                    IN THE COURT OF APPEALS OF IOWA

                                  No. 17-1179
                              Filed August 1, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

MARCO IMANUEL MARTINEZ,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Muscatine County, John D. Telleen,

Judge.



      Marco Martinez appeals his conviction for criminal mischief in the second

degree. AFFIRMED.



      Nathan M. Legue of Legue Law, P.C., Davenport, for appellant.

      Thomas J. Miller, Attorney General, and Kyle P. Hanson, Assistant Attorney

General, for appellee.



      Considered by Vogel, P.J., Tabor, J., and Carr, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2018).
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VOGEL, Presiding Judge.

       Marco Martinez appeals his conviction for criminal mischief in the second

degree. He argues the evidence is insufficient to support his conviction and the

district court abused its discretion when it admitted a photograph as evidence. We

affirm the conviction.

       I.     Background Facts and Proceedings

       On the morning of February 13, 2017, George and Barbara Pinter were

asleep inside their home in a rural subdivision in Montpelier, Iowa. Around 1:30 or

2:00 a.m., Barbara was awakened by a strange noise, but she soon fell back

asleep. When they woke for the day a few hours later, they realized a bullet had

gone through their master bedroom. Later that day, law enforcement officers noted

four bullet holes in the front of the house facing the road. Officers found five shell

casings on that road and an intact bullet in the bedroom, all of which came from

.22 caliber ammunition.     The casings were spread across the ground, which

suggests they were ejected one-by-one from a semi-automatic weapon. The

casings had a large “C” stamped in their base, which is synonymous with CCI

brand ammunition. The bullets caused a little more than $2000 in damage to the

Pinters’ house.

       Later that day, law enforcement officers searched a house several miles

away in Muscatine. Officers performed an initial protective sweep, a consent

search, and, ultimately, a search pursuant to a warrant.        During the consent

search, Officer Andy Fry and Detective John Hesseling, both with the Muscatine

Police Department, found a backpack, a loaded firearm, and some adult diapers

on the floor of a bedroom closet. The backpack contained a partial box of .22
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caliber CCI brand ammunition. The firearm was a semi-automatic .22 caliber

pistol. Based on prior interactions, Officer Fry knew Marco Martinez wore adult

diapers. Detective Hesseling acknowledged he did not know who lived in the

bedroom attached to the closet.

      Martinez was not known to be an owner of the Muscatine house, and Officer

Fry did not believe he lived at the house at the time. Martinez was one of six

persons at the house when officers arrived. During the search, Martinez chose to

remain in the house’s backyard and converse with a detective. Martinez said he

had a birth defect and showed the detective the surgical scars on his abdomen

and the adult diaper he wore because of the defect. The detective told Martinez

they had found ammunition and adult diapers inside the house, at which point

Martinez said he did not want to talk anymore.

      The State charged Martinez with criminal mischief in the second degree.

He proceeded to a jury trial beginning June 5, 2017. During trial, the State offered

a photograph of the closet in the Muscatine house and its contents as evidence.

Martinez objected to the photograph because it did not show the condition of the

closet when officers arrived. While Officer Fry and Detective Hesseling both

testified about the closet, Officer Fry acknowledged another officer had unloaded

the firearm according to protocol before taking the photograph, and Detective

Hesseling acknowledged he was not the first person to search the closet. The

court admitted the photograph.

      The State also presented testimony from Brennen Salmieri. According to

his testimony, Salmieri drove to a motel in Muscatine on the night of February 12

or early February 13 to pick up a friend, Martinez, and another man. He did not
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know Martinez or the other man at the time. Salmieri then drove the four of them

around the area, with his friend in the front-passenger-side seat, Martinez in the

rear-driver-side seat, and the other man in the rear-passenger-side seat. At one

point, he drove on the road past the Pinters’ house, though he did not know the

area or the street names until investigators later showed him a map. He then heard

gunshots from both rear windows, including one gunshot from Martinez directly

behind him. He believed both men had fired guns out of the rear windows, but he

never saw the guns and the men had their hands in their laps when he turned

around to look. He soon returned everyone to the motel. At trial, he acknowledged

he was currently in jail for his actions that morning. He did not have an agreement

with the State to testify, though he was told his testimony would be taken into

consideration in resolving his case.

       The jury found Martinez guilty of criminal mischief in the second degree.

The court sentenced him to a term of incarceration not to exceed five years plus a

suspended fine, restitution, and surcharge. Martinez now appeals his conviction.

       II.    Standard of Review

       We review insufficient-evidence claims for errors at law, and we will affirm

if the evidence, when viewed in the light most favorable to the State, “can convince

a rational jury that the defendant is guilty beyond a reasonable doubt.” State v.

Wickes, 910 N.W.2d 554, 564 (Iowa 2018). We review evidentiary rulings for

abuse of discretion. State v. Tipton, 897 N.W.2d 653, 690 (Iowa 2017).

       III.   Insufficient Evidence

       Martinez argues the evidence is insufficient to convict him of criminal

mischief in the second degree. “Any damage, defacing, alteration, or destruction
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of property is criminal mischief when done intentionally by one who has no right to

so act.” Iowa Code § 716.1 (2017). Criminal mischief is in the second degree if

the cost to replace, repair, or restore the damaged property is greater than $1000

but less than $10,000. Id. § 716.4(2).

       Martinez focuses on the evidence showing he fired the weapon that caused

the damage to the Pinters’ house. Salmieri testified that Martinez fired a weapon

as they drove near the Pinters’ house at the time in question. Martinez was at the

Muscatine house when officers searched it later that day, and he chose to remain

near the house during the search.        Inside the house, officers found in close

proximity (1) ammunition matching the caliber and manufacturer of the ammunition

used at the Pinters’ house, (2) a loaded firearm capable ejecting the casings found

outside the Pinters’ house, and (3) adult diapers of the type officers knew Martinez

wore. Taking this evidence in the light most favorable to the State, a reasonable

jury could accept Salmieri’s testimony, decide Martinez remained at the Muscatine

house because he wanted to know what officers found in the search, and conclude

he fired the weapon found inside the closet of the Muscatine house at the Pinters’

house.

       Martinez notes the absence of physical evidence directly linking him to the

crime, such as fingerprints or gunshot residue. He also notes problems with

Salmieri as a witness, including his testimony that he only heard one gunshot from

Martinez’s side of the car, his uncertainty of the street names around the Pinters’

house, and his hopes the State would consider his testimony when resolving any

charges against him.     The factfinder’s role is to determine the credibility of

witnesses, and the jury was free to accept Salmieri’s testimony in whole or in part.
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See State v. Harrington, 178 N.W.2d 314, 315 (Iowa 1970).                  Also, physical

evidence is not necessarily required for conviction.           See Iowa R. App. P.

6.904(3)(p) (“Direct and circumstantial evidence are equally probative.”).            As

explained above, when taking the evidence as a whole in the light most favorable

to the State, the evidence is sufficient to support Martinez’s conviction for criminal

mischief in the second degree.

       IV.    Admission of a Photograph

       Martinez next argues the district court abused its discretion in admitting a

photograph of the bedroom closet in the Muscatine house over his objection. He

asserts the State failed to lay a proper foundation for the photograph because it

did not reflect the condition of the closet when officers first arrived.

              To obtain admission of a photograph into evidence, (1) the
       picture must be relevant to the controversy, which normally requires
       that the picture be identified in time and place, and (2) the picture
       must fairly represent what it shows. Conventionally these foundation
       elements are shown by the direct testimony of a person who,
       although perhaps not connected with the photography, observed the
       scene and testifies that the picture fairly shows it, or who describes
       the photographic process employed and testifies it produces
       accurate pictures.

State v. Holderness, 293 N.W.2d 226, 230 (Iowa 1980) (citations omitted).

       Officer Fry and Detective Hesseling both testified the photograph fairly and

accurately depicted the condition of the closet during the search. Both

acknowledged officers had searched the closet before the picture was taken; in

particular, Officer Fry testified the searchers had moved the firearm from its initial

location and cleared its round before the picture was taken.               This testimony

provides a proper foundation to admit the photograph.             See id.      Martinez’s

assertions go to the photograph’s evidentiary weight, which is for the factfinder to
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decide. State v. Thornton, 498 N.W.2d 670, 673 (Iowa 1993) (“The jury is free to

believe or disbelieve any testimony as it chooses and to give weight to the

evidence as in its judgment such evidence should receive.”). Therefore, the district

court did not abuse its discretion in admitting the photograph.

       V.     Conclusion

       Substantial evidence supports Martinez’s conviction for criminal mischief in

the second degree, and the district court did not abuse its discretion in admitting a

photograph depicting a bedroom closet during a search. Therefore, we affirm.

       AFFIRMED.
