State of Iowa v. Rhonda Marie Wenmark ( 2023 )

IN THE COURT OF APPEALS OF IOWA
No. 22-0655
Filed February 8, 2023
STATE OF IOWA,
Plaintiff-Appellee,
vs.
RHONDA MARIE WEMARK,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Clay County, Andrew J. Smith,
District Associate Judge.
Rhonda Wemark appeals her conviction for third-degree theft—by
possession of stolen property. AFFIRMED.
Pamela Wingert of Wingert Law Office, Spirit Lake, for appellant.
Brenna Bird, Attorney General, and Martha E. Trout, Assistant Attorney
General, for appellee.
Considered by Bower, C.J., and Greer and Badding, JJ.
2
BOWER, Chief Judge.
Rhonda Marie Wemark appeals her conviction for third-degree theft—by
exercising control over stolen property. She asserts the evidence is insufficient to
sustain her conviction and the district court erred in admitting hearsay and
testimony in violation of a limine order. We find substantial evidence supports the
jury’s verdict and the evidentiary issues were not preserved or were waived. We
affirm.
I. Background Facts & Proceedings.
On August 27, 2020, Jeffrey Madsen was contacted by Ace Mini Storage
advising him his storage unit was partially open. Jeffrey’s daughter, Jordan
Workman, went to check on the unit, found it mostly empty, and called law
enforcement to report the unit had been burgled.1 Among the missing items were
over twenty marked storage tubs holding Madsen’s large collection of toy John
Deere tractors and trucks.
Workman contacted law enforcement with various tips about people selling
toy tractors on Facebook Marketplace. Her tips were investigated, but were
unsuccessful.
In early October, Workman recognized items advertised by an antique shop
as belonging to Madsen, including one she had damaged when packing it to place
in storage. Madsen also recognized several of the toys in the shop as belonging
to him. Workman, Madsen, and a law enforcement officer met with the antique
1 Law enforcement was unable to determine the exact date of the burglary.
Workman had last been to the unit in mid-to-late July, putting camping gear inside
and locking it up.
3
shop vendor, Ben Bendlin. Workman and Madsen identified several toys as
coming from Madsen’s collection.
Bendlin indicated the items identified by Workman and Madsen were
purchased together in mid-September from a woman who had approached him at
the Goodwill store. The woman sold him two marked storage tubs of toy tractors
for $250, telling Bendlin it was part of her grandfather’s collection.2 He recognized
her from seeing her at Goodwill “probably once a week” and was able to give the
woman’s age range and the make of the car she drove. Bendlin told law
enforcement he would contact them if he saw the woman who sold him the toys
again.
A week later, Bendlin saw the woman at Goodwill and approached her. He
told her the toys had been reported stolen and she should contact the police. He
called or flagged down a police officer.. The woman identified by Bendlin to law
enforcement was Wemark.
Wemark spoke with the officer. She agreed she sold Bendlin the toy
tractors, saying she had gotten them from her mother. Wemark provided the
officer with her phone number and said she would speak with the investigating
officer. The investigating officer tried to call or text Wemark several times, but she
did not respond. When officers contacted Wemark’s mother, she stated Wemark
did not get the toy tractors from her, she did not know where Wemark got the toys,
and she was not in contact with Wemark during the relevant time period.
2 Bendlin testified he hoped to sell the toys for around $1000, and one of the
identified tractors was worth $250 on its own.
4
Wemark was charged with theft in the third degree by exercising control
over stolen property. After a two-day trial, a jury convicted her and found the value
of property involved was more than $750 but less than $1500.
Wemark appeals.
II. Analysis.
A. Sufficiency of the evidence. We review sufficiency-of-the-evidence
claims for correction of errors at law. State v. Crawford, 972 N.W.2d 189, 202
(Iowa 2022). “The jury’s verdict binds this court if the verdict is supported by
substantial evidence.” Id. “Substantial evidence is evidence sufficient to convince
a rational trier of fact the defendant is guilty beyond a reasonable doubt.” Id. “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. In fact, the very
function of the jury is to sort out the evidence and ‘place credibility where it
belongs.’” State v. Thornton, 498 N.W.2d 670, 673 (Iowa 1993) (citations omitted).
“[W]e view the evidence in the light most favorable to the State, including all
‘legitimate inferences and presumptions that may fairly and reasonably be
deduced from the record evidence.’” Crawford, 972 N.W.2d at 202 (citation
omitted).
Wemark asserts insufficient evidence was presented to the jury to support
her conviction. To prove its case, the State had to prove three elements:
1. The John Deere memorabilia sold by [Wemark] was stolen.
2. Between the 25th day of August, 2020, and the 8th day of
October, 2020, [Wemark] exercised control over the John Deere
memorabilia.
3. At the time, [Wemark] knew, or had reasonable cause to
believe, the John Deere memorabilia had been stolen.
5
Wemark challenges the evidence supporting the third element. She argues the
inconsistencies in her story are not sufficient to establish she knew or should have
known the toy tractors were stolen.3
The jury’s instructions explained, “For the defendant to know something
means she had a conscious awareness that the property she exercised control
over had been stolen.”4 Iowa law has long stated, “Knowledge can be inferred
from a defendant’s unexplained possession of an item that was recently stolen.”
State v. Stephen, 537 N.W.2d 792, 794 (Iowa Ct. App. 1995). In addition,
knowledge that an item was stolen can be inferred from the defendant’s willingness
to sell it for substantially less than its value. Id.Wemark’s explanation for her possession was the toys had been her
grandfather’s and she obtained them from her mother. This explanation was
directly contradicted by stipulated testimony from Wemark’s mother;
3. [Wemark] did not get the items she sold to Mr. Bendlin from
me.
4. I do not have any toy tractors or similar items to what
[Wemark] sold to Mr. Bendlin.
5. I do not know where [Wemark] got the items from.
Thus, the jury could find Wemark’s explanation was not credible. Also, Wemark’s
sale of the tractors occurred less than a month after the theft was discovered, and
the circumstances of her sale of the toy tractors to Bendlin—approaching a person
3 Wemark’s argument references testimony that others “may have been involved
in taking the missing property.” The State did not need to prove who stole the
property, just that Wemark exercised control over the stolen property and knew or
should have known it was stolen.
4 The instructions also told the jury to “make deductions and reach conclusions
according to reason and common sense,” “[c]onsider the evidence using your
observations, common sense and experience,” and base any verdict “solely on the
evidence, your reason and common sense, and these instructions.”
6
in a Goodwill and offering to sell tubs of items—could be considered by the jury as
unusual, to say the least. Moreover, Wemark was willing to sell the toy tractors for
$250—substantially less than the value of the toy tractors expressed by Bendlin
and found by the jury. The jury weighed the evidence and the credibility of the
witnesses. See Thornton, 498 N.W.2d at 673. Based on the evidence, a
reasonable jury could infer Wemark knew or should have known the toy tractors
had not been acquired in a lawful manner. See Crawford, 972 N.W.2d at 202.
Viewing the evidence in the light most favorable to the State, substantial evidence
in the record supports the jury’s verdict.
B. Hearsay. “We review evidentiary rulings for an abuse of discretion.”
State v. Fontenot, 958 N.W.2d 549, 555 (Iowa 2021). “[T]he standard of review
for hearsay is for errors at law.” Id.Wemark lists several instances of the testimony she characterizes as
hearsay.5 However, she also admits error was not preserved and “no objection to
this evidence was heard at trial.”
“The preservation of error doctrine is grounded in the idea that a specific
objection to the admission of evidence be made known, and the trial court be given
an opportunity to pass upon the objection and correct any error.” State v. Brown,
656 N.W.2d 355, 361 (Iowa 2003). “The doctrine is rooted in principles of fairness
where neither the state nor the defendant can raise a new claim or defense on
appeal that could have been, but failed to be, raised at trial.” State v. Dessinger,
5 The testimony at issue generally related to statements made by Madsen to
Workman. Madsen died in June 2021, six months after Wemark was charged but
eight months before trial.
7
958 N.W.2d 590, 598 (Iowa 2021). As error was not preserved below, we do not
consider Wemark’s hearsay claims.6 See id. at 599.
C. Limine order. Wemark’s final argument is the district court erred in
admitting testimony in violation of a motion in limine. To establish reversible error,
Wemark “must show the violation of the limine order resulted in prejudice that
deprived her of a fair trial.” State v. Frei, 831 N.W.2d 70, 80 (Iowa 2013), overruled
on other grounds by Alcala v. Marriott Int’l, Inc., 880 N.W.2d 699, 708 n.3 (Iowa
2016).
During trial, Wemark made no objection to the officer’s testimony or the
State’s closing and rebuttal arguments. Wemark did not move for a mistrial based
on violation of the limine before the case was submitted to the jury. She did not
ask for a jury instruction or admonition. She did not later assert the violation of the
limine ruling as a ground for her motion for new trial. In other words, the district
court had no opportunity to evaluate if the testimony and arguments objected to on
appeal violated the motion in limine or, if a violation occurred, whether it was
prejudicial to the point of denying Wemark a fair trial.
When a defendant does not take action at trial regarding a violation of a
ruling on a motion in limine, they waive any error. State v. Latham, 366 N.W.2d
6 Prior to recent amendments to Iowa Code section 814.7, Iowa courts addressed
unpreserved hearsay claims on direct appeal in the context of ineffective-
assistance-of-counsel claims. See, e.g., State v. Tompkins, 859 N.W.2d 631, 634
(Iowa 2015) (evaluating counsel’s failure to object to potential hearsay statements
under an ineffective-assistance-of-counsel rubric). However, section 814.7 now
limits ineffective-assistance-of-counsel claims to postconviction-relief
proceedings, and we cannot evaluate such claims on direct appeal. See State v.
Davis, 971 N.W.2d 546, 555 n.2 (Iowa 2022) (“Section 814.7 precludes relief on
direct appeal for Davis’s ineffective-assistance claim . . . . That claim can only be
pursued through postconviction proceedings.”).
8
181, 183 (Iowa 1985). “To hold otherwise would permit a defendant to take a
chance with the jury, holding a claimed error in reserve in case of conviction.” Id.(citation omitted).7 Wemark’s failure to take any action at trial constituted a waiver
of any error on the issue.
AFFIRMED.
7 Wemark’s cited authority addresses the preservation of error on a ruling of
admissibility “beyond question” under a motion in limine; it does not address
whether testimony or argument violates the ruling or if the court offered an
appropriate remedy.