IN THE COURT OF APPEALS OF IOWA

No. 18-1946

Filed January 23, 2020

STATE OF IOWA,

Plaintiff-Appellee,

vs.

ERWIN KING,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Scott County, Stuart P. Werling, 

Judge.

Erwin King appeals his conviction for second-degree theft. REVERSED 

AND REMANDED.

Lauren M. Phelps, Hudson, Florida, for appellant.

Thomas J. Miller, Attorney General, and Thomas J. Ogden, Assistant 

Attorney General, for appellee.

Considered by Bower, C.J., and May and Greer, JJ.
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MAY, Judge.

Erwin King appeals from his conviction of second-degree theft. King brings 

six claims. We address two and remand for new trial.

We first address King’s challenge to the sufficiency of the evidence. He 

contends the district court erred in denying his motion for judgment of acquittal. 

We review challenges to the sufficiency of the evidence for corrections of errors at 

law. State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012). 

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.” “[W]e 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. (citations omitted).

“Where, as here, the jury was instructed without objection, the jury 

instruction becomes law of the case for the purposes of reviewing the sufficiency

of the evidence.”1 State v. Banes, 910 N.W.2d 634, 639 (Iowa Ct. App. 2018)

(citing State v. Canal, 773 N.W.2d 528, 530 (Iowa 2009) (“[Defendant] did not 

object to the instructions given to the jury at trial. Therefore, the jury instructions

 

1 King did not object to instruction twelve, the theft marshalling instruction. He did 

object to a portion of instruction thirteen providing, “knowledge can . . . be inferred 

from a defendant’s unexplained possession of an item or items that were recently 

stolen.” 
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become the law of the case for purposes of our review of the record for sufficiency

of the evidence.”)). The jury was instructed:

Under Count 1 the State must prove all of the following elements of 

Theft:

1. On or about the 11th day of June, 2017, the defendant 

exercised control over stolen property.

2. The defendant knew such property was stolen[.]

3. The defendant did not intend to promptly return the stolen 

property to the owner or to deliver it to an appropriate public officer.

King’s sole complaint is that he was incapable of forming specific intent 

because of various mental disabilities. However, he does not clarify which of the 

three elements of theft could not be satisfied because of his alleged disability. And 

our supreme court has made clear that theft by control “does not require proof of 

specific intent.” State v. McVey, 376 N.W.2d 585, 586 (Iowa 1985); see also State 

v. Smith, No. 05-2072, 2006 WL 3018132, at *6 (Iowa Ct. App. Oct. 25, 2006), 

vacated on other grounds 739 N.W.2d 289 (Iowa 2007). Nor does element two, 

the requirement that King knew the property was stolen. See State v. Buchanan, 

549 N.W.2d 291, 294 (Iowa 1996) (stating the requirement that a defendant act 

“knowingly” does not implicate specific intent). 

We acknowledge element three requires evidence King did not intend to 

promptly return the stolen property. But there was evidence to satisfy this element. 

King was accused of stealing Cricket Wireless phones. Shortly after the phones 

were stolen, King pawned them. From this, a jury could rightly infer King did not 

intend to promptly return them. Cf. State v. Walker, 574 N.W.2d 280, 289 (Iowa 

1998) (noting intent “may be shown by circumstantial evidence and the reasonable 

inferences drawn from that evidence”). The district court correctly denied King’s 

motion for judgment of acquittal.
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King also alleges the district court failed to obtain a proper waiver of the

right to counsel. The State agrees, as do we. 

A defendant’s waiver of counsel must be voluntary, knowing, and intelligent. 

Faretta v. California, 422 U.S. 806, 835 (1975); State v. Stephenson, 608 N.W.2d 

778, 782 (Iowa 2000). “The Supreme Court has imposed ‘rigorous restrictions on 

the information that must be conveyed to a defendant, and the procedures that 

must be observed, before permitting a waiver of the right to counsel at trial.’” State 

v. Cooley, 608 N.W.2d 9, 14–15 (Iowa 2000) (citation omitted). “A searching or 

formal inquiry is among the procedures required before an accused’s waiver of 

counsel may be accepted.” Id. at 15. The “trial court has an absolute duty” to 

complete this inquiry on the record. Stephenson, 608 N.W.2d at 782. 

Here, the State properly concedes it cannot produce a record that the 

required inquiry was made. See id. (“[T]he burden of proving a valid waiver lies 

with the State.”); Cooley, 608 N.W.2d at 14 (requiring the State to offer evidence 

of an adequate colloquy). So the State properly concedes King’s conviction must 

be reversed. We agree. We reverse and remand for new trial. In light of this 

disposition, we need not address King’s other claims.

REVERSED AND REMANDED.