State of Iowa v. Jeremy James Greening ( 2021 )

IN THE COURT OF APPEALS OF IOWA
No. 19-1822
Filed June 30, 2021
STATE OF IOWA,
Plaintiff-Appellee,
vs.
JEREMY JAMES GREENING,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, David M. Porter, Judge.
The defendant challenges the sufficiency of the evidence supporting his
conviction for first-degree theft. AFFIRMED.
Martha J. Lucey, State Appellate Defender, and Theresa R. Wilson,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Darrel Mullins, Assistant Attorney
General, for appellee.
Considered by Bower, C.J., Tabor, J., and Potterfield, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2021).
2
POTTERFIELD, Senior Judge.
Jeremy Greening was charged with theft in the first degree. At his
September 2019 trial, the jury was instructed it could find Greening guilty of the
offense if the State proved either one of two alternatives—that Greening took
possession of the skid loader with the intent to deprive the owner of it or Greening
exercised control over the stolen skid loader while knowing it was stolen. In a
general verdict, the jury found Greening guilty. 1 Greening appeals, arguing there
was insufficient evidence to support either alternative so his conviction should be
reversed.
I. Background Facts and Proceedings.
Dustin Dalton was hired to do some cement work for a house being built in
Bondurant in April 2019. To complete the job, he borrowed a skid loader from
James Harney and a trailer from another friend. Dalton used the skid loader on
Friday, April 26 but was unable to finish the project that day. The skid loader and
trailer were parked at the Bondurant property when he left on April 26, but they
were gone when he returned the next day. Neighbors in the area had a security
system, and they provided an image from 8:22 a.m. on April 27 that showed a red
Chevrolet Tahoe driving away with the trailer and skid loader in tow. Dalton put
the image on Facebook and asked for anyone with information about the missing
truck and trailer to contact him.
Sherry Clark lives in Des Moines. She testified that between 9:00 and 10:00
a.m. on April 27, her former neighbor, Greening, came to her front door and asked
1 Afterward, Greening admitted to two prior felony convictions, and he was
sentenced with the habitual-offender enhancement.
3
if he could leave a trailer with a skid loader next to her garage while he went to get
a different truck. Clark said yes, and she saw Greening driving the red vehicle and
parking the trailer.2 She also saw Greening return about an hour later to get the
trailer, although she noted he was still using the same red vehicle.
Raymond Clark, Sherry’s adult son, visited his mother on April 27 and saw
the trailer and skid loader parked at the home. He also saw Dalton’s post on
Facebook. Raymond contacted Dalton and reported the items’ location and told
him Greening was the person who left them there; Raymond never saw
Greening—he relied on Sherry’s statements when making this report.
Dalton contacted the Polk County Sheriff’s Office and reported the thefts.
He also gave the detective the information he received from Raymond. Neither
the skid loader nor the trailer were ever recovered.
In June 2019, Greening was charged with first-degree theft. The State later
amended the trial information to include an habitual offender enhancement.
Following a jury trial in September, Greening was convicted as charged. He
appeals.
II. On Appeal.
In his appeal brief, Greening argues there was insufficient evidence to prove
either the “exercised control” alternative or the “taking” alternative beyond a
reasonable doubt so his conviction for first-degree theft should be reversed. In its
responsive brief, the State maintains we can affirm Greening’s conviction if either
2At trial, Sherry was shown the picture from the security camera; she agreed that
was “the truck and trailer that [she] had been testifying about.”
4
alternative is supported by substantial evidence, citing Iowa Code section 814.28
(Supp. 2019). The statute, which took effect July 1, 2019, states:
When the prosecution relies on multiple or alternative theories
to prove the commission of a public offense, a jury may return a
general verdict. If the jury returns a general verdict, an appellate
court shall not set aside or reverse such a verdict on the basis of a
defective or insufficient theory if one or more of the theories
presented and described in the complaint, information, indictment, or
jury instruction is sufficient to sustain the verdict on at least one
count.
Still, the State maintains there is substantial evidence to support both alternatives.
Then, in a reply brief, Greening argues for the first time that section 814.28 is
unconstitutional because it violates the separation-of-powers doctrine, equal
protection guarantees, and his right to due process.3 The State filed a motion to
strike the reply brief, arguing we cannot consider the issues Greening first raised
in his reply brief. Our supreme court ordered us to consider the State’s motion to
strike with the appeal.
“Generally, we will not consider issues raised for the first time in a reply
brief.” Villa Magana v. State, 908 N.W.2d 255, 260 (Iowa 2018). Our supreme
court has recognized some limited exceptions to this rule, but those exceptions are
not implicated here. See id. (listing the court’s “noted exceptions” to the general
prohibition). Therefore, we grant the State’s motion to strike Greening’s reply brief.
3 Greening does not contest that section 814.28 applies to his case, with good
reason. His trial was conducted months after the law went into effect, and
judgment was entered against him in October 2019. See State v. Lee, No. 19-
1585, 2020 WL 5944453, at *1 n.1 (Iowa Ct. App. Oct. 7, 2020) (using the date
judgment and sentence was entered against the defendant to determine whether
section 814.28 applied to their case); see also State v. Damme, 944 N.W.2d 98,
103 n.1 (Iowa 2020) (considering the applicability of other 2019 amendments to
the Iowa Code and concluding “[t]he determinative date is the date of the judgment
of sentence that is appealed”).
5
See Polk County v. Davis, 525 N.W.2d 434, 435 (Iowa Ct. App. 1994) (granting
the appellee’s motion to strike the appellant’s reply brief, which was “predicated on
the fact [the appellant] raised issues in his reply brief which were not raised in his
brief on appeal”).
III. Sufficiency of the Evidence.
We must determine whether substantial evidence supports at least one of
the alternatives given to the jury. See Iowa Code § 814.28. We review challenges
to the sufficiency of the evidence for correction of errors at law. State v. Albright,
925 N.W.2d 144, 150 (Iowa 2019). “We review all of the evidence presented at
trial and consider it in the light most favorable to the State.” Id. To preserve error
on sufficiency-of-the-evidence claims, the defendant must make a specific motion
for judgment of acquittal at trial. See id.Here, the jury was instructed it should find Greening guilty of first-degree
theft if the State proved either or both of the following alternatives.
1. On or about the 27th day of April, 2019, [Greening] took
possession or control of a skid loader.
2. [Greening] did so with the intent to deprive the owner of the
skid loader.
3. The property, at the time of the taking, belonged to James
Harney.
OR
1. A skid loader was stolen.
2. On or about the 27th day of April, 2019, [Greening]
exercised control over the property.
3. At the time, [Greening] knew the property had been stolen.
4. [Greening] did not intend to promptly return it to the owner
or deliver it to an appropriate public officer.
As to the first alternative, Greening argue there is not substantial evidence he is
the person who took the skid loader from the job site in Bondurant. As to the
6
second alternative, Greening maintains there is not substantial evidence he knew
the property was stolen.
There is no direct evidence to establish it was Greening driving the red
Tahoe towing equipment away from the jobsite, but circumstantial evidence
supports a finding it was him. According to the timestamped image from the
neighbor’s security camera, the equipment was taken from the Bondurant jobsite
at about 8:22 a.m. on Saturday, April 27. Sherry Clark testified Greening was at
her front door in Des Moines between 9:00 and 10:00 a.m.—so approximately
thirty to ninety minutes later—driving the same red vehicle and pulling the trailer
with the skid loader on it. Additionally, while he originally asked if he could park it
while he went to get another vehicle, Sherry noticed that Greening returned in the
same red vehicle a short time later to take the trailer and skid loader. Given the
short time frame between the theft and Greening arriving at Sherry’s door with the
same truck and equipment, we think a jury can infer it was Greening who took the
equipment from the jobsite.
For similar reasons, the jury could also infer Greening knew the property
was stolen at the time while he was in possession of it—when he left it near
Sherry’s home. “[A] defendant’s unexplained possession of recently stolen
property justifies an inference he illegally received it.” State v. Selestian, 515
N.W.2d 356, 358 (Iowa Ct. App. 1994). Less than two hours is a very short amount
of time. See State v. Brightman, 110 N.W.2d 315, 316–17 (Iowa 1961) (concluding
a five-month interval between the theft and the finding of the stolen item in the
defendant’s possession did not preclude inference the defendant knew it was
stolen); State v. Clark, No. 19-1830, 2021 WL 616185, at *1–2 (Iowa Ct. App. Feb.
7
17, 2021) (applying inference in the case of a stolen vehicle, where defendant was
seen with the vehicle four days after the theft and no one saw who initially took the
vehicle). The short amount of time that passed between the items being taken
combined with Greening’s claim he needed to leave the skid loader while he found
a new truck—a statement that was not borne out since he returned in the same
vehicle a short time later—support the inference Greening was aware the skid
loader was stolen.
While we need only find that substantial evidence supports one of the
alternatives given to the jury, we conclude the jury could have properly convicted
Greening under both alternatives. We affirm Greening’s conviction for theft in the
first degree.
AFFIRMED.