State of Iowa v. Melissa Kay Kittell ( 2020 )

IN THE COURT OF APPEALS OF IOWA
No. 19-1962
Filed October 21, 2020
STATE OF IOWA,
Plaintiff-Appellee,
vs.
MELISSA KAY KITTELL,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Christine Dalton,
District Associate Judge.
Melissa Kittell appeals following her conviction for third-degree theft.
AFFIRMED.
Zeke R. McCartney of Reynolds & Kenline, L.L.P., Dubuque, for appellant.
Thomas J. Miller, Attorney General, and Martha E. Trout, Assistant Attorney
General, for appellee.
Considered by Bower, C.J., and May and Ahlers, JJ.
2
BOWER, Chief Judge.
Melissa Kittell challenges the sufficiency of the evidence for her conviction
for third-degree theft, in violation of Iowa Code sections 714.1, 714.2(3) (2018).1
In the alternative, Kittell asserts the court convicted her of the wrong degree of
theft. Because substantial evidence supports her conviction and the district court
did not err in entering conviction, we affirm.
Following a bench trial, the district court made these findings:
On December 1, 2018, Melissa Kittell was employed by Kwikshop as
a cashier at one of their Davenport stores. The store is located in
Scott County, Iowa. While working that day she activated then took
possession of a $500.00 gift card and $100.00 gift card. She made
numerous attempts to conceal these transactions by creating fake
transactions to balance her drawer. At no time did she pay for either
gift card. In addition[ ] Ms. Kittell used the higher gift card in two
transactions and removed property from Kwikshop. Thus using the
stolen gift card to pay for Kwikshop property taken for an additional
$117.65 loss to her employer. The total loss on December 1, 2018,
from Ms. Kittell’s theft, documented by Kevin Barton and Myrna
Myers, was $717.65.
Ms. Kittell’s crimes are clearly viewable on State’s exhibit #2.
She testified that she accidentally swiped the $500.00 card while
cleaning the card reader by swiping a card through the reader with a
paper towel. That was both ridiculous and untruthful. No paper
towel, no visible cleaning before, during, or after the transaction, and
she made no attempt to cancel the transaction. She simply typed,
swiped, closed the drawer without putting anything inside, grabbed
the receipt, and moved off camera. Same for the second gift card
transaction. Her fiddling with the register was well separated in time
from the theft transactions. When the cash register records were
checked by management, it was clearly an attempt to create a
balanced drawer receipt for herself. She was creating a fake cover
transaction using vacuum income. That store has no vacuum but the
amount happened to match the $500.00 loss.
1 Iowa Code section 714.2(3) then provided:
The theft of property exceeding five hundred dollars but not
exceeding one thousand dollars in value, or the theft of any property
not exceeding five hundred dollars in value by one who has before
been twice convicted of theft, is theft in the third degree. Theft in the
third degree is an aggravated misdemeanor.
3
Ms. Kittell claims she only used the card to see if it had been
activated. . . .
....
Ms. Kittell is not credible. The evidence of the thefts on
December 1, 2018, is overwhelmingly persuasive. The State has
proven by evidence beyond a reasonable doubt that Ms. Kittell stole
property f[ro]m her employer totaling $717.65. She is guilty of theft
[in the third degree,] . . . an aggravated misdemeanor under existing
law at the time the crime was committed. However, since the theft
amounts have been raised by the State legislature effective July 1,
2019, she will be facing a lesser punishment to match the current
law.
The court sentenced Kittell to 240 days in jail, imposed a fine and
surcharges, ordered her to pay restitution in the amount of $700.00, and
suspended the sentence and fine.
Kittell appeals. She claims there is insufficient evidence to sustain the
conviction and, in the alternative, the court convicted her of the wrong degree of
theft in light of the newly enacted Iowa Code section 714.2(3).2
We review the sufficiency of the evidence for correction of errors at
law. Pursuant to this review, “we examine whether, taken in the light
most favorable to the State, the finding of guilt is supported by
substantial evidence in the record.” Substantial evidence exists
when the evidence “would convince a rational fact finder the
defendant is guilty beyond a reasonable doubt.”
State v. Kelso-Christy, 911 N.W.2d 663, 666 (Iowa 2018) (citations omitted).
We have reviewed all of the record evidence in the light most favorable to
the State, including all legitimate inferences and presumptions that could be fairly
and reasonably deduced from the record. State v. Thomas, 561 N.W.2d 37, 39
2 At the time of sentencing on October 25, 2019, section 714.2, which defines the
degrees of theft, had been amended. See 2019 Iowa Acts, ch. 140, § 11, eff. July
1, 2019. The amended statute provides, “[T]heft of property exceeding three
hundred dollars in value but not exceeding seven hundred fifty dollars in value is
theft in the fourth degree. Theft in the fourth degree is a serious misdemeanor.”
Iowa Code § 714.2(4) (2019).
4
(Iowa 1997). Because the trial court’s factual findings are supported by substantial
evidence, we are bound by them. See id.The court did not err in convicting Kittell for third-degree theft under the
statute in effect at the time of the offense. See State v. Marvin, 307 N.W.2d 10,
12 (Iowa 1981) (noting that the amendment of a statute after judgment was
rendered and while judgment was stayed on appeal does not affect the judgment
rendered); Iowa Code § 4.13(1)(c) (2018) (“The . . . amendment . . . of a statute
does not affect . . . [a]ny violation of the statute . . . prior to the amendment or
repeal.”). The district court appropriately imposed the reduced penalty under the
amended statute. See State v. Trader, 661 N.W.2d 154, 156 (Iowa 2003) (“We
have recognized that an amendment to a sentencing statute that reduces the
penalty for an offense committed prior to its effective date must be applied if the
statute is effective at the time of sentencing.”); State v. Chrisman, 514 N.W.2d 57,
61 (Iowa 1994) (holding that where legislation reducing the punishment for burglary
became effective after the crime was committed but before sentencing, the new
legislation applied); accord Iowa Code § 4.13(2) (“If the penalty, forfeiture, or
punishment for any offense is reduced by a reenactment, revision, or amendment
of a statute, the penalty, forfeiture, or punishment if not already imposed shall be
imposed according to the statute as amended.”). Finding no error, we affirm.
AFFIRMED.