State of Iowa v. Heather L. Swanson

IN THE COURT OF APPEALS OF IOWA

No. 21-0694
Filed March 30, 2022

STATE OF IOWA,
Plaintiff-Appellee,

vs.

HEATHER L. SWANSON,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Boone County, Stephen A. Owen,

District Associate Judge.

A defendant appeals her conviction for theft, contending there is insufficient

evidence she had the intent to permanently deprive the owner of their property.

AFFIRMED.

Martha J. Lucey, State Appellate Defender, and Ashley Stewart, Assistant

Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney

General, for appellee.

Considered by May, P.J., and Schumacher, J. and Doyle, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2022).
2

SCHUMACHER, Judge.

Heather Swanson appeals her conviction for theft in the third degree,

contending there is insufficient evidence she had the intent to permanently deprive

the owner of their property. We find substantial evidence supports the conviction.

Accordingly, we affirm.

I. Background Facts and Proceedings

A reasonable jury could find the following facts to support Swanson’s

conviction. Swanson was shopping at a retail store on April 19, 2020.1 John Smith,

an employee working as a loss prevention associate, was alerted to Swanson’s

presence. He began surveilling Swanson as she shopped. He observed Swanson

remove labels from clearance dairy items and place them on two items of meat.2

Swanson placed the labels on the meat while standing approximately halfway

down an aisle where no other shoppers were present.

Upon finishing her shopping, Swanson began scanning her items at a self-

checkout lane. A surveillance video introduced at trial showed Swanson as she

scanned her items. Testimony at trial indicated that when an item was properly

scanned, the item would show up on a display screen, the system would make an

audible beep, and the scanning light would turn from green to red. Swanson

denies knowledge of how the system worked, claiming she relied solely on the

auditory signal to determine when an item was scanned. During checkout,

Swanson failed to correctly scan several items, including a bag of chips, a pizza,

1 Swanson claims her long-time boyfriend was also present, although John Smith
testified he never saw the boyfriend.
2 Smith did not see Swanson place a clearance tag on a third item, which was

discovered after he compared her receipt to her items after checkout.
3

and dog treats. She also scanned the clearance dairy tags she affixed to the meat

rather than the proper bar codes. She rotated several other items in order to

properly scan them.

After finishing at the checkout, Swanson went to customer service.

Swanson claims she believed her total cost was below what she expected, so she

went to customer service to ask what to do. She further claims the customer

service employee told her she should go home and call back if she determined she

paid an incorrect amount.3

Smith stopped Swanson just before she exited the store and informed her

that they needed to discuss the items she failed to scan. After examining her

receipt and shopping cart, Smith determined Swanson’s total was about seventy

dollars below what it should have been. As a result, Smith contacted the local

police, who arrested Swanson. Swanson, who has significant health problems,

claims she was scanning items quickly because she did not feel well and wanted

to get home. She denied deliberately failing to scan items or placing different tags

on multiple items.

Swanson was charged with theft in the third degree by trial information on

May 28. She pled not guilty, and the case went to a jury trial on February 2, 2021.

During trial, Smith, Swanson, a police officer, and Swanson’s boyfriend testified.

After the close of the State’s evidence, Swanson moved for a judgment of acquittal,

which was denied. She renewed the motion after the close of all evidence, which

was also denied. Swanson was found guilty of third-degree theft, in violation of

3 No testimony was provided from a customer service representative at trial.
4

Iowa Code sections 714.1(4) and 714.2(3) (2020) on February 3, 2021.4 The court

sentenced Swanson to two years in prison, but suspended the sentence and

placed Swanson on probation. Swanson appeals.

II. Standard of Review

We review challenges to the sufficiency of evidence for correction of errors

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

has summarized our review:

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. We 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. (alteration in original) (internal citations and quotations omitted).

III. Discussion

Swanson claims that there is insufficient evidence to support her conviction.

In particular, she claims that there is insufficient evidence that she intended to

permanently deprive the retailer of their property. Swanson contends she believed

she was properly scanning her items, and only missed some items due to her lack

of knowledge of how the checkout system worked and the beeps coming from

nearby checkout counters. She also denies placing clearance tags on the items

of meat she scanned.

4Following the jury verdict for theft, a separate trial was conducted concerning an
enhancement due to two prior theft convictions.
5

“Specific intent is seldom capable of direct proof.” State v. Ernst, 954

N.W.2d 50, 55 (Iowa 2021) (quoting State v. Walker, 574 N.W.2d 280, 289 (Iowa

1998)). “Therefore, specific intent will often ‘be shown by circumstantial evidence

and reasonable inferences drawn from the evidence.’” Id. As the Ernst court

noted,

While other conflicting scenarios can be postulated, a court faced
with a record of historical facts that supports conflicting inferences
must presume—even if it does not affirmatively appear in the
record—that the trier of fact resolved any such conflicts in favor of
the prosecution, and must defer to that resolution.

Id. at 57-58 (quoting State v. Bentley, 757 N.W.2d 257, 263 (Iowa 2008)).

Swanson asserts the evidence presented is susceptible to two equally

plausible explanations: (1) she intended to steal the items by deliberately failing to

scan them, or (2) she simply did not understand how the machines worked and

believed she had paid for the items. She cites State v. Truesdell for the proposition

that “when two reasonable inferences can be drawn from a piece of evidence, we

believe such evidence only gives rise to a suspicion, and, without additional

evidence, is insufficient to support guilt.” 679 N.W.2d 611, 618-19 (Iowa 2004).

Thus, according to Swanson, there is insufficient evidence of her intent to steal the

items.

We readily distinguish the present case from Truesdell. First, Truesdell

relied on a single piece of evidence—the defendant was convicted of possession

of a precursor with intent to manufacture, and the inference of intent was based

solely on the possession of seventy boxes of pseudoephedrine. Id. at 614. Here,

there was eyewitness testimony of Swanson placing clearance dairy tags on meat

items, video of her failing to scan items, including times at which the bar code was
6

pointed upwards toward Swanson, and video of Swanson correctly scanning other

items after turning them around to enable the scanner to pick up the barcode.

Therefore, this is not a case where a single piece of evidence produced multiple

reasonable inferences.

When “[t]he success of [the defendant]’s claim at trial hinged on the facts

as viewed by the fact-finder . . . it is not for us to interfere with the finding made

when supported by substantial evidence, even though the evidence may have also

supported a finding favorable to the defendant.” Ernst, 954 N.W.2d at 58 (first and

second alterations in original) (quoting State v. Keeton, 710 N.W.2d 531, 535 (Iowa

2006)). Here, there is substantial evidence from which a jury could infer Swanson

had the requisite intent to permanently deprive the retailer of their property,

including Smith’s testimony that he saw Swanson place clearance dairy tags on

two meat items in an isolated aisle, her ability to properly scan many items at

checkout, the orientation of the items that improperly scanned, as well as the jury’s

power to weigh the credibility of witnesses. While the jury certainly could have

believed Swanson’s testimony, we will not second-guess their credibility

determinations in the face of substantial evidence supporting their conclusions.

Sufficient evidence exists in the record to support her conviction. Accordingly, we

affirm.

AFFIRMED.