State v. Kennedy
224 N.W.2d 223
Iowa
1974
Check Treatment

*1 informer, Burris. Defendant’s of the first to the court’s was directed to instruction Burris, assignment of error is untenable. applicable to make it also failure the informer. assigned II. Defendant’s second error mandatory prison “The asserts: sentence assignment Defendant’s first states: 204.401, by section required subsection two an is re- entrapment by informant “Where (2) unconstitutionally of Code denied duty as a it is the of upon lied defense hearing Appellant at sentencing effective entrap- of upon instruct issue court to creates an unreasonable and arbitrary and an informant ment as concerns offenses.” distinction between criminal is error.” so instruct argument As we understand his he con- de- disagreeing with while not State mandatory imprisonment provi- tends legal general statement of fendant’s effective of the statute denies assist- sion here, involved, as it did principles contends stage of at critical ance counsel a court, the evidence insuffi- in the trial proceedings prohibits in that the statute agent include Burris as an cient to regarding possible of factors consideration alleged en- participant or a in the officers a trial court is to probation which consider trapment. except all offenses crimes trea- presented virtually thus iden- The issue is son, murder and the statute here involved. Lamar, v. tical one resolved argues equal He further he was thus denied Iowa, sought where Lamar N.W.2d protection of the law. unsuccessfully entrapment to include in an fails to cite au Defendant’s brief “agents” a instruction reference of law thority supports assigned his second officers. enforcement compulsion error. are under no to re Lamar, 605, 606, say: pages we any assignment of view error when the jury must in- “It is axiomatic complaining party authority no in sup cites applicable law to facts structed argument. port assignment is evidence and shall be so supported Mattingly, Iowa, waived. v. deemed if evidence is admitted which instructed N.W.2d citations. supports some involved issue. See State judgment of af- McConnell, 178 N.W.2d 389-390 firmed. 1970). (Iowa Affirmed. “But the above noted standard comes only evidence is play into where relevant apparent the

produced which would make

materiality applicable of the law claimed Armstrong,

thereto. See State 1972); (Iowa Davis, (Iowa 410-411 Iowa, Appellee, STATE Law 1970); 23A Criminal 1313. C.J.S. means, a trial court not re-

“This jury issue quired to instruct KENNEDY, Appellant. Richard Dale evidentiary support in the which finds no No. 56458. record.” Supreme Court Iowa. By we review of the record entire Dec. the trial court’s agree with conclusion produce failed to sufficient evi jury question on de to establish dence entrapment by theory the use

fendant’s *2 Elderkin,

David A. Rapids, ap- for pellant. Turner, C. Atty. Gen.,

Richard Jim P. Robbins, Gen., Atty. Asst. and William G. Faches, County Linn Atty., appellee. Rap- MOORE, J., Heard before in Cedar C. MA- office and its through Company, UHLENHOPP, SON, wagon REYNOLDSON, station Plymouth Iowa, owned ids, Iowa, McCORMICK, County, JJ. in Linn registered employee, by Continental’s 1972,Continental Martin. A. James UHLENHOPP, Justice. Plymouth Avenue to First traded *3 time, according At Rapids. Cedar problems which involves appeal Martin, 100,- the car had been nearly driven charge tampering a during trial arose 000 miles. Plymouth First Avenue trans- odometer, an indict- a motor-vehicle Valley ferred car to Cedar Motors of 321.71(2) and under § misdemeanor able Rapids, Cedar which sold the car to defend- 1973: (16), Code Richard Kennedy ant Dale Rapids of Cedar mileage certified that the true on the knowingly tamper shall person 2. No unknown odometer alter, back, with, adjust, change, set dis- 99,123.8 paid read miles. Defendant $1000 fail to connect odometer or connect according signed the car applica- his vehicle, cause any motor a tion for title certificate. Some of the a an odometer of to occur to foregoing testimony indicates the transaction be- vehicle, as to reflect lower so a motor Valley tween Cedar and defendant occurred mileage by mileage the true 1972; July Valley’s Cedar odometer cer- motor vehicle. 31, 1972; tification was dated but de- fendant’s title certificate was dated August person pro- who violates the Any 24, 1972. Defendant’s title certificate recit- be punished this section shall visions of “Mileage ed, UNK.” four a not less than hundred fine of than one thousand not more dollars and September 6, 1972, About defendant sold imprisonment county dollars or Marshall, car for John T. $1800 ninety jail period for a exceed employee Rapids. plant In con- such both fine and days, punished sale, with that nection defendant certified imprisonment. that the true on the car was own, But for reasons miles. defend- 321.71(8), revised, Under since § certify reading. did odometer ant of a motor transferor vehicle provide must However, the odometer in fact read about signed transferee with a certification of 51,500 miles, which orally as- reading. transferee’s Copies sured Marshall was correct. title mileage. new certificate shows that appended. two odometer are certifications recited, “Mileage title certificate Code Marshall’s jury. waived parties 51547,” fol- that the find the stated car was encum- 780.23. Oil Continental to Marshall’s credit union. bered evidence. lowing from the *4 The Linn County attorney charged At the de- conclusion evidence, defend- fendant with tampering ant with an moved for odometer. dismissal of charge. At trial the State trial court introduced evidence overruled the motion. the matters we related, have The trial court found including cop- guilty defendant significant ies of the and sentenced him. appealed. Defendant documents: the title certificates and odometer certifications kept In this court urges defendant in the Linn County treasurer’s office. De- trial court erred in overruling (1) objec- objected fendant to the introduction of (2) tions to the documents and his motion to those documents but the trial court over- dismiss. objections. ruled the Defendant did not Rulings I. duplicates Evidence. The introduce any evidence. of the title certificates and odometer certi- county by the cate were identified trea- itself constitutes evidence of fications title. surer as witness at the trial. The docu- Farmers Dairy Coop. Butter & v. Farm purported to relate to the ments Co., Bureau Mut. Ins. 196 N.W.2d 533 question Kennedy, and to Richard Dale (Iowa); State Farm Mutual Automobile objected to them on two Wyant, Ins. Co. (Iowa); grounds: insufficient foundation Cannon, (Iowa). Stam 176 N.W.2d 794 hearsay. offering the title here, certificates the State endeavoring prove was the certificates objection of founda

An insufficient themselves. Hence the certificates were sufficiently specific. is not State tion Ostrand, hearsay. Buckner, N.W.2d (Iowa); 214 N.W.2d 164 (Iowa); 31A C.J.S. Evidence Buchanan, 260 at (Iowa). 680; 29 Am.Jur.2d Evidence § 859 at transcript, however, examined the have apprise found that defendant did have But the odometer certifications are dif- thought he court of the reason trying ferent. The was to prove foundation insufficient: the State had 99,000 was about when defend- Kennedy” the “Richard Dale named shown bought ant the car and about a short same documents individual in the time later when he sold it. The State of- Assuming arguendo that as defendant. fered the two odometer certifications to made, objection good when this prove those mileages. Since the odometer up the documents show connected certifications were offered to prove the *5 ing by the witness Marshall that defendant mileages them, truth of in stated they in the individual involved the transac were hearsay. Miller, v. 204 N.W.2d involving this vehicle. tions See McCor (Iowa). they 834 Were within exception an (2d ed.) Evidence, (con mick, 58 at 134 § hearsay to the rule? showing fact); necting up by missing 53 (discretion Trial 116 at 103 of § Am.Jur. Defendant’s own odometer certifi evidence). of no as to order Hence court cation was an admission and therefore juncture. at appears error this exception party’s within the for a own objection, we statements. 29 Am.Jur.2d 600 hearsay to Evidence § As 655; at 31A C.J.S. Evidence 272 at 696. (a) § certificates and consider the title must Valley odometer By Motors’ certification certifications. offer (b) the odometer to defendant was admissible an certificates, try as admis ing the State was the title regarding by sion the car defendant’s approximately ing prove that from to recognize 1972, predecessor in title. doc defendant owned early September, to statutes, title, privies trine of admissions es ordinarily no our the car. Under Evidence, Wigmore, ownership poused § “ex IV 1080 at of a car acquire can person (3d ed.). Egan Egan, 134-139 v. See 212 of of title issued cept by virtue a certificate (Iowa). applies 461 by N.W.2d doctrine to assigned for such vehicle or to him or as personal property realty. as well importer’s 29 or of a manufacturer’s virtue 727; .2d Evidence 673 at 31A § to Am.Jur him for such vehi certificate delivered 819, 825; at 329 cle;” any § § at or C.J.S. Evidence 324 at “no court case law Wigmore, title, supra, 1083 at 155. It right, includes recognize § claim equity shall regard “in matter con vehi admissions any person of or or interest or use cerning physical condition disposed or subject registration sold cle Phillips . encumbered, property Laughlin, . . of, unless evi mortgaged or or 26, 64, 35, Liberty 99 Me. 58 67. See also A. by certificate of title or manufac denced National Bank & Trust Co. Merchant’s & importer’s duly issued or certificate turer’s Co., 184, 307 Ky. Manufacturer’s Paint 209 provi assigned in accordance or 828; 1973, 29 Am.Jur.2d Evidence 672 § S.W.2d chapter Code sions this [321].” properly Thus the trial at 725-726. 321.45(2) (2)(d). the title Thus certifi- 228 evidentiary objec- g.

overruled car when the offense defendant’s occurred. E. Forbath, People 767, tions. Cal.App.2d Supp. 42 P.2d 108 (parking); People v. Hilde try II. Motion to do not Dismiss. We brandt, 397, 126 308 N.Y. (speed N.E.2d 377 Rather, the case we decide whether anew. ing). But see City Kirk, of Portland v. generated the evidence a fact issue for the (ordinance 665 (Or.App.) P.2d made owner finder, fact in this case was the responsible facie for prima parking viola court. Rubin, tion); People v. N.Y. course, question, (parking). N.E.2d 501 whether defendant could be convicted of appear These cases do point. to be in present some on the other offense may A well have been driven some- ed, he whether could be convicted other than when speeding one the owner Basically, this offense. defendant asserts occurred, illegal parking but the owner him- grounds two motion to dismiss: in likely self is to be one who changed his sufficiency generate evidence to changed jury odometer or had it so a —or (a) knowing fact issue on commission reasonably could A find. case of that kind alleged (b) offense and v. Anonymous, 6 Conn.Cir. passing sufficiency venue. In on the A.2d There odometer showed evidence, “we view the light record in the 76,000 miles acquired when the defendant most favorable to the accept state and as August car in 38,- June. In it showed established all reasonable inferences tend 000 miles. On 1 a October law became ing support jury. action of the making effective an tampering doing so we consider only support need On offense. December when the de- ing evidence, whether contradicted not.” car, fendant still owned the the odometer Bizzett, showed miles. court held that (Iowa). Graham, also See the fact finder reasonably infer the (Iowa). N.W.2d 258 A may inferred defendant “turned back odometer from evidence, from circumstantial which indeed *6 76,000 38,000 miles to miles between June may powerful proof. Where circumstan August,” and but held substantial evidence tial evidence alone relied on to establish appear did not the defendant turned back guilt, “the entirely circumstances must be the after odometer October when the law guilt, consistent wholly with defendant’s in against tampering went into effect. hypothesis consistent with rational innocence, his and convincing so as to ex present In the the tampering case Iowa clude reasonable doubt that defendant during law was in effect the period entire was guilty charged. of the offense Like ownership defendant’s of the car. The direct evidence it must raise a fair infer July evidence shows August that the ence guilt, generate something more mileage 99,000 odometer was about and suspicion, speculation conjecture.” early September it 51,500. that was about Reeves, (Iowa). case, the As in Connecticut the fact finder reasonably could infer that defendant (a) question On the of whether the changed mileage the or caused it to be jury reasonably could find defendant know changed; and if fact finder inferred ingly changed mileage, the odometer so, that defendant did it could infer he must parties moving cite on parking cases and doing. have known what he was only violations in proof which the intro duced, in case addition evidence of viola however contains corroborative itself, present tion was that not in the defendant owned Connecticut case, bearing the car. of these that knowledge Some cases hold such on both and tam- insufficient, pering. evidence is July Valley since someone other On Cedar may possession than defendant have had certified to defendant the odometer mileage unreasonable, 99,123.8 true find inference to be and the mileage was following, September First, two reasons. Valley Cedar was “unknown.” certified orally to Marshall represented mileage on 1972. Marshall defendant the “true” certification that bought written September the car on some 51,500. How approximately mileage was days later. The trial court could find the face of represent so could defendant inference unreasonable that the car was to him? Valley’s certification 52,500 days miles in those 37 or an rep- find that defendant’s could trial court average of per day. about 1418 miles Here was bald lies. were resentations Second, again inconsistency we have an knowledge. guilty with what defendant said to Marshall. Un- der the inference urges, defendant the actu- Moreover, find that the trial could mileage al 151,500, the car would be not him position requiring in a what defendant assured the lies. Marshall. The tri- odometer match change the reject al court represent to Marshall could alternative infer- could Defendant urges. mileage ences defendant was about true that the 99,000 showing on a car with about deliver do find merit in ground the first generated The evidence the odometer. of defendant’s motion to dismiss. com- on whether defendant question charged. the offense mitted (b) venue, As to all parties in certainly find could trial court volved this car were located in Linn during changed mileage odometer County, including during defendant himself the car. Defendant had period defendant ownership of the car. The car was just as are other inferences contends that titled there and the transactions with re that defendant as the inference reasonable spect it county. occurred in that it mileage or had changed the odometer jury reasonably infer that the may change argues that the changed. He tampering County. offense occurred in Linn But mechanical failure. resulted from have Tilley, (Iowa). N.W.2d 843 told square with what he this does not forgery, That case involved another offense assured Marshall Marshall. He ordinarily secret, which is committed mileage mileage was actual proof this court held the of venue sufficient mileage if the odometer the car. But forged without direct evidence. The check failure, because of mechanical was incorrect written on a bank county located in the would not be then the odometer forum, apparent drawer did busi- testified, “I asked mileage. Marshall actual bank, at that payee ness and the resided in original mileage; my reason *7 was the if this county. This quot- that court relied on and I that even the doing so was believed for Britton, from United States v. 24 ed F.Cas. 51,000 car on it at the time that the had 1239, (No. 14,650). pp. Story 1241 Justice car; two-year high for a old was a little stated: there say this actual Kennedy did was the Mr. added.) (Italics A car.” mileage on the forged If a instrument or ut- is found may have hon- contention that place, in one and there is no evi- tered mile- estly thought that this was the actual show, to forged dence it else- that was Valley’s is belied age on where, ground presume, what to is there the true to defendant certification forged, it was not where it was was and that odome- mileage unknown found, or in a uttered? If its existence 99,123.8. mileage was ter forged proved any state is not in other must, necessity place, it from the argues also that the inference Defendant case, presumed forged, been to have actually driven the car was is reasonable its state first 51,500 where existence such is during the to from around If the law made known. ... were Again the court could had it. time he 230 lars

otherwise, impossible almost and not more than one it would be thousand dol- imprisonment any person forgery, lars or county jail convict such to period for a not to ninety days, in retirement and conceal- exceed acts are done punished by both ment, imprison- such fine and sight persons of all far from ment.” guilt. confederates legislative plan obviously de- was language equally appropriate to punish signed to an owner who in transfer- tampering. The offense of ing the required vehicle falsified the odome- generate question fact sufficient where ter statement evidence of odometer venue. tampering was non-existent. But for some appears. No error inexplicable ig- reason the State chose Affirmed. nore the offense on which it had over- whelming proof 321.71(8)] pursue [§ except concur All Justices REYNOLD- charge 321.71(2)]for which there [§ SON, J., who dissents. proof even corpus delicti. I. This conviction must be reviewed REYNOLDSON, (dissenting). Justice with certain principles fundamental relating legislation The 1971 to odometers mind. pertinently provides: Criminal strictly statutes are construed requirements. “321.71 Odometer against State, and the State has

[*] [*] [*] [*] [*] [*] burden proving every element essential to constitute charged. crime “(2) tamper person knowingly No shall Hansen, 147, 145, 244 Iowa 55 N.W.2d with, alter, back, change, adjust, set dis- (1952); 924 Banks, see State v. 213 N.W.2d or fail to connect the connect odometer of (Iowa 1973). vehicle, any motor or cause foregoing to occur to an odometer of a protects Due Process Clause an ac vehicle, so to reflect motor as a lower against except cused upon proof conviction mileage mileage true beyond a every reasonable doubt the motor vehicle. necessary to constitute the crime with edge on true best belief. mileage. buyer which shall state that to the odometer at the time of transfer and vehicle “(8) the the [*] [*] * * * knowledge the a statement motor statement and he shall state the * * * * is not the true shall [*] [*] If the transferor has knowl- * * to vehicle, set mileage [*] his best [*] transferor signed by forth the shall belief he shall so indicate [*] [*] provide knowledge shown on the it the transfer- transferor’s [*] [*] is the true mileage traveled motor [*] [*] (Iowa 1972); committed the concept a conviction (1968); U.S. element of a shifted to State, which he is U.S. Basic to F.2d *8 corpus the 358, 364, 217 (1970); (Iowa 1973). particular 111 Cir. Dunn, our an accused. N.W.2d 89 S.Ct. delicti has been established— (8 charged. criminal charged someone. See S.Ct. Vietor, supra. crime 1968); 613, will stand 483, 21 Proof of an essential jurisprudence Cristani, crime Vietor, Stump has actually 616 re cert. 104, (Iowa 1974); Winship, L.Ed.2d 466 may Furgison only denied, 25 L.Ed.2d 192 Iowa Bennett, 108-109 not be where been v. “(16) 615, Any person provi- who violates the 616-617, 111, (1921); 185 N.W. 112 of punished by sions this section shall be Millmeier, 698, v. 692, State 102 Iowa 72 fine a of not less than (1897). four hundred dol- 277 N.W.

231 majori dubious inferences the these bolster circum where case Finally, a criminal unsupported ty creates another inference prove relied on to alone is evidence stantial by the evidence—that defendant made the of elements of the essential more any one or alleged mileage misrepresentations to the entirely must be evidence the crime the buyer high the odometer stood at the while whol guilt and defendant’s with consistent motivating reading, thus er defendant to hypothesis any rational with inconsistent ly resting This tamper with it. of then infer convincing and so innocence of defendant’s impermissible, not only on inference is ence that de doubt a reasonable to exclude as Leib, 1315, 1322, v. 198 Iowa 201 N.W. offense State of innocent was fendant (1924), attempts it 32 to create an un Jellema, 206 N.W.2d charged. State Williams, presumption arising of warranted out vehi 179 1973); (Iowa State ownership and endow it with more 1970); cle v. De (Iowa State 756, weight of presumption than innocence. 1969). (Iowa Raad, 164 N.W.2d Priebe, State Iowa See judice, sub Turning to the situation II. (1924). N.W. never established apparent it is anyone proved never it corpus delicti: infrequently It true the cre- legislature tampered unknowingly) (or even knowingly permissible applicable ates inferences when defend- changed the odometer or established, are certain facts but these are Assuming as a vehicle. ant’s subject judicial scrutiny light to careful reading defend- when lower process, a due guarantees jury, had of of when he it had than sold the vehicle ant protection against being the constitutional entirely clear condition it—a acquired compelled testify, presumption nothing to show the record—there from innocence, requirement proof and the a defect or mal- was not the result this beyond reasonable doubt. State v. Han- a per- aof the intervention function or sen, (Iowa 1972). N.W.2d 216 Here the lower read- necessary produce a was son legislature attempt made no to create evidence is total void ing. There problem It avoided the ma- inference. odometer, although the ve- concerning this separate jority by creating a of- embraces easily as the available apparently hicle meet the fense tailored to lack of evi- owner at trial. then produced the tampered the odometer was with or dence changed. manually taking judicial authority for I find no complexities of an mechanical notice respectfully I submit we should elect State, here, odometer, does below nor restraint, legislature’s exercise rather to be taken. judicial notice request unsupported rely on an dictum from sustaining jurisdic- the State’s difficulty of another an intermediate argument from its “no apparent impliedly create inferences which position is tion to appears parameters in the record would test of historic constitution- malfunction occurred. defect or suggest safeguards. al that such defect or it be inferred Thus must I would reverse. Appellee’s occur.” did not malfunction attempt impose brief, p. 11. negate burden to existence delicti demonstrates es- corpus cause. of the State’s weakness

sential necessarily majority opinion in-

III. The only person change the odome-

fers occurred,

ter, no defect malfunction the vehicle owner he

because defendant *9 effort offense. an

committed