                IN THE SUPREME COURT OF IOWA
                               No. 07–1246

                        Filed November 14, 2008


STATE OF IOWA,

      Appellee,

vs.

KEVIN SCOTT REX,

      Appellant.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Polk County, Joel D.

Novak, Judge.



      Appellant challenges the sufficiency and weight of the evidence to

sustain his conviction, claims the district court erred in admitting

hearsay evidence, and alleges ineffective assistance of trial counsel.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT

JUDGMENT REVERSED AND CASE REMANDED.



      Susan R. Stockdale, Colo, for appellant.



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

Attorney General, John P. Sarcone, County Attorney, and Justin G.

Allen, Assistant County Attorney, for appellee.
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PER CURIAM.
      Kevin Rex was convicted of second-degree theft after a jury trial in
which the State produced evidence Rex received money from a $7000
check he deposited at a Bank of America branch, knowing the check
would not be paid when presented by the bank. Rex appealed and now
seeks further review of an Iowa Court of Appeals decision affirming his
conviction.
      The court of appeals concluded the evidence was sufficient, and
the defendant’s conviction was not against the weight of the evidence.
The court of appeals also rejected defendant’s challenge to certain
hearsay evidence admitted under the business records exception, Iowa
Rule of Evidence 5.803(6), concluding prejudice was not established as
the evidence was cumulative. Finally, the court of appeals preserved the
defendant’s   ineffective-assistance-of-counsel   claim   for   a   possible
postconviction proceeding.
      A person commits theft when he “[m]akes, utters, draws, delivers,
or gives any check . . . on any bank . . . and obtains property . . . in
exchange for such instrument, if the person knows that such check . . .
will not be paid when presented.” Iowa Code § 714.1(6) (2005). The jury
was instructed on the following elements of theft:

            1. On or about the 15th day of June, 2006, the
      defendant did give to the Bank of America a check in the
      amount of $7000.
           2. The defendant received money in exchange for the
      check.
           3. The defendant knew the check would not be paid
      when presented by the Bank.

      Upon further review, we agree with Rex a photocopy of the check
with the word “counterfeit” written on it was hearsay and that the State
failed to lay a proper foundation for admittance of this evidence under
the business records exception to the hearsay rule.       Specifically, the
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State failed to satisfy its burden to establish the information contained
on the check was “made either ‘by a person with knowledge,’ or by a
reliable, nonhearsay, computer-generated source.” State v. Reynolds, ___
N.W.2d ___, ___ (Iowa 2008) (quoting Iowa R. Evid. 5.803(6)).
      In addition, we further conclude that trial counsel was ineffective
for failing to raise a hearsay objection to, among other things, the bank
investigator’s testimony regarding the contents of the writing on the
check.   This testimony supported the State’s argument that Rex knew
the check would not be honored.          Because the remaining properly
admitted evidence supporting Rex’s knowledge that the check would not
be paid when presented to the bank was not substantial, we conclude
counsel’s failure to object to the investigator’s hearsay testimony was
prejudicial. See id. at ____ (concluding defendant suffered prejudice as a
consequence of trial counsel’s failure to object to hearsay testimony that
was essential to sufficiency-of-the-evidence claim).
      Finally, we reject the defendant’s challenge to the sufficiency of the
evidence because the evidence introduced at trial supports a finding
defendant knew the check would not be paid when presented. See State
v. Dullard, 668 N.W.2d 585, 597 (Iowa 2003) (holding that “[i]n
determining whether retrial is permissible all the evidence admitted
during the trial, including erroneously admitted evidence, must be
considered” to determine whether sufficiency-of-the-evidence test met).
Accordingly, we reverse the defendant’s conviction and remand his case
for a new trial.
      DECISION OF COURT OF APPEALS VACATED; DISTRICT
COURT JUDGMENT REVERSED AND CASE REMANDED.
      All justices concur except Baker, J., who takes no part.
      This opinion shall not be published.
