 (Iowa 1990).

       With regard to the testimony of Charles Van Houten, he stated he called

the credit card company, which informed him the card had been used to

purchase items at various establishments. Charles then went to the stores and

inquired as to whether they had information regarding the stolen credit card. This

testimony established responsive conduct on the part of Charles—the credit card

company informed him of where the card had been used, prompting him to

gather information as to who may have used the credit card. These statements

were entered to show responsive conduct, and therefore, they are not hearsay.

See id.

       As to Mason’s testimony that her mother had informed her that the wallet

had been stolen, this statement was entered to show why Mason went to the

bowling alley to be with her mother. This is also responsive conduct on the part

of Mason—based on Norma’s statement—and is relevant to show how Mason

then watched the video footage from the evening. Furthermore, it is cumulative

of other evidence, as the record demonstrates numerous instances in which
                                        11

witnesses testified that the credit card from the stolen wallet had been used. See

State v. Elliot, 806 N.W.2d 660, 669 (Iowa 2011) (noting that, even if a hearsay

statement is improperly admitted, if it is cumulative of other evidence it is not

prejudicial). Consequently, no prejudicial error was committed when the district

court allowed Mason’s statement. See Mitchell, 450 N.W.2d at 832.

      The testimony of Norma—in which she stated her friend called attention to

a man standing behind her, wondering if it was her husband—was also admitted

to show responsive conduct.      The friend’s question established why Norma

turned around, as well as explains Norma’s observation that the man standing

behind them was not in fact her husband; consequently, this testimony does not

constitute hearsay. See id. Moreover, Ennenga failed to establish any prejudice

with regard to this testimony. Consequently, the court properly admitted these

statements, and Ennenga’s evidentiary claims are without merit.

   B. Exhibit 9

      With regard to Ennenga’s Exhibit 9 (a video) foundation argument, the

State responds that, because Ennenga failed to object at trial, error was not

preserved. We agree. For error to be preserved, the party must assert his

objection in a timely manner, and the court must then rule on the issue.

Lamasters v. State, 821 N.W.2d 856, 864 (Iowa 2012). “If the court’s ruling

indicates that the court considered the issue and necessarily ruled on it, even if

the court’s reasoning is ‘incomplete or sparse,’ the issue has been preserved.”

Id. (quoting Meier v. Senecaut, 641 N.W.2d 532, 540 (Iowa 2002)). No such

objection to Exhibit 9 appears in the record, nor is this framed as an ineffective-
                                          12


assistance argument. Consequently, error was not preserved, and we decline to

address the merits of this claim. See id.

   C. Identification

       The State asserts that, because Ennenga’s pro se brief lacks argument

supporting his claim of error, this claim is waived. The section of Ennenga’s brief

dealing with the identification argument consists of a quotation of testimony from

the first trial held on July 7, 2014. There is no supporting argument, citation to

authority, or explanation regarding the basis of Ennenga’s due process claim.

Consequently, we agree with the State that the claim is waived, and we decline

to address the merits.     See Iowa R. App. P. 6.903(2)(g)(3) (“Failure to cite

authority in support of an issue may be deemed waiver of that issue.”); see also

State v. Seering, 701 N.W.2d 655, 661 (Iowa 2005) (“In the absence of an

argument on these allegations [on appeal], we deem them waived.”).

VII. Motions for New Trial

       Ennenga further asserts the district court improperly considered evidence

outside the record when ruling on his two pro se motions for new trial. The State

again responds error was not preserved, as Ennenga made no specific objection

to the facts the district court cited; additionally, in his brief, he does not refer to

what precise factual errors to which the order referred.

       The State is correct in its assertion that error was not preserved. The pro

se motions for new trial were filed on August 26, 2014, as later amended, and the

district court issued a ruling denying the motions on September 5, 2014. At the

sentencing hearing, Ennenga—arguing these motions pro se—stated on the

record that the court erred in several respects. Ennenga asserted the evidence
                                           13


failed to establish he had committed any of the offenses; that Lindsey McMillen, a

witness, no longer worked at Plaza Lanes; and that he was not notified of one of

the witnesses. However, at no point did he assert the district court, in its ruling,

considered facts outside the record. Rather, this is an argument asserted solely

on appeal. Consequently, error was not preserved, and we decline to address

the merits of this claim.5 See Lamasters, 821 N.W.2d at 864.

VIII. Sentencing

       Ennenga’s final claim argues the district court relied on improper factors

when imposing the maximum sentence of four consecutive, two year sentences.

He contends the court’s statements regarding Ennenga’s conduct during trial, the

amount of time Ennenga would serve before he could be paroled, as well as

alleged unprosecuted offenses, amounted to a defect in the sentencing

procedure such that a new sentencing hearing is required.

       With regard to the criteria for sentencing, our court has noted:

       The trial court and we on review should weigh and consider all
       pertinent matters in determining proper sentence, including the
       nature of the offense, the attending circumstances, defendant’s
       age, character and propensities and chances of his reform. The
       courts owe a duty to the public as much as to the defendant in
       determining a proper sentence. The punishment should fit both the
       crime and the individual.

State v. Bragg, 388 N.W.2d 187, 191 (Iowa Ct. App. 1986). In order to assess

whether the trial court properly exercised its discretion in light of the relevant


5
  Were we to address the merits, however, we note that any reference to facts not
contained in the record before the district court is improper. See Richardson v.
Richardson, 79 N.W.2d 769, 771 (Iowa 1956) (“We are required, as was the trial court,
to consider only evidence legally made part of the Record.”). Thus, a statement referring
to the court’s personal knowledge of a fact, which is not otherwise contained in the
record, is improper. In this particular instance, though, we find no indication the lower
court committed an error that would in any way prejudice the defendant.
                                       14


factors delineated above, the court must state its reasons for the sentence on the

record. Id.

      During the sentencing hearing, the district court engaged in the following

colloquy when explaining why it imposed the maximum sentence:

              As far as seeing whether or not this is the bad Roger or the
      good Roger, first of all, the county attorney has recited a number of
      convictions. They go back to the 1980s.
              I also heard evidence concerning the tape-recorded
      conversations between him and Ms. Thompson. There were a
      number of those played for the jury at the time. It has to be
      assumed by the Court that Mr. Ennenga was not under the
      influence of K2 while he’s in jail. And his comments and some of
      the statements he made in there still show his criminal mind.
              The argument that he is rehabilitatable is rebutted by the
      recitation by the county attorney of the criminal convictions and the
      imprisonments that Mr. Ennenga has had since the 1980s.
              The Court finds that the nature of the crimes committed by
      you, Mr. Ennenga, are despicable. You select your victims, and
      you prey on the elderly in our community. You show no remorse.
      You treat this as a game as well as you treat this court process as a
      game. You are a leech on our community.
              Based upon your past criminal record, you show no
      attributes for rehabilitation. You are simply a person that should be
      warehoused in our Department of Corrections to keep you away
      from society and out of our community for as long as possible so
      that you cannot perpetrate your crimes in the future. I will state for
      the record I am not considering the 2003 forgery conviction which
      was reversed on appeal.
              The Court, as indicated, finds that the sentences should run
      consecutively based upon the defendant’s criminal history, the
      nature of the offenses committed here, and the defendant’s
      propensity for further criminal acts based upon his prior criminal
      record.

      “Sentencing decisions are cloaked with a strong presumption in their

favor. 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.” State v.

Grandberry, 619 N.W.2d 399, 401 (Iowa 2000). Proper considerations include
                                        15


what sentence “will provide maximum opportunity for the rehabilitation of the

defendant, and for the protection of the community from further offenses by the

defendant and others.”     Iowa Code § 901.5.      The court is not permitted to

consider unproven offenses as a sentencing factor. State v. Sailer, 587 N.W.2d

756, 762 (Iowa 1998).

      Here, the court considered the following factors: (1) Ennenga’s chances

for rehabilitation, at which time the court remarked upon his criminal history, as

well as the possibility of substance abuse; (2) the nature and severity of the

offenses; (3) the safety and protection of the community; and (4) Ennenga’s lack

of remorse, demonstrated in part, by his behavior at trial. These considerations

are proper and do not amount to a defect in the sentencing procedure. See Iowa

Code § 901.5; Sailer, 587 N.W.2d at 762 (reviewing the proper sentencing

factors). As the State noted, the district court “perceived a manipulative streak in

the defendant that mocked the process and . . . called attention to it at

sentencing.”    However, the court is permitted to engage in “unfortunate

phraseology” without imposing an illegal sentence. See State v. Nichols, 247

N.W.2d 249, 254–55 (Iowa 1976).         The record does not reflect the court’s

consideration of improper factors.

      Furthermore, we do not agree with Ennenga’s contention the court

considered when he would be paroled as a factor in its sentencing decision.

After the sentence had already been imposed, the court remarked: “I’m

somewhat familiar with the fact that I receive notices whenever inmates are

released, and I compare the date of the release to the sentencing. It always
                                           16


amazes me how soon defendants get out compared to when they are supposed

to, by my calculations, to be released.”

       At that point in the proceedings, the parties were discussing the no-

contact order. Thus, the court did not consider as a factor when Ennenga might

be granted parole when determining his sentence.       See generally State v.

Remmers, 259 N.W.2d 779, 785 (Iowa 1977) (holding that the contemplation of

the actual length of time the defendant might serve is an impermissible

consideration).    The unproven-offenses argument is also without merit—

Ennenga’s conduct during trial did not amount to unproven criminal conduct but,

rather, was evidence of an uncooperative character trait, which spoke to

Ennenga’s ability to be rehabilitated. Consequently, the record establishes the

court did not consider impermissible factors, and no defect in the sentencing

procedure occurred such that a new sentencing hearing is required. See Sailer,

587 N.W.2d at 762.

       For these reasons, we affirm Ennenga’s convictions and sentence.

       AFFIRMED.
