                    IN THE COURT OF APPEALS OF IOWA

                                   No. 18-1197
                                Filed May 1, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

MICHAEL L. CROFT, JR.,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Dallas County, Terry R. Rickers,

Judge.



      Michael Croft Jr. appeals from his conviction for theft in the fourth degree.

AFFIRMED.



      Mark C. Smith, State Appellate Defender, (until his withdrawal) and Stephan

J. Japuntich, Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Sharon K. Hall, Assistant Attorney

General, for appellee.



      Considered by Doyle, P.J., Mullins, J., and Mahan, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).
                                            2


MAHAN, Senior Judge.

       Michael Croft Jr. appeals from his conviction for theft in the fourth degree,

in violation of Iowa Code sections 714.1(1) and 714.2(4) (2018), contending there

is insufficient evidence to support the jury’s finding on the element of identity.1

Upon our review, we affirm.

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

following.   On February 7, 2018, two Scheels loss-prevention officers were

monitoring the main aisle of Scheels’ first floor in West Des Moines. They spotted

Croft, whom they recognized from photographs in the store’s office as an individual

on “be on the lookout” (BOLO) status.2 The officers had a “clear view” of Croft’s

face as he walked “directly past” them, and they followed him until he exited the

store carrying Scheels merchandise without paying. 3                Upon the officers’

subsequent review of surveillance footage, they observed Croft picking up the

merchandise before they had encountered him in the store. Both officers testified

there was “no question” the individual they observed in Scheels on that date was

Croft, and the officers identified Croft in person for the jury at trial. See State v.

Williams, 315 N.W.2d 45, 58 (Iowa 1982) (noting the credibility of witnesses and

weight to be given their testimony is in the sole province of jury).

       Although the officers’ testimony presents substantial evidence to support a

finding of guilt, the jury also heard testimony from a third Scheels loss-prevention


1
  Croft raises an alternative claim of ineffective assistance of counsel, which we need not
address because counsel unsuccessfully moved for judgment of acquittal on the element
of identity.
2
  BOLO is a status given to subjects who were believed to have stolen from Scheels
previously.
3
  Pursuant to Scheels’ store policy, the officers were not allowed to approach Croft unless
there was an open case against him.
                                           3


officer, who reviewed the surveillance video and recognized Croft from several

prior encounters—one in December 2016 during which Croft attempted to exit the

store carrying Scheels merchandise without paying, and another in December

2017 when Croft failed in an attempt to return items he had not purchased. The

jury also heard from a Target loss-prevention officer, who stopped Croft in the

midst of a theft from a West Des Moines Target store in May 2017.

          On appeal, Croft acknowledges his identity in Scheels’ BOLO photographs

from December 2017.        But he claims, “The depictions do not prove that the

individual shown in the December 2017 photographs is the same individual shown

in the February 7, 2018 photographs [taken from the surveillance video].” Croft’s

primary contention is that his distinctive neck tattoo is not visible in the February 7

photographs. But Croft overlooks the fact that his attire on February 7 (hooded

sweatshirt, coat, and vest) concealed his neck. Even so, viewing the evidence in

the light most favorable to the State, it appears part of Croft’s neck tattoo is visible

in Exhibit 3.

          “[T]he prosecution does not have ‘an affirmative duty to rule out every

hypothesis except that of guilt beyond a reasonable doubt.’” State v. Bentley, 757

N.W.2d 257, 262 (Iowa 1999) (quoting Jackson v. Virginia, 443 U.S. 307, 326

(1979)). Considering the evidence in the record, including reasonable inferences

that may be fairly drawn from it, we conclude substantial evidence supports the

jury’s verdict in this case. See State v. Albright, ___ N.W.2d ___, ___, 2019 WL

1302384, at *3 (Iowa 2019) (setting forth standard of review). Accordingly, we

affirm.

          AFFIRMED.
