                   IN THE COURT OF APPEALS OF IOWA

                                   No. 18-1946
                             Filed January 23, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ERWIN KING,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Stuart P. Werling,

Judge.

      Erwin King appeals his conviction for second-degree theft. REVERSED

AND REMANDED.



      Lauren M. Phelps, Hudson, Florida, for appellant.

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

Attorney General, for appellee.



      Considered by Bower, C.J., and May and Greer, JJ.
                                          2


MAY, Judge.

       Erwin King appeals from his conviction of second-degree theft. King brings

six claims. We address two and remand for new trial.

       We first address King’s challenge to the sufficiency of the evidence. He

contends the district court erred in denying his motion for judgment of acquittal.

We review challenges to the sufficiency of the evidence for corrections of errors at

law. State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012).

       In reviewing challenges to the sufficiency of evidence supporting a
       guilty verdict, courts consider all of the record evidence viewed “in
       the light most favorable to the State, including all reasonable
       inferences that may be fairly drawn from the evidence.” “[W]e will
       uphold a verdict if substantial record evidence supports it.” We will
       consider all the evidence presented, not just the inculpatory
       evidence. Evidence is considered substantial if, when viewed in the
       light most favorable to the State, it can convince a rational jury that
       the defendant is guilty beyond a reasonable doubt. “Inherent in our
       standard of review of jury verdicts in criminal cases is the recognition
       that the jury [is] free to reject certain evidence, and credit other
       evidence.”

Id. (citations omitted).

       “Where, as here, the jury was instructed without objection, the jury

instruction becomes law of the case for the purposes of reviewing the sufficiency

of the evidence.”1 State v. Banes, 910 N.W.2d 634, 639 (Iowa Ct. App. 2018)

(citing State v. Canal, 773 N.W.2d 528, 530 (Iowa 2009) (“[Defendant] did not

object to the instructions given to the jury at trial. Therefore, the jury instructions




1 King did not object to instruction twelve, the theft marshalling instruction. He did
object to a portion of instruction thirteen providing, “knowledge can . . . be inferred
from a defendant’s unexplained possession of an item or items that were recently
stolen.”
                                          3


become the law of the case for purposes of our review of the record for sufficiency

of the evidence.”)). The jury was instructed:

       Under Count 1 the State must prove all of the following elements of
       Theft:
              1. On or about the 11th day of June, 2017, the defendant
       exercised control over stolen property.
              2. The defendant knew such property was stolen[.]
              3. The defendant did not intend to promptly return the stolen
       property to the owner or to deliver it to an appropriate public officer.

       King’s sole complaint is that he was incapable of forming specific intent

because of various mental disabilities. However, he does not clarify which of the

three elements of theft could not be satisfied because of his alleged disability. And

our supreme court has made clear that theft by control “does not require proof of

specific intent.” State v. McVey, 376 N.W.2d 585, 586 (Iowa 1985); see also State

v. Smith, No. 05-2072, 2006 WL 3018132, at *6 (Iowa Ct. App. Oct. 25, 2006),

vacated on other grounds 739 N.W.2d 289 (Iowa 2007). Nor does element two,

the requirement that King knew the property was stolen. See State v. Buchanan,

549 N.W.2d 291, 294 (Iowa 1996) (stating the requirement that a defendant act

“knowingly” does not implicate specific intent).

       We acknowledge element three requires evidence King did not intend to

promptly return the stolen property. But there was evidence to satisfy this element.

King was accused of stealing Cricket Wireless phones. Shortly after the phones

were stolen, King pawned them. From this, a jury could rightly infer King did not

intend to promptly return them. Cf. State v. Walker, 574 N.W.2d 280, 289 (Iowa

1998) (noting intent “may be shown by circumstantial evidence and the reasonable

inferences drawn from that evidence”). The district court correctly denied King’s

motion for judgment of acquittal.
                                          4


       King also alleges the district court failed to obtain a proper waiver of the

right to counsel. The State agrees, as do we.

       A defendant’s waiver of counsel must be voluntary, knowing, and intelligent.

Faretta v. California, 422 U.S. 806, 835 (1975); State v. Stephenson, 608 N.W.2d

778, 782 (Iowa 2000). “The Supreme Court has imposed ‘rigorous restrictions on

the information that must be conveyed to a defendant, and the procedures that

must be observed, before permitting a waiver of the right to counsel at trial.’” State

v. Cooley, 608 N.W.2d 9, 14–15 (Iowa 2000) (citation omitted). “A searching or

formal inquiry is among the procedures required before an accused’s waiver of

counsel may be accepted.” Id. at 15. The “trial court has an absolute duty” to

complete this inquiry on the record. Stephenson, 608 N.W.2d at 782.

       Here, the State properly concedes it cannot produce a record that the

required inquiry was made. See id. (“[T]he burden of proving a valid waiver lies

with the State.”); Cooley, 608 N.W.2d at 14 (requiring the State to offer evidence

of an adequate colloquy). So the State properly concedes King’s conviction must

be reversed. We agree. We reverse and remand for new trial. In light of this

disposition, we need not address King’s other claims.

       REVERSED AND REMANDED.
