State of Iowa v. Gilbert L. Simon Jr.

IN THE COURT OF APPEALS OF IOWA
No. 20-0653
Filed June 30, 2021
STATE OF IOWA,
Plaintiff-Appellee,
vs.
GILBERT L. SIMON JR.,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Des Moines County, Michael J.
Schilling, Judge.
Gilbert Simon appeals his conviction of theft in the second degree.
AFFIRMED.
Martha J. Lucey, State Appellate Defender, and Theresa R. Wilson,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Thomas J. Ogden, Assistant
Attorney General, for appellee.
Considered by May, P.J., and Greer and Schumacher, JJ.
2
MAY, Presiding Judge.
Gilbert Simon appeals his conviction of theft in the second degree in
violation of Iowa Code sections 714.1(1) and 714.2(2) (2019). We affirm.
Simon and his accomplices stole a set of wheels and tires from Frank Millard
and Company. The State charged Simon and one accomplice, David Tensley,
with theft in the second degree. Simon and Tensley began trial as co-defendants.
During trial, the State was permitted to dismiss its case against Tensley because
a witness failed to appear. Ultimately, the jury found Simon guilty as charged.
On appeal, Simon argues the district court erred and abused its discretion
by allowing a witness to testify regarding the value of the wheels and tires. Simon
contends this testimony was inadmissible because the witness was not an owner
“entitled to a presumption of knowledge” of the wheels and tires’ value, “did not
have personal knowledge of the[ir] value, and relied upon hearsay for his
testimony.” And “[w]ithout his” allegedly-inadmissible “testimony, there was no
other evidence presented to the jury on the value of the [wheels and] tires.”
Therefore, Simon contends, his “conviction, sentence, and judgment” for theft in
the second degree “should be reversed and his case remanded for judgment and
sentencing on the lesser offense of [t]heft in the [f]ifth [d]egree.”
We disagree. At the outset, it is not clear whether, as Simon seems to
claim, the erroneous admission of evidence could justify an acquittal on Simon’s
conviction of theft in the second degree. Simon has not cited—and we have not
found—authority that supports an acquittal under these circumstances. As support
for his request, Simon cites only State v. Henderson, No. 13-1199, 2014 WL
7343223, at *7 (Iowa Ct. App. Dec. 24, 2014). Yet, Henderson involved a claim of
3
ineffective assistance of counsel in failing to move for judgment of acquittal. See
2014 WL 7343223, at *5–7. And Simon’s briefs do not mention a motion for
judgment of acquittal or a related claim of ineffective assistance. So we see no
basis to grant the relief Simon requests. We also decline to order relief he has not
requested, such as a new trial.
Even if we place those concerns aside, however, Simon still cannot prevail.
The central premise of Simon’s appeal is that all of the evidence about the stolen
property’s value was improperly admitted. But Simon did not object when Ryan
Coffin, a member of Frank Millard and Company’s senior management, testified
that the cost to replace the stolen wheels and tires would be approximately $2400
or $2500.1 Although Simon’s co-defendant (Tensley) raised a hearsay objection
to this testimony, Simon “cannot rely on” that objection because “he never moved
to join in such objection.” State v. Fuller, No. 00-1872, 2002 WL 100425, at *1
(Iowa Ct. App. Jan. 28, 2002); cf. State v. Voelkers, 547 N.W.2d 625, 631 (Iowa
Ct. App. 1996) (finding error preserved even though defendant did not object
during trial but counsel entered into blanket agreement to join in any of co-
defendant’s motions put before the court). So we conclude Simon failed to
preserve error. See State v. Rivera, 614 N.W.2d 581, 584 (Iowa Ct. App. 2000)
(finding a timely objection necessary to preserve error for review); see also
Gavlock v. Coleman, 493 N.W.2d 94, 98 (Iowa Ct. App. 1992) (finding issue not
1 Jury instruction nineteen stated, in part: “The ‘value’ of property means its highest
value by any reasonable standard at the time of the theft. Reasonable standard
includes, but is not limited to, the property’s actual value, its replacement value, or
its market value within the community.” (Emphasis added.) Simon does not
challenge the jury instructions. So we believe Coffin’s testimony as to the
replacement cost of the wheels and tires was appropriate evidence of their “value.”
4
preserved in civil matter where appealing party neither made independent
objection nor joined in objection of other party).
In his reply brief, Simon invites us to reexamine our cases that require a
defendant to raise—or at least join—an objection in order to preserve error. But
we normally refuse to consider issues raised for the first time in a reply brief. Villa
Magana v. State, 908 N.W.2d 255, 260 (Iowa 2018). While there are exceptions,
Simon has not pointed to one. See id. (“Yet we have noted exceptions.”).
Moreover, under our rules, Simon’s appellate brief was supposed to provide his
explanation of how error was preserved. See Iowa R. App. P. 6.903(2)(g)(1).
Simon attempted to fulfill this requirement by claiming error was preserved through
“the defendants’ joint . . . objections” to Coffin’s testimony. (Emphasis added.) But
Simon’s appellate brief did not claim we should abandon our prior precedents and
hold that Simon preserved error through Tensley’s independent hearsay objection
in which Simon did not join. So we think that issue is better left for “another case
and another day.” See State v. Shackford, 952 N.W.2d 141, 148 (Iowa 2020)
(quoting State v. Gross, 935 N.W.2d 695, 704 (Iowa 2019)).
Simon also notes that “[i]n his motion in limine filed before trial, Simon asked
for the exclusion of all hearsay evidence.” The district court granted the motion
but also said its ruling was “only a preliminary ruling; it’s not a final determination
as to the admissibility of evidence.” “So,” the court explained, “if there’s a question
that counsel anticipate is going to call for hearsay, there should be an objection
made notwithstanding the court’s ruling in limine.”
We do not believe error was preserved through the motion in limine or the
court’s “preliminary ruling.” Rather, as the district court properly explained, Simon
5
was still under an obligation to object to potential hearsay “notwithstanding the
court’s ruling in limine.” By failing to do so, Simon failed to preserve error. See
State v. Delaney, 526 N.W.2d 170, 177 (Iowa Ct. App. 1994) (“It is generally
recognized that a motion in limine does not preserve error since error does not
occur until the matter is presented at trial. An objection should be made at trial to
preserve error.” (citation omitted)).
IV. Conclusion
We affirm Simon’s conviction for second-degree theft.
AFFIRMED.