IN THE COURT OF APPEALS OF IOWA No. 19

- 0327 Filed February 5, 2020
STATE OF IOWA, Plaintiff

- Appellee,

vs. VALENTINO E. WHITAKER , Defendant

- Appellant.

________________________________________________________________ Appeal from the Iowa District Court for Carroll County, Joseph B. McCarville , District Associate Judge.

Valentino Whitaker appeals his conviction and sentence for third

- degree theft. AF FIRMED.

Kevin Hobbs , West Des Moines , for appellant. Thomas J. Miller, Attorney General, and Bridget A. Chambers , Assistant Attorney General, for appellee.

Considered by Doyle, P.J. , and Tabor and Schumacher, JJ.2

DOYLE , Presiding Judge

. Valentino Whitaker appeals his conviction and sentence after a jury found him guilty of third

- degree theft. He raises three claims on appeal. First, he challenges the sufficiency of the evidence supporting his conviction. Next, Whitaker contends he received ineff ective assistance of trial counsel. 1 Finally, Whitaker challenges the portion of the sentencing order requiring him to pay $5000 in victim restitution. I. Sufficiency of the Evidence. We review claims about the sufficiency of the evidence for correction of errors at law. See State v. Huser , 894 N.W.2d 472, 490 (Iowa 2017). We consider the record evidence in the light most favorable to the State, including all reasonable inferences that a fact finder may dr aw from the evidence. See id

. We uphold the trial court’s denial of a motion for judgment of acquittal if substantial evidence supports the conviction. See State v. Harris , 891 N.W.2d 182, 186 (Iowa 2017). “Evidence is substantial if it would convince a rational trier of fact the defendant is guilty beyond a reasonable doubt.” Id

. Evidence is not substantial if it raises only suspicion, speculation, or conjecture. See Huser , 894 N.W.2d at 490. The trial court instructed the jury that to find Whitake r guilty of theft, the State had to prove Whitaker took possession or control of property that belonged to another with the intent to deprive the owner of the property. See Iowa Code

1 Although a recent amendment to Iow a Code section 814.7 prohibits considerati on of ineffective

- assistance

- of

- counsel claims on direct appeal , it does not apply to cases pending on July 1, 2019

. See State v. Macke , 933 N.W.2d 226, 235 (Iowa 2019). Because Whitaker’s appeal was filed before July 1, 2019, we may address his ineffective

- as sistance claims.3

§ 714.1 (2018). The State alleged that Whitaker took a purse belonging to Linda Beam, which Beam had inadvertently left in a shopping cart after shopping at Walmart. The purse held $5000 in cash. Whitaker challenges the evidence showing he ever possessed Beam’s purse or the cash inside it. Substantial evidence supports t he finding that Whitaker took Beam’s purse. The store’s surveillance video shows Whitaker taking a cart from the cart return and pushing it to his vehicle. Beam’s purse is visible inside the cart while Whitaker is pushing it. Although the video does not show Whitaker placing the purse inside the vehicle, it does show the vehicle’s door open and the cart nearby. The purse was not in the cart when an employee later returned it to the store, and no one returned it to the store or recovered it during a sear ch of the premises. Whitaker testified that he took the cart to hide the fact he had urinated in his pants and never saw the purse inside, but the jury was free to reject his claim. Because sufficient evidence allow s a fact finder to infer that Whitaker took Beam’s purse, we affirm the denial of Whitaker’s motion for judgment of acquittal. II. Ineffective Assistance of Counsel. We next turn to Whitaker’s claims of ineffective assistance of counsel, which we review de novo. See Lamasters v. State , 821 N.W.2d 856, 862 (Iowa 2012). To succeed, Whitaker must show counsel breached a duty and prejudice resulted. See State v. Graves , 668 N.W.2d 860, 869 (Iowa 2003). Counsel breaches a duty if counsel’s performance is not objectively reasonable. See State v. Ortiz , 905 N.W.2d 174, 183 (Iowa 2017). Whitaker first alleges his trial counsel was ineffective in cross

- examining a State witness about the surveillance videos. He alleges his counsel was ill

-4

prepared and “appear[ed] to struggle in his own unders tanding of the various Walmart camera view s and what the various Walmart videos showed.” He claims he was prejudiced because the State’s case largely rested on the video evidence, which he argues “could have easily been challenged.” But the State notes t hat Whitaker identifies no particular questions counsel failed to ask. Because the record is inadequate to resolve this claim on direct appeal, we must preserve it for a postconviction

- relief proceeding. See State v. Johnson , 784 N.W.2d 192, 198 (Iowa 20 10) (stating that if a defendant wishes to have an ineffective

- assistance claim resolved on direct appeal but the record is inadequate, “ the court must preserve it for a postconviction

- relief proceeding, regardless of the court ’ s view of the potential viab ility of the claim ”). Whitaker also alleges his trial counsel was ineffective in his handling of the State’s question about his prior felony convictions. When questioned by the prosecutor, Whitaker admitted he was a convicted felon. The prosecutor then asked how many felony convictions he had and Whitaker answered, “Three all ran into one.” If a criminal defendant testifies, the State may attack the defendant’s character for truthfulness with evidence of a criminal conviction if the probative value of t he evidence outweighs its prejudicial effect. See Iowa R. of Evid. 5.609(a)(1)(B). But if more than ten years have passed since the defendant’s conviction or release from confinement, the evidence is admissible only if its probative value substantially o utweighs its prejudicial effect and the State gives written notice of its intent to use it. Iowa R. Evid. 5.609(b)(1). Whitaker argues the court abused its discretion by allowing the State to ask about if he was a felon because his convictions were more than ten years old and the testimony was both5

prejudicial and irrelevant. 2 Whitaker claims his trial counsel was ineffective by failing to move for mistrial on this basis. The State concedes that “it appears that evidence of [one of the felonies] would n ot have been admitted if counsel had not agreed that the prosecution could impeach Whitaker with that conviction.” There is nothing in the record before us concerning the other two felony convictions. Because the record about Whitaker’s felony conviction s is lacking , we also preserve this issue for a postconviction

- relief proceeding

. III. Victim Restitution. Finally, Whitaker contends the district court erred by ordering him to pay $5000 in victim restitution. He argues the State failed to show suffi cient evidence that Beam was carrying $5000 in her purse when Whitaker took it

. We review challenges to the evidence supporting victim restitution for correction of errors at law. See State v. Hagen , 840 N.W.2d 140, 144 (Iowa 2013).
T he district court ’s fact findings are binding if they are supported by substantial evidence. See State v. Shears , 920 N.W.2d 527, 530 (Iowa 2018). When the record contains a reasonable basis from which the court can infer the amount of restitution, we afford the district court broad discretion in determining that amount. See id. The State charged Whitaker with second

- degree theft for taking property that exceeded $1000 in value but did not exceed $10,000. The jury convicted Whitaker of the lesser

- included charge of t hird

- degree theft, finding Whitaker took

2 We note that Whitaker’s counsel informed the court he did not object to the State asking if Whitaker had a felony conviction ; his counsel only objected to the State asking which charges led to a conviction

.6

property valued at more than $500 but not more than $1000. But that does not limit the amount of victim restitution to $1000. See State v. Holmberg , 449 N.W.2d 376, 377 (Iowa 1989) (noting the amount of restitution ordered is not limited by the parameters of the offense to which a defendant pleads guilty). The statute instead allows the court to order restitution if the State proves by a preponderan ce of the evidence a causal connection between the defendant’s criminal act and the damages

. See id. The evidence here supports a finding that Beam lost $5000 due to Whitaker’s criminal act. Both Beam and her husband testified under oath that Bean was carrying at least $5000 in cash in her purse when it Whitaker took it , and their bank statements support their claim. The trial court found a preponderance of the evidence supported a finding that they incurred a $5000 loss. Based on the evidence , the co urt was within its discretion in so finding, and we affirm the order requiring Whitaker to pay $5000 in victim restitution.
AFFIRMED.