IN THE COURT OF APPEALS OF IOWA
No. 16-0311
Filed December 21, 2016
STATE OF IOWA,
Plaintiff-Appellee,
vs.
DAVID RAYMOND FRITZ,
Defendant-Appellant.
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Appeal from the Iowa District Court for Monona County, Patrick H. Tott,
Judge.
Defendant appeals his convictions for criminal mischief in the fourth
degree. AFFIRMED.
Jason Gann of Moore, Heffernan, Moeller, Johnson & Meis, L.L.P., Sioux
City, for appellant.
Thomas J. Miller, Attorney General, and Benjamin Parrott, Assistant
Attorney General, for appellee.
Considered by Danilson, C.J., and Doyle and McDonald, JJ.
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MCDONALD, Judge.
David Fritz was charged by trial information with criminal mischief in the
second degree, in violation of Iowa Code sections 716.1 and 716.4 (2015),
arising out of an incident in which he allegedly threw a rock at and damaged a
passing car. A jury found Fritz guilty of the lesser-included offense of criminal
mischief in the fourth degree, in violation of Iowa Code sections 716.1 and 716.6,
and the district court entered judgment accordingly. Fritz raises several
challenges to his conviction.
The facts are not in great dispute. On May 26, 2015, James Remmick
was driving his vehicle on a gravel road near his home when he observed Fritz,
his neighbor, standing on the side of the road. James heard a loud noise that
sounded like hail. James stopped the car, believing Fritz had thrown rocks at
James’s vehicle. James called the sheriff. After James called the sheriff, James
saw Fritz attempting to kick rocks from the road back into the ditch. A deputy
sheriff arrived at the scene twenty minutes later. He observed fresh mud splatter
and chips in the paint and glass of the car. The deputy spoke with the defendant.
At trial, the deputy testified Fritz’s palms were clean but there was dirt between
his fingers. James had his car repaired. Of the total cost of repair, James was
required to pay only $500, which was the amount of the deductible on his
automobile insurance policy.
Fritz’s first claim of error is the district court erred in allowing certain
hearsay testimony. Specifically, the district court allowed James to testify he
paid $500 to repair the damage to his vehicle. Fritz claims James’s testimony
regarding the amount James paid to repair his vehicle is testimony regarding out-
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of-court nonverbal conduct. We review hearsay rulings for correction of errors at
law. See State v. Dullard, 668 N.W.2d 585, 589 (Iowa 2003).
We conclude the issue is not preserved for our review. Fritz’s counsel
successfully objected to the admission of two exhibits regarding the cost of repair
to James’s vehicle. However, James repeatedly testified, without objection, that
he paid $500 to have his vehicle repaired. Error cannot be predicated on a ruling
admitting evidence unless “a timely objection or motion to strike appears of
record.” Iowa R. Evid. 5.103(a)(1). There was none here. To the extent Fritz
argues James’s testimony that the total cost of the repairs was $1500 to $1700
was improper hearsay, the testimony regarding the amounts greater than $500
was nonprejudicial. The jury found damages between $200 and $500,
necessarily rejecting the testimony as to the larger amounts.
Fritz’s next claim of error is the district court erred in allowing Megan
Remmick, James’s wife, to testify as a rebuttal witness. Specifically, Megan was
called as a rebuttal witness after Fritz testified he had never had any
communications with the Remmicks. Megan testified Fritz had put his middle
fingers up at the Remmicks repeatedly and that Fritz screamed and cursed at her
on at least one occasion. We review rulings on the relevance of evidence for
abuse of discretion. See In re Det. of Williams, 628 N.W.2d 447, 456 (Iowa
2001).
We cannot conclude the district court abused its discretion in allowing the
rebuttal testimony. “It is proper for a party to contradict and discredit an adverse
witness by showing the facts to be other than as testified to by such witness.”
State v. Odem, 322 N.W.2d 43, 45 (Iowa 1982). “The subject of the inconsistent
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statement, if it is to be admissible, must be material and not collateral to the facts
of the case.” State v. Fowler, 248 N.W.2d 511, 520 (Iowa 1976). Here, the State
was required to prove Fritz acted with the specific intent to damage James’s
vehicle. See Iowa Code § 716.1; State v. Chang, 587 N.W.2d 459, 461 (Iowa
1998). Relevance is a low bar. See Iowa R. Evid. 5.401 (“‘Relevant evidence’
means evidence having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable
than it would be without the evidence.”); State v. Plaster, 424 N.W.2d 226, 229
(Iowa 1988) (“The test is ‘whether a reasonable person might believe the
probability of the truth of the consequential fact to be different if he knew of the
proffered evidence.’” (citation omitted)). Megan’s testimony clears the bar. Fritz
testified he had no communications with the Remmicks, which would lead the
jury to conclude he would have had no motive or intent to damage the vehicle.
Megan’s testimony demonstrates the facts were contrary to Fritz’s testimony.
Instead, her testimony showed a history of animosity probative of whether and
why Fritz might have wanted to damage James’s vehicle.
Finally, Fritz asserts there was not sufficient evidence to support his
conviction. We review challenges to the sufficiency of the evidence for errors at
law. See State v. Romer, 832 N.W.2d 169, 174 (Iowa 2013). “In reviewing
challenges to the sufficiency of the evidence supporting a guilty verdict, courts
must 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.” State v. Showens, 845 N.W.2d 436, 439–40 (Iowa 2014). The jury’s
verdict is binding on appeal unless there is an absence of substantial evidence to
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sustain it in the record. State v. Hennings, 791 N.W.2d 828, 832 (Iowa 2010),
overruled on other grounds by State v. Hill, 878 N.W.2d 269 (Iowa 2016).
Evidence is substantial if it would convince a rational trier of fact the defendant is
guilty beyond a reasonable doubt. See State v. Howse, 875 N.W.2d 684, 688
(Iowa 2016). The jury is free to make credibility determinations, weigh evidence,
and accept or reject any witness’s testimony as it sees fit. See State v.
Shanahan, 712 N.W.2d 121, 135 (Iowa 2006).
Considering the record evidence in the light most favorable to the State,
we find there was substantial evidence to support the jury’s verdict. James did
not see Fritz throw anything at the vehicle, but he heard a sound like hail hitting
his car. At the same time, Fritz was standing by the road. Fritz and the
Remmicks have a history of uncivil encounters. The sheriff’s deputy who
responded to the call observed mud splatter on the car and chips in the paint and
glass of the car. James said he did not see that damage to his car before leaving
his home that day. James testified it cost him $500 to repair the car. The jury
could infer from these facts that Fritz threw something at James’s vehicle. The
jury could further infer the costs of repair was $500. While Fritz’s denied the
allegations, the jury was free to reject his testimony. See id. We see no reason
to disturb the verdict. Accordingly, we affirm.
AFFIRMED.