State of Iowa v. Michael Triplett ( 2021 )

IN THE COURT OF APPEALS OF IOWA
No. 19-1902
Filed July 21, 2021
STATE OF IOWA,
Plaintiff-Appellee,
vs.
MICHAEL TRIPLETT,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, William P. Kelly, Judge.
The defendant challenges the sufficiency of the evidence to support his
conviction. AFFIRMED.
Jesse A. Macro Jr. of Macro & Kozlowski, LLP, West Des Moines, for
appellant.
Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant
Attorney General, for appellee.
Considered by Mullins, P.J., Schumacher, J., and Potterfield, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2021).
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POTTERFIELD, Senior Judge.
Michael Triplett was charged with having dominion or control of a firearm as
a convicted felon. See Iowa Code § 724.26(1) (2018). At his September 2019
trial, the jury was instructed it could find Triplett guilty if the State proved the
following:
1. On or about September 30, 2018, [Triplett] knowingly, or
someone he aided or abetted knowingly, had under his dominion and
control, a firearm.
2. [Triplett] or someone he aided and abetted was previously
convicted of a felony.
In a general verdict, the jury found Triplett guilty.
On appeal, Triplett challenges the sufficiency of the evidence supporting his
conviction. But Triplett only challenges the sufficiency of the evidence proving he
had a firearm in his dominion or control; he does not challenge whether there was
substantial evidence he aided and abetted a felon in possessing a firearm.
Effective July 1, 2019,
[w]hen 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.
Iowa Code § 814.28 (Supp. 2019) (emphasis added). In other words, we are
required to affirm if at least one of the alternatives presented to the jury is
supported by substantial evidence.1 See id.; see also State v. Klawonn, 609
1Section 814.28 applies to Triplett’s case; his entire trial took place after the law
went into effect, and judgment was not entered against him until November 2019.
See State v. Greening, No. 19-1822, 2021 WL 2708940, at *2 n.3 (Iowa Ct. App.
June 30, 2021); State v. Lee, No. 19-1585, 2020 WL 5944453, at *1 n.1 (Iowa Ct.
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N.W.2d 515, 522 (Iowa 2000) (providing that the legislature’s use of “shall” in a
statute “create[s] a mandatory duty, not discretion”). And Triplett does not
challenge whether substantial evidence supports the “aiding and abetting”
alternative, so he waived that argument.2 See State v. Adney, 639 N.W.2d 246,
250 (Iowa Ct. App. 2001) (“When a party, in an appellate brief, fails to state, argue,
or cite to authority in support of an issue, the issue may be deemed waived.”).
Failure to challenge one of the alternatives is tantamount to conceding substantial
evidence supports that theory. See Hyler v. Garner, 548 N.W.2d 864, 870 (Iowa
1996) (“[O]ur review is confined to those propositions relied upon by the appellant
for reversal on appeal.”); cf. In re P.L., 778 N.W.2d 33, 40 (Iowa 2010) (concluding
the court need not consider the undisputed grounds and affirming on those, where
the parent’s rights were terminated on multiple grounds or theories and the court
can affirm if substantial evidence supports any one ground).
We could proceed to consider Triplett’s challenge to the sufficiency of the
evidence under the theory he was the principal actor. See Lee, 2020 WL 5944453,
at *1 (noting the defendant failed to “dispute the sufficiency . . . of the evidence
regarding his guilt on the other theories the jury considered,” but ultimately
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”).
2 In fact, Triplett cannot challenge the sufficiency of the evidence supporting the
“aiding and abetting” alternative on appeal because he did not raise the issue in
his motion for judgment of acquittal before the district court. See State v. Truesdell,
679 N.W.2d 611, 615 (Iowa 2004) (“To preserve error on a claim of insufficient
evidence for appeal review in a criminal case, the defendant must make a motion
for judgment of acquittal that identifies the specific grounds raised on appeal.”).
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considering and affirming after concluding “ample evidence support[ed]” the theory
specifically challenged by the defendant). But the effort would be futile. Even if
Triplett is meritorious by convincing us there is insufficient evidence to prove he
was the principal actor, we would still be required to affirm his conviction under the
other, unchallenged theory on which the jury was instructed. See Iowa Code
§ 814.28.
Therefore, without further consideration, we affirm Triplett’s conviction.
AFFIRMED.