Opinion
No. 3-509 / 02-1106
Filed September 24, 2003
Appeal from the Iowa District Court for Bremer County, John S. Mackey, Judge.
Mosley appeals his conviction for second-degree burglary. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Dennis D. Hendrickson, Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Mary E. Tabor, Assistant Attorney General, and Kasey E. Wadding, County Attorney, for appellee.
Heard by Huitink, P.J., and Vaitheswaran and Eisenhauer, JJ.
Deon Mosley was seen in a darkened elementary school classroom with his hands on the purse of a substitute teacher. The State charged him with second-degree burglary. Iowa Code §§ 713.1, .5 (2001). Mosley challenged the State's case, arguing the classroom did not meet the "not being open to the public" element of Iowa Code section 713.1. The district court rejected the argument and found him guilty as charged.
Burglary occurs when a person "having the intent to commit a felony, assault or theft therein, who, having no right, license or privilege to do so, enters an occupied structure, such occupied structure not being open to the public. . . ." Iowa Code § 713.1 (emphasis added).
On appeal, Mosley raises the same challenge. Our review is for errors at law. State v. Lewis, 514 N.W.2d 63, 65 (Iowa 1994). We will uphold the conviction if it is supported by substantial evidence. State v. Lambert, 612 N.W.2d 810, 813 (Iowa 2000).
Public occupied structures may have areas that are not "open to the public." See State v. Chambers, 529 N.W.2d 617, 621 (Iowa Ct.App. 1994) (affirming burglary conviction where defendant stole money from private office in public building); Baileyv. State, 493 N.W.2d 419, 422 (Iowa Ct.App. 1992), overruled on other grounds by State v. O'Shea, 634 N.W.2d 150 (Iowa Ct.App. 1992) (affirming burglary conviction where defendant stole money and lottery tickets from private office in public truck stop). There is substantial evidence to establish that Mosley entered such an area.
The parties do not dispute that the school building was an occupied structure. See Iowa Code § 702.12 (defining the term).
Notices posted on entrances to the school required visitors to report to the main office. Cf. Chambers, 529 N.W.2d at 621 (noting sign on door leading to private office warned "Authorized Personnel Only"). Mosley did not do so. Instead, he proceeded directly to classroom 115, where he was stopped by a teacher, who then escorted him to the main office. At the office, Mosley told the secretary that "he and his wife were interested in having" their daughter attend the school. Mosley obtained the school's telephone number and left the office. He was next seen by another teacher headed in the direction of classroom 127, where a fifth-grade student later saw him combing through two large cabinets. Finally, a third teacher, passing unlit classroom 120, saw Mosley crouched down in front of a desk with his hands on a purse on the floor below. The flap of the purse was open. The teacher asked Mosley if he needed help. Mosley pushed the purse under the desk, stood up, and responded that he was looking for an exit. He later fled and was apprehended.
Mosley does not dispute this evidence. Instead, he argues that the school applied its visitor's policy differentially, precluding the State from relying on it to establish that the classroom was not open to the public. He points to the school principal's testimony that the policy of the school allowed visitors known by staff to proceed unescorted into the building while all others had to be escorted by a staff member. We are not persuaded by this argument. As the State correctly points out, the school's application of its visitors policy is not relevant to the "open to the public" element of burglary but to the "right, license or privilege" element, an element that was not challenged on appeal. SeeIowa Code § 713.1.
As there is substantial evidence to support the district court's finding that Mosley entered an occupied structure not "open to the public," we affirm.