STATE OF IOWA, Appellee, vs. ERICA LYNE WEST VANGEN, Appellant.
No. 20-1647
IN THE SUPREME COURT OF IOWA
Submitted January 19, 2022—Filed June 10, 2022
Appeal from the Iowa District Court for Linn County, Russell G. Keast, District Associate Judge.
A defendant challenges her conviction and sentence for criminal mischief in the fourth degree. AFFIRMED.
Oxley, J., delivered the opinion of the court, in which all justices joined.
Martha J. Lucey, State Appellate Defender, and Melinda J. Nye, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Thomas E. Bakke, Assistant Attorney General, for appellee.
Erica West Vangen was convicted of criminal mischief in the fourth degree after the prosecution presented alternative thеories to the jury—she either used a baseball bat to smash the windows of a car or she drove others to the scene and one of them smashed the windows. She argues that neither was supported by sufficient evidence, but even if one was supported, a new statute requiring the jury‘s general verdict to be affirmed as long as one theory was supported violates her constitutional rights. See
On our review of the еvidence, both theories presented to the jury were supported by sufficient evidence, so we need not take up the challenge to
I.
Jonnae Cole lived with her mother, Monick Williams, and Monick‘s husband, Alex, in March 2020. Monick woke up between 4:00 a.m. and 4:30 a.m. on March 30 to her husband arguing on the phone with someone named Yayo, who was threatening to do something to Monick when she left to go to work. Soon after, Monick and Alex left the house in Jonnae‘s Buick Rendezvous to pick up one of Alex‘s friends. They returned home a little past 5:00 a.m. and parked Jonnae‘s car on the street in front of the house. Later in the morning, Jonnae discovered her Rendezvous had been vandalized. Both driver‘s-side windows were shattered, the driver‘s-side mirror was broken, and a front tire was slashed.
During his investigation, Cedar Rapids Police Officer Tyler Richardson discovered that a Ring camera outside of a neighbor‘s house across the street captured the incident. When he watched the video, he saw a Buick sedan drive up and stop next to Jonnae‘s car at 5:39 a.m. With the passenger side of the Buick closest to the neighbor‘s Ring camera, and Jonnae‘s car on the other side of the Buick, it was difficult to see the actions on the driver‘s side of the Buick in the video. Even so, the video revealed that two individuals got out of the Buick, one from the passenger side and one from the driver‘s side, and caused the damage to Jonnae‘s car. Officer Richardson could not download the video, so he videotaped the Ring video as it played, and that video was shown to the jury at West Vangen‘s trial.
Monick identified West Vangen as a potential suspect because Alex had had an affair with West Vangen and owed her money. When Officer Richardson interviewed West Vangen, she eventually admitted she drove her car to the incident, but she denied causing any of the damage
The State charged West Vangen with criminal mischief in the fourth degree. She pleaded not guilty, and the case proceeded to a jury trial. At trial, West Vangen testified there were actually two other people in the car with her and those people exited the vehicle and caused the damage to Jonnae‘s vehicle. The State presented two alternative theories to the jury. Under the first theory, the State argued West Vangen was a principal and she exited the driver‘s seat of her car, took out a short metal baseball bat, and smashed the windows and mirror on Jonnae‘s vehicle. Under the second theory, the State argued West Vangen aided and abetted the crime. The State argued that even if there were three people in the car, which it contested, West Vangen drove her husband (who was identified as the person getting out of the passenger side of the Buick) and a third person to the vehicle knowing they planned to damage the car.
The jury was instructed that they could find West Vangen guilty of criminal mischief in the fourth degree under either a principal or an aiding-and-abetting theory, but they did not need to agree on which theory. The jury returned a general verdict finding West Vangen guilty of criminal mischief. The district court sentenced her to thirty days in jail but suspended the term and placed her on unsupervised probation for two years. The court also ordered West Vangen to pay victim restitution in the amount of $315 and to pay category “B” restitution for her court-appointed attorney in the amount of $60. West Vangen appealed her conviction and sentence, and we retained the case.
II.
West Vangen challenges the sufficiency of the evidence to support her conviction on both theories presented by the State. Previously, if a jury returned a general verdict in a case involving multiple theories to establish the same offense but not all theories were supported by sufficient evidence, the defendant would generally be entitled to a new trial without the unsupported theories. See State v. Tyler, 873 N.W.2d 741, 753–54 (Iowa 2016) (holding we reverse a general verdict when not all theories are supported by sufficient evidence). That is no longеr the case as of July 1, 2019. Rather, “[i]f the jury returns a general verdict, an appellate court shall not set aside or reverse such a verdict on the basis of a[n] . . . insufficient theory if one or more of the theories presented and described in the jury instruction is sufficient to sustain the verdict on at least one count.”
Upon our review of the sufficiency of the evidence, see State v. Folkers, 941 N.W.2d 337, 338 (Iowa 2020), we conclude the record contained sufficient evidence to support West Vangen‘s conviction on both theories of liability.
In conducting our analysis, we “consider all evidence, not just the evidence supporting the conviction, and view the evidence in the light most favorable to the State, including legitimate inferences and presumptions that may fairly and reasonably
A.
We first consider whether there was sufficient evidence for thе jury to find West Vangen guilty as a principal in the criminal mischief. The jury was instructed that the State had to prove beyond a reasonable doubt that West Vangen “did an act . . . that damaged a vehicle belonging to Jonnae Cole;” that she acted “with the specific intent to damage the property;” and “she did not have the right to do so.” See
At trial, West Vangen testified that her husband and Yayo were messaging Alex throughout the night and into the morning of March 30. During the early morning hours, Yayo and her husband told her to drive them to collect the money Alex owed to West Vangen. She pulled up in front of Monick and Alex‘s house, and Yayo told her to stop on thе street near the Rendezvous, which she knew Alex had driven in the past. According to West Vangen, Yayo told her to stay in the car and he got out of the backseat on the driver‘s side and bashed in the windows on the Rendezvous.
West Vangen argues the evidence establishes only that she transported her husband and Yayo to Jonnae‘s car but there was insufficient evidence to prove she actively participated in vandalizing the vehicle. She relies on her testimony that Yayo got out of the backseat, the inability to tell from the video whether the person who got out on the driver‘s side got out from the driver‘s seat or the backseat, and her theory that the illuminated brake lights on her car that can be seen in the video show she remained in the car with her foot on the brake pedal.
In response, the State relies on Officer Richardson‘s testimony. Reviewing the video as it played for the jury, Officer Richardson testified he could see there was an individual between the cars swinging an object at the Rendezvous. Officer Richardson also testified that when he watched the original Ring video, which was much clearer than the video of the video shown at trial, he could see the driver get out of the vehicle. Officer Richardson testified that there was a “flash of light” from the taillight оf West Vangen‘s LaSabre when it pulled up next to the Rendezvous, indicating the vehicle had been put into park. On cross-examination, he agreed that the video showed that the LeSabre‘s brake lights remained illuminated the entire time it was stopped next to the Rendezvous until the LeSabre drove away. When asked if that changed his mind about whether the driver could have gotten out of the car, he responded the car‘s emergency brake or parking brake could have accounted for the illuminated brake lights.
There is ample evidence that two people got out of West Vangen‘s LeSabre and damaged Jonnae‘s Rendezvous. And West Vangen admitted she was driving.
The question for the jury was whether there was enough evidence to establish that West Vangen was the person who got out on the driver‘s side and can be seen in the video swinging the bat. West Vangen relies heavily on her own testimony, but the prosecution discredited her testimony on a number of points. Most critical on this issue was the bodycam footage of Richardson‘s
Ultimately, whether West Vangen got out of the car and damaged Jonnae‘s car turns on whether the jury believed West Vangen‘s story or believed Officer Richardson when he testified that he could see the driver get out of the car when he viewed the original Ring video. These are credibility determinations, which we leave to the jury. State v. Hutchison, 721 N.W.2d 776, 780 (Iowa 2006) (“In determining the correctness of a ruling on a motion for judgment of acquittal, we do not resolve conflicts in the evidence, pass upon the credibility of witnesses, or weigh the evidence.”); State v. Thornton, 498 N.W.2d 670, 673 (Iowa 1993) (“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.”); State v. Blair, 347 N.W.2d 416, 420 (Iowa 1984) (“The very function of the jury is to sort out the evidence presented and place credibility where it belongs.”).
The defense theory that the brake lights showed West Vangen remained in the car was also for the jury to decide based on its collective experience. Notably, although West Vangen testified at trial, she never testified that she kept her foot on the brake to explain the continuously illuminated light. This was a theory raised by her counsel during cross-examination of Officer Richardson. But Officer Richardson provided an alternative theory to explain the illuminated brake light. He also pointed out the flicker of light that could be seen in the video indicating the car had been put into park, discrediting the defense theory that the driver‘s foot needed to remain on the brake pedal. If the jury believed Officer Richardson‘s explanation, there was sufficient evidence for it to conclude West Vangen was the person who got out of the car on the driver‘s side and can be seen swinging a bat in the video. In our careful consideration of all the evidence in the light most favorable to the State, we conclude that a reasonable jury could find West Vangen damaged the Rendezvous. See Blair, 347 N.W.2d at 421. The evidence supported West Vangen‘s conviction for criminal mischief under the State‘s principal theory of liability.
B.
We next address the State‘s aiding and abetting theory.
To sustain a conviction on the theory of aiding and abetting, the record must contain substantial evidence the accused assented to or lent countenance and approval to the criminal act either by active participation or by some manner encouraging it prior to or at the time of its commission.
Tyler, 873 N.W.2d at 750 (quoting State v. Spates, 779 N.W.2d 770, 780 (Iowa 2010)).
West Vangen argues there was insufficient evidence she knew the purpose of the trip or assisted the others in damaging the Rendezvous. We disagree. Although West Vangen argues she thought she was driving to Jonnae Cole‘s house at 5:39 in the morning to collect money she was owed, the jury could easily reject her testimony. See, e.g., Thornton, 498 N.W.2d at 673. West Vangen admitted she knew her husband and Yayo were texting with Alex throughout the night, she drove them to the house early in the morning, and she
Because we conclude that there was sufficient evidence for both theories,
III.
We turn to West Vangen‘s challenges to her sentence. At the December 4, 2020 sentencing, the district court ordered West Vangen to reimburse the state $60 toward her court-appointed attorney‘s fees. West Vangen appeals that order, challenging the constitutionality of the newly enacted process for determining if she had the reasonable ability to pay category “B” restitution, which includes reimbursement of the court-appointed attorney‘s fees.
West Vangen does not dispute that she received a notice of the new process required to challenge her ability to pay category “B” restitution, filed in her case on July 20. She admits she did not request the district court make a reasonable-ability-to-pay determination (either before or after her sentencing), submit the required financial affidavit, or otherwise challenge the restitution order in the district court. West Vangen challenges only the constitutionality of the revised procedural requirements as resulting in an illegal sentence, which she asserts is not subject to our normal preservation of error requirements. Assuming for purposes of this direct appeal that she is correct, see State v. Gross, 935 N.W.2d 695, 699 (Iowa 2019) (“Gross can raise the lack of a reasonable-ability-to-pay hеaring for the first time in a timely direct appeal.”), we reject her constitutional challenge. We review the constitutionality of the challenged statute de novo. See State v. Dudley, 766 N.W.2d 606, 612 (Iowa 2009).1
Effective June 20, 2020, the Iowa general assembly modified the process for determining whether a criminal defendant has the reasonable ability to pay “category ‘B’” items of restitution, including repayment of court-appointed attorney‘s fees. See
A.
The gist of West Vangen‘s right-to-counsel claim is that requiring indigent defendants to repay their legal expenses will chill their decision to request appointed counsel at the outset of their prosecution. See Dudley, 766 N.W.2d at 614 (holding that
That limitation has not changed. See
West Vangen argues the following changed procedures make the new procedure so onerous as to violate her right to counsel: (1) presuming that the defendant has the reasonable ability to pay category “B” items, (2) placing the burden on the defendant to rebut that presumption by a preponderance of the evidence, (3) requiring the defendant to request a determination of her ability to pay before the district court will consider it, (4) requiring full restitution if a request is not made within thirty days of sentencing, (5) making a restitution order immediately enforceable, and (6) limiting an offender to the
West Vangen essentially argues that once a court-appointed counsel is provided to a criminal defendant, her ability to pay for counsel should not be reassessed. This argument was rejected by the United States Supreme Court in upholding the Oregon recoupment statute when it explained:
A defendant in a criminal case whо is just above the line separating the indigent from the nonindigent must borrow money, sell off his meager assets, or call upon his family or friends in order to hire a lawyer. We cannot say that the Constitution requires that those only slightly poorer must remain forever immune from any obligation to shoulder the expenses of their legal defense, even when they are able to pay without hardship.
Fuller, 417 U.S. at 53–54. The same is true here, and we likewise reject West Vangen‘s argument that the new procedures violate her right to counsel.
B.
The changes in the procedures for determining a defendant‘s reasonable ability to pay are more aptly considerеd under West Vangen‘s due process challenge. “The overwhelming weight of federal and state authorities agree that procedural due process in the context of criminal restitution orders requires some
West Vangen does not dispute that she was put on notice of the changed process, so we focus on her challenge to the opportunity to be heard. With respect to a meaningful time,
With respect to providing the defendant a “meaningful manner” in which to challenge her ability to pay category “B” restitution, West Vangen challenges the statutory presumption that she is able to pay and the burden placed on her to rebut that presumption by a preponderance of the evidence. But a rebuttable presumption that allows a defendant to offer evidence at the relatively low preponderance-of-the-evidence standard applied in civil cases does not per se violate procedural due process. See LuGrain v. State, 479 N.W.2d 312, 315–16 (Iowa 1991) (rejecting inmate‘s due process challenge to a presumption that his refusal to supply a urine sample within two hours of an order for a random drug sample would be treated as a violation of prison policy where he was given the opportunity to rebut the presumption by providing evidence through a urine sample, distinguishing between irrebuttable presumptions, which violate an inmate‘s right to due process, and rebuttable presumptions, which don‘t); see also Todd v. Todd (In re Est. of Todd), 585 N.W.2d 273, 277 n.6 (Iowa 1998) (“Preponderance of the evidence is evidence that is more convincing than opposing evidence. Preponderance of the evidence does not depend upon the number of witnesses testifying on one side or the other.” (quoting Iowa State Bar Ass‘n, Iowa Civil Jury Instruction 100.3 (1986))).
West Vangen also characterizes the required financial affidavit as “lengthy” and points out that it must be completed under penalty of perjury. But she fails to identify how requiring the person who has sole access to the pertinent information to provide it in a sworn affidavit prevents her from meaningfully participating in the process. We reject West Vangen‘s facial challenges to the
IV.
Finally, we address West Vangen‘s argument that the sentencing judge impermissibly considered West Vangen‘s assertion of her right to demand a trial in
When the State made its sentencing recommendation, it argued West Vangen “had multiple opportunities to take responsibility and do the right thing. It took a day and a half of evidence and argument in the middle of a pandemic for the defendant to be brought to justice in this matter.” The judge sentenced West Vangen to thirty days in jail, suspended, explaining the reasons for the sentence included, inter alia, “the defendant‘s non-acceptance of responsibility in this case.” West Vangen argues the court‘s reliance on her refusal to take responsibility was a clear reference to the State‘s argument that West Vangen forced the State to prove her guilt at trial instead of pleading guilty.
The sentencing court has broad discretion to impose the sentence it determines is best suited to rehabilitate a defendant and protect society.
While lack of remorse is a valid consideration, a defendant‘s invocation of her right to put the state to its burden of proving the offense to a jury can be given no weight in determining a proper sentence. See State v. Nichols, 247 N.W.2d 249, 255 (Iowa 1976). Additionally, the sentencing court “must carefully avoid any suggestions in its comments at the sentencing stage that it was taking into account the fact defendant had not pleaded guilty but had put the prosecution to its proof.” Knight, 701 N.W.2d at 87 (quoting Nichols, 247 N.W.2d at 256).
That the State offered an improper basis for West Vangen‘s sentence does nоt mean the sentencing court took the State‘s bait. During her allocution, West Vangen told the district court: “So, yeah, like he said, I‘m going to file an appeal. I didn‘t do this. So I wouldn‘t be pressing the issue so much if I did it.” West Vangen certainly had the right to appeal her conviction, but in expressing her intent to do so she made clear she was not taking responsibility for the actions the jury
V.
For the foregoing reasons, we affirm West Vangen‘s conviction and sentence.
AFFIRMED.