                    IN THE COURT OF APPEALS OF IOWA

                                  No. 17-1147
                              Filed August 1, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

RODNEY L. HANNEMAN,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Marlita A. Greve,

Judge.



      Rodney Hanneman appeals from his conviction, sentence, and judgment

for theft in the second degree following jury trial. AFFIRMED.




      Mark C. Smith, State Appellate Defender, and Martha J. Lucey, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Martha E. Trout, Assistant Attorney

General, for appellee.



      Considered by Danilson, C.J., and Vogel and Tabor, JJ.
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DANILSON, Chief Judge.

       Rodney Hanneman appeals from a conviction, sentence, and judgment for

theft in the second degree following jury trial. On appeal, Hanneman asserts the

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

evidence was insufficient to establish he actually took the motorcycle. Because

we find substantial evidence supports the jury verdict, we affirm.

I. Background Facts and Proceedings.

       On February 17, 2017, Cody Pratt reported his 2008 Yamaha WR250X

motorcycle stolen. Pratt last saw the motorcycle on the porch behind his house on

February 14. Later in the evening of February 17, Davenport police observed a

motorcycle being driven without license plates or turn signals. A traffic stop was

initiated, and Rodney Hanneman was identified as the driver of the motorcycle.

Hanneman could not provide a driver’s license or valid license, registration, or

proof of insurance for the motorcycle.           Twelve of the seventeen vehicle

identification numbers (VIN) for the motorcycle were also scratched off. The

motorcycle was impounded until the owner could provide proof of ownership and

insurance.

       Several days later, police discovered the remaining five VIN for the

impounded motorcycle matched the last five VIN of the motorcycle Pratt reported

stolen. After meeting police at the vehicle impound, Pratt identified the impounded

motorcycle as his. The motorcycle had been painted; the ignition key had been

changed to a switch; and someone had removed from the motorcycle a bracket

holding the rear turn signals and license plates, the foot pegs, the front turn signals,

and identifying stickers.
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      On March 20, the State charged Hanneman with theft in the second degree,

in violation of Iowa Code section 714.2(2) (2017). On May 17, the State was

granted leave to amend the trial information to specify “theft in the second degree

by taking property belonging to Cody Pratt” and include a habitual-offender

sentencing enhancement.

      At trial, Pratt testified about the disappearance of his motorcycle. He stated

he did not know Hanneman and did not give Hanneman permission to possess his

motorcycle.

      Hanneman’s girlfriend, Kira Pauly, testified for the defense that Hanneman

obtained a Yamaha motorcycle before they took a February 4 trip. Pauly provided

photos of “Rodney’s bike” dated February 7. Pauly stated Hanneman was driving

that same motorcycle when he was arrested on February 17.               On cross-

examination, Pauly acknowledged Hanneman did not have a title for the

motorcycle and she did not go to police to inform them the motorcycle was

Hanneman’s.

      Hanneman filed a motion for judgment of acquittal alleging the State had

not proved theft in the second degree beyond a reasonable doubt. The district

court overruled the motion. The jury found Hanneman guilty, and the district court

sentenced him to fifteen years in prison and ordered him to pay restitution.

      On appeal, Hanneman asserts the State presented insufficient evidence to

prove he committed theft by taking in violation of Iowa Code section 714.1(1).

Hanneman claims he preserved error through his motion for judgment of acquittal.

      The State maintains Hanneman did not preserve error on the grounds now

raised.   The State argues Hanneman conceded at trial there was sufficient
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evidence he possessed Pratt’s motorcycle and he cannot now claim that

insufficient evidence supported theft by taking.

II. Error Preservation and Standard of Review.

       “The doctrine of error preservation has two components—a substantive

component and a timeliness component.” State v. Krogmann, 804 N.W.2d 518,

523 (Iowa 2011). The requirements for error preservation are based on fairness.

State v. Ambrose, 861 N.W.2d 550, 555 (Iowa 2015).

       “A motion for judgment of acquittal is a means for challenging the sufficiency

of the evidence to sustain a conviction . . . .” State v. Allen, 304 N.W.2d 203, 206

(Iowa 1981). To preserve an issue for appellate review, a motion for judgment of

acquittal must make direct reference to claimed evidentiary insufficiency. See

State v. Schories, 827 N.W.2d 659, 664 (Iowa 2013). “It is a fundamental doctrine

of appellate review that issues must ordinarily be both raised and decided by the

district court before we will decide them on appeal.” Lamasters v. State, 821

N.W.2d 856, 862 (Iowa 2012) (citation omitted). “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. at 864.

       In submitting the motion for judgment of acquittal, Hanneman’s counsel

stated:

               [T]he basis for [judgment of acquittal] is that the State has not
       met its burden such that a reasonable juror could find my client guilty
       of theft in the second degree per the taking theory, which is to say
       that while the State, I think, has been able to prove up possession
       and control, it has not proved that there is a specific intent by my
       client to deprive Cody, at least not beyond a reasonable doubt, as to
       that piece of property.
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       While the grounds for the motion for judgment of acquittal could have been

presented differently, there is no dispute the sufficiency of the evidence supporting

theft in the second degree and Hanneman’s specific intent to effectuate a taking

were presented to the court. See State v. Ness, 907 N.W.2d 484, 488 (Iowa 2018)

(finding no unfairness to the State on appeal when an objection by counsel could

have been presented more clearly but there was no dispute as to what issue was

before the district court).

       In addressing the motion for judgment of acquittal, the district court stated,

“[C]learly a reasonable juror could believe that this was Mr. Pratt’s bike and that

the modifications were made by someone with the intent to permanently deprive

Mr. Pratt of his property, and the bike was found in the possession of Mr.

Hanneman.” We find this record sufficient to show the district court considered

and ruled on the sufficiency of evidence supporting Hanneman’s taking of the

motorcycle, and thus, the issue is properly before us.1 See Lamasters, 821 N.W.2d

at 865.

       “We review challenges to the sufficiency of evidence for correction of errors

at law.” State v. Tipton, 897 N.W.2d 653, 692 (Iowa 2017). A verdict of guilty will

be upheld if supported by substantial evidence. Id. Substantial evidence exists

when a rational trier of fact would be convinced the defendant is guilty beyond a

reasonable doubt. Id. To determine whether a finding of guilt is supported, all

relevant evidence is viewed in the light most favorable to the State. Id.




1
 Because we find Hanneman’s claim of insufficient evidence properly preserved, we do
not address his alternative claim that counsel was ineffective by failing to preserve error.
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III. Discussion.

       Theft by taking is defined by statute, which prohibits “[t]ak[ing] possession

or control of the property of another, or property in the possession of another, with

the intent to deprive the other thereof.” Iowa Code § 714.1(1); State v. Nall, 894

N.W.2d 514, 517 (Iowa 2017). The theft-by-taking statute is construed to apply

only to a taking without consent or authority. Nall, 894 N.W.2d at 520.

               The elements of theft by taking . . . are: (1) the defendant took
       possession or control of property; (2) the defendant did so with the
       intent to deprive another of that property; and (3) the property
       belonged to, or was in the possession of, another at the time of the
       taking.

Id. at 518.

       Hanneman does not dispute the presence of the third element here.

Hanneman claims there is insufficient evidence to show he intended to take or

actually took the motorcycle off Pratt’s porch. Hanneman argues section 714.1(1)

requires some showing he was involved in physically taking the motorcycle from

Pratt’s porch. This is an incorrect interpretation of the theft-by-taking statute.

       To show a theft by taking, the State must establish Hanneman exercised

possession or control of the motorcycle beyond his authority.           See State v.

Donaldson, 663 N.W.2d 882, 885 (Iowa 2003). The theft-by-taking statute is

construed narrowly to apply to a person’s acquisition of property without the

consent or authority of another. See Nall, 894 N.W.2d at 524. “[P]ossession or

control begins and a theft is completed, when the actor secures dominion over the

object or uses it in a manner beyond his authority.” Donaldson, 663 N.W.2d at

886; accord Nall, 894 N.W.2d at 520.
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      The State is not required to show direct evidence Hanneman physically

removed the motorcycle from Pratt’s backyard. See State v. Hershberger, 534

N.W.2d 464, 466 (Iowa Ct. App. 1995); see also State v. Dighton, No. 12-0201,

2012 WL 4513995, at *2 (Iowa Ct. App. Oct. 3, 2012) (“[E]vidence of the act of

physically removing the vehicle from the property of the rightful owner is not

necessary under Iowa Code section 714.1(1).”). The State’s burden is to show a

person acquired property and exercised dominion or control over the property

without the consent or authority of another. Hershberger, 534 N.W.2d at 466

(finding possession and control of a stolen motorcycle are sufficient evidence to

support a finding there was a taking); see also Nall, 894 N.W.2d at 524.

“Circumstantial evidence is equally probative as direct evidence for the State to

use to prove a defendant guilty beyond a reasonable doubt.” State v. Brubaker,

805 N.W.2d 164, 172 (Iowa 2011).

      The State presented substantial circumstantial evidence Hanneman

acquired the motorcycle without Pratt’s consent and used the motorcycle in a

manner beyond his authority. Hanneman was found in possession and control of

the motorcycle when stopped by police for driving without a license plate.

Hanneman could produce no license or registration. There was sufficient evidence

Pratt owned the motorcycle and he reported it stolen on February 17. Pratt testified

he did not know Hanneman.        Pratt also testified he did not give Hanneman

permission to drive, possess, or control the motorcycle. Viewing the evidence in

the light most favorable to the State, a reasonable juror could find Hanneman

acquired possession of the motorcycle without Pratt’s consent and was exercising

possession or control beyond his authority.
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       The State also must show by substantial evidence Hanneman took

possession of the motorcycle with the specific intent to permanently deprive

another of the motorcycle. See Iowa Code § 714.1(1); State v. Schminkey, 597

N.W.2d 785, 789 (Iowa 1999) (“[The] intent to permanently deprive the owner of

[the] property is an essential element of theft under section 714.1(1).”). Because

proof of intent requires a determination of what an individual was thinking when an

act was done, it is rarely capable of being established with direct evidence.

Schminkey, 597 N.W.2d at 789. Facts and circumstances, as well as reasonable

inferences drawn from evidence presented at trial may be relied upon to determine

an individual’s intent. See State v. Huser, 894 N.W.2d 472, 491 (Iowa 2017) (“We

have stated that a fact finder may infer a defendant’s participation from all of the

surrounding circumstances of the illegal activity.”).

        “[A] defendant’s possession of recently stolen property creates an

inference that the defendant stole it.” State v. Morris, 677 N.W.2d 787, 789 (Iowa

2004) (Larson, J., dissenting). The motorcycle had been out of Pratt’s possession

for just a few days. See State v. Jones, 289 N.W.2d 597, 600 (Iowa 1980) (“[An]

underlying rationale of the inference is that due to the time element involved the

possessor must have had either some involvement in or knowledge of the theft.”).

The evidence presented at trial showed Pratt’s motorcycle was repainted

amateurishly; was missing identifying features, including a sticker on the exhaust

and the combined turn signal–license plate bracket; and the VIN was defaced.

These alterations are indicative of an attempt to conceal the character of the

motorcycle, which would make reunification of the motorcycle with the owner more

difficult and less likely to occur. From this evidence, a jury could rationally infer an
                                       9

intent to permanently deprive the owner of the property. See Schminkey, 597

N.W.2d at 791-92 (stating a defendant’s actions subsequent to a taking can be

indicative of an intent or purpose to permanently deprive an owner of property).

When considered in connection with Hanneman’s lack of legal documentation of

ownership, there is substantial evidence from which a rational fact finder could

conclude Hanneman intended to permanently deprive Pratt of the motorcycle.

IV. Conclusion.

      We find Hanneman’s claim of insufficient evidence was properly preserved.

Substantial evidence supports the jury’s determination Hanneman took property

owned by another with the intent to permanently deprive.      The district court

appropriately denied Hanneman’s motion for judgment of acquittal.

      AFFIRMED.
