State of Iowa v. Heather L. Swanson

IN THE COURT OF APPEALS OF IOWA
No. 21-0694
Filed March 30, 2022
STATE OF IOWA,
Plaintiff-Appellee,
vs.
HEATHER L. SWANSON,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Boone County, Stephen A. Owen,
District Associate Judge.
A defendant appeals her conviction for theft, contending there is insufficient
evidence she had the intent to permanently deprive the owner of their property.
AFFIRMED.
Martha J. Lucey, State Appellate Defender, and Ashley Stewart, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney
General, for appellee.
Considered by May, P.J., and Schumacher, J. and Doyle, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2022).
2
SCHUMACHER, Judge.
Heather Swanson appeals her conviction for theft in the third degree,
contending there is insufficient evidence she had the intent to permanently deprive
the owner of their property. We find substantial evidence supports the conviction.
Accordingly, we affirm.
I. Background Facts and Proceedings
A reasonable jury could find the following facts to support Swanson’s
conviction. Swanson was shopping at a retail store on April 19, 2020.1 John Smith,
an employee working as a loss prevention associate, was alerted to Swanson’s
presence. He began surveilling Swanson as she shopped. He observed Swanson
remove labels from clearance dairy items and place them on two items of meat.2
Swanson placed the labels on the meat while standing approximately halfway
down an aisle where no other shoppers were present.
Upon finishing her shopping, Swanson began scanning her items at a self-
checkout lane. A surveillance video introduced at trial showed Swanson as she
scanned her items. Testimony at trial indicated that when an item was properly
scanned, the item would show up on a display screen, the system would make an
audible beep, and the scanning light would turn from green to red. Swanson
denies knowledge of how the system worked, claiming she relied solely on the
auditory signal to determine when an item was scanned. During checkout,
Swanson failed to correctly scan several items, including a bag of chips, a pizza,
1 Swanson claims her long-time boyfriend was also present, although John Smith
testified he never saw the boyfriend.
2 Smith did not see Swanson place a clearance tag on a third item, which was
discovered after he compared her receipt to her items after checkout.
3
and dog treats. She also scanned the clearance dairy tags she affixed to the meat
rather than the proper bar codes. She rotated several other items in order to
properly scan them.
After finishing at the checkout, Swanson went to customer service.
Swanson claims she believed her total cost was below what she expected, so she
went to customer service to ask what to do. She further claims the customer
service employee told her she should go home and call back if she determined she
paid an incorrect amount.3
Smith stopped Swanson just before she exited the store and informed her
that they needed to discuss the items she failed to scan. After examining her
receipt and shopping cart, Smith determined Swanson’s total was about seventy
dollars below what it should have been. As a result, Smith contacted the local
police, who arrested Swanson. Swanson, who has significant health problems,
claims she was scanning items quickly because she did not feel well and wanted
to get home. She denied deliberately failing to scan items or placing different tags
on multiple items.
Swanson was charged with theft in the third degree by trial information on
May 28. She pled not guilty, and the case went to a jury trial on February 2, 2021.
During trial, Smith, Swanson, a police officer, and Swanson’s boyfriend testified.
After the close of the State’s evidence, Swanson moved for a judgment of acquittal,
which was denied. She renewed the motion after the close of all evidence, which
was also denied. Swanson was found guilty of third-degree theft, in violation of
3 No testimony was provided from a customer service representative at trial.
4
Iowa Code sections 714.1(4) and 714.2(3) (2020) on February 3, 2021.4 The court
sentenced Swanson to two years in prison, but suspended the sentence and
placed Swanson on probation. Swanson appeals.
II. Standard of Review
We review challenges to the sufficiency of evidence for correction of errors
at law. State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012). Our supreme court
has summarized our review:
In reviewing challenges to the sufficiency of evidence supporting a
guilty verdict, courts consider all of the record evidence viewed in the
light most favorable to the State, including all reasonable inferences
that may be fairly drawn from the evidence. We will uphold a verdict
if substantial record evidence supports it. We will consider all the
evidence presented, not just the inculpatory evidence. Evidence is
considered substantial if, when viewed in the light most favorable to
the State, it can convince a rational jury that the defendant is guilty
beyond a reasonable doubt. Inherent in our standard of review of
jury verdicts in criminal cases is the recognition that the jury [is] free
to reject certain evidence, and credit other evidence.
Id. (alteration in original) (internal citations and quotations omitted).
III. Discussion
Swanson claims that there is insufficient evidence to support her conviction.
In particular, she claims that there is insufficient evidence that she intended to
permanently deprive the retailer of their property. Swanson contends she believed
she was properly scanning her items, and only missed some items due to her lack
of knowledge of how the checkout system worked and the beeps coming from
nearby checkout counters. She also denies placing clearance tags on the items
of meat she scanned.
4Following the jury verdict for theft, a separate trial was conducted concerning an
enhancement due to two prior theft convictions.
5
“Specific intent is seldom capable of direct proof.” State v. Ernst, 954
N.W.2d 50, 55 (Iowa 2021) (quoting State v. Walker, 574 N.W.2d 280, 289 (Iowa
1998)). “Therefore, specific intent will often ‘be shown by circumstantial evidence
and reasonable inferences drawn from the evidence.’” Id. As the Ernst court
noted,
While other conflicting scenarios can be postulated, a court faced
with a record of historical facts that supports conflicting inferences
must presume—even if it does not affirmatively appear in the
record—that the trier of fact resolved any such conflicts in favor of
the prosecution, and must defer to that resolution.
Id. at 57-58 (quoting State v. Bentley, 757 N.W.2d 257, 263 (Iowa 2008)).
Swanson asserts the evidence presented is susceptible to two equally
plausible explanations: (1) she intended to steal the items by deliberately failing to
scan them, or (2) she simply did not understand how the machines worked and
believed she had paid for the items. She cites State v. Truesdell for the proposition
that “when two reasonable inferences can be drawn from a piece of evidence, we
believe such evidence only gives rise to a suspicion, and, without additional
evidence, is insufficient to support guilt.” 679 N.W.2d 611, 618-19 (Iowa 2004).
Thus, according to Swanson, there is insufficient evidence of her intent to steal the
items.
We readily distinguish the present case from Truesdell. First, Truesdell
relied on a single piece of evidence—the defendant was convicted of possession
of a precursor with intent to manufacture, and the inference of intent was based
solely on the possession of seventy boxes of pseudoephedrine. Id. at 614. Here,
there was eyewitness testimony of Swanson placing clearance dairy tags on meat
items, video of her failing to scan items, including times at which the bar code was
6
pointed upwards toward Swanson, and video of Swanson correctly scanning other
items after turning them around to enable the scanner to pick up the barcode.
Therefore, this is not a case where a single piece of evidence produced multiple
reasonable inferences.
When “[t]he success of [the defendant]’s claim at trial hinged on the facts
as viewed by the fact-finder . . . it is not for us to interfere with the finding made
when supported by substantial evidence, even though the evidence may have also
supported a finding favorable to the defendant.” Ernst, 954 N.W.2d at 58 (first and
second alterations in original) (quoting State v. Keeton, 710 N.W.2d 531, 535 (Iowa
2006)). Here, there is substantial evidence from which a jury could infer Swanson
had the requisite intent to permanently deprive the retailer of their property,
including Smith’s testimony that he saw Swanson place clearance dairy tags on
two meat items in an isolated aisle, her ability to properly scan many items at
checkout, the orientation of the items that improperly scanned, as well as the jury’s
power to weigh the credibility of witnesses. While the jury certainly could have
believed Swanson’s testimony, we will not second-guess their credibility
determinations in the face of substantial evidence supporting their conclusions.
Sufficient evidence exists in the record to support her conviction. Accordingly, we
affirm.
AFFIRMED.