Summary
allowing opinion testimony defendant was pictured in ATM photographs at time thefts occurred
Summary of this case from State v. JurgenaOpinion
No. 4-493 / 03-1367.
Filed August 11, 2004
Appeal from the Iowa District Court for Greene County, Ronald H. Schechtman (Trial) and Gary L. McMinimee (Sentencing), Judges.
Defendant appeals her conviction and sentence for the unlawful use of a credit card. AFFIRMED.
Brian Earley of Earley Law Office, Montezuma, for appellant.
Thomas J. Miller, Attorney General, Sharon Hall, Assistant Attorney General, and Nicola Martino, County Attorney, for appellee.
Considered by Sackett, C.J., and Vogel and Zimmer, JJ.
On August 25, 2001, Andrew Krieger hired two dancers for a bachelor party he hosted for his brother. Prior to the party, Krieger had placed his debit card and personal identification number on his bedroom dresser or in one of its drawers. The dancers used his bedroom to change their clothes. The day after the party Krieger went out of town until September 10. Upon his return home, Krieger noticed numerous overdraft charges on his bank account and reported the debit card stolen.
During the investigation, Officer Brian Towns obtained ATM photographs of Krieger's debit card being used. During trial, the following exchange took place between the prosecutor and Officer Towns:
Q. Okay. Prior to seeing those photographs, were you familiar with the defendant, Tracy R. Ely? Did you know who she was?
A. Yes, I did.
Q. And when you saw those photographs, were you able to recognize the individual in those photographs?
A. The photographs, when it was showed to me, I recognized them — the individual in there to be Tracy.
No objection was lodged to this testimony. However, defense counsel did object to the following question to Officer Towns as being irrelevant and invading the province of the jury:
Q. And in your opinion is the individual shown in those photographs 4A, B, C, D and E, is she or is she not the defendant, Tracy?
The district court overruled the objection, allowing Officer Towns to answer, "In my opinion, yes, it is." The jury subsequently found Ely guilty of the unlawful use of a credit card pursuant to Iowa Code section 715A.6 (2001). The district court denied Ely's motion for new trial and she now appeals.
The admissibility of opinion evidence falls squarely within the trial court's sound discretion. State v. Myers, 382 N.W.2d 91, 93 (Iowa 1986). Reversal is justified only when that discretion is abused; that is, when the court's decision rests on clearly untenable grounds. Id.
Iowa Rule of Evidence 5.704 permits otherwise admissible opinion testimony even though "it embraces an ultimate issue to be decided by the trier of fact." Iowa R. Evid. 5.704; see also State v. Murphy, 451 N.W.2d 154, 156 (Iowa 1990). However, a witness may not express an opinion on the defendant's guilt or innocence. Myers, 382 N.W.2d at 97.
The objected to portion of Officer Towns' opinion went to the question of who was in the ATM photographs not to whether Ely was guilty of committing a crime. This opinion testimony was proper. See generally State v. Smith, 522 N.W.2d 591, 594 (Iowa 1994) (allowing opinion testimony on one element of the crime); Murphy, 451 N.W.2d at 156 (allowing opinion testimony that OWI defendant was intoxicated); State v. Dinkins, 553 N.W.2d 339, 324 (Iowa Ct.App. 1996) (allowing opinion testimony regarding the specific conduct of defendant being similar to the conduct of one engaged in selling drugs). Further, because Officer Towns' earlier testimony was admitted without objection and identified Ely as the person in the photographs, even without the subsequent objected to testimony, there was substantial evidence in the record to support the conviction. See State v. Williams, 574 N.W.2d 293, 298 (Iowa 1998) (stating that when evidence is merely cumulative, it cannot be said to injuriously affect the complaining party's rights).
Because Officer Towns' testimony was proper and did not invade the province of the jury, we find no abuse of the district court's discretion and affirm Ely's conviction and sentence.