Opinion
No. 3-184 / 02-1242
Filed July 10, 2003
Appeal from the Iowa District Court for Polk County, John Crouch, Judge.
Justin S. appeals from the order finding he had committed the delinquent act of third-degree burglary. AFFIRMED.
Tiffany Koenig, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, John Sarcone, County Attorney, and Cory McClure, Assistant County Attorney, for appellee.
Considered by Vogel, P.J., and Miller and Eisenhauer, JJ.
Justin S. appeals from the order finding he had committed the delinquent act of third-degree burglary, in violation of Iowa Code sections 713.1 and 713.6(A)(1) (2001). We affirm.
On the morning of May 9, 2002, Lori Hoffman was getting ready for work at her home when she heard a car pulling into the driveway. Assuming it was her husband returning home, she went about her business. However, when between five and ten minutes passed without her husband coming in the house, she looked outside to see an unfamiliar car parked inside the garage and two boys walking inside. One boy, later identified as Justin, was examining items inside the garage.
Hoffman then went outside to confront the two boys, and asked them what they were doing. One of the boys said that Justin "had to pee." The boys got into their car, in which Hoffman noticed they had three fishing poles in plain view. As the car pulled out, the driver stopped and again said the other boy had to "use the bathroom." Hoffman jotted down the license plate and immediately called the police who soon located the two boys traveling in the same car. Later Hoffman identified the same fishing poles as belonging to her and her husband.
Based on this incident, the State filed a delinquency petition alleging Justin had committed third-degree burglary. Following a later adjudicatory hearing, the district court determined Justin had committed third-degree burglary. Justin appeals from this decision.
On appeal Justin contends the evidence is insufficient to support the delinquency determination. We review this matter de novo. In re J.D.F., 553 N.W.2d 585, 587 (Iowa 1996). We give weight to the fact findings of the juvenile court, especially when considering the credibility of witnesses, but we are not bound by them. In re J.D.S., 436 N.W.2d 342, 344 (Iowa 1989). We review a sufficiency challenge to determine if there is substantial record evidence to support the charge. See In re W.B., 641 N.W.2d 543, 547 (Iowa Ct.App. 2001).
All burglary which is not first or second-degree burglary is third-degree burglary. Iowa Code§ 713.6A. Burglary is defined as:
Any 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, or who remains therein after it is closed to the public or after the person's right, license or privilege to be there has expired, or any person having such intent who breaks an occupied structure, commits burglary.
On our de novo review, we conclude the court properly determined Justin committed the delinquent act of third-degree burglary. Although the State argued it was proceeding on alternative theories Justin "actually took the reels or he aided and abetted the co-offender of taking those fishing poles," the court found Justin "aided and abetted someone in the conscious act" of taking the fishing rods.
Aiding and abetting in a crime occurs when a person assents to or lends countenance and approval to another's criminal act either by active participation or by encouraging it in some manner prior to or at the time of its commission. State v. Lott, 255 N.W.2d 105, 107 (Iowa 1977). It is essential that the aider and abettor have knowledge of the perpetrator's criminal activity prior to its commission. State v. Vesey, 241 N.W.2d 888, 891 (Iowa 1976). Knowledge of the crime may be shown by circumstantial evidence. State v. Buttolph, 204 N.W.2d 824, 825 (Iowa 1972). This evidence may include "presence, companionship, and conduct before and after the offense is committed." Id. The subsequent conduct, however, is relevant only as it shows the accused's prior encouragement or participation. State v. Barnes, 204 N.W.2d 827, 828-29 (1972).
We conclude the record contains sufficient circumstantial evidence supporting the court's conclusion Justin aided and abetted in the burglary. Justin and his companion spent between five and ten minutes in the garage. Before Lori Hoffman confronted the pair, she witnessed Justin "fool[ing] around with the stuff we have hanging on our garage." When she entered the garage Justin had just finished urinating in the corner. The fishing poles, which could only have been placed in the vehicle by either Justin or the other boy, were in plain view in the back seat of the car. After the pair left Hoffman's residence, Justin remained with his friend in the vehicle for at least twenty minutes before a police officer stopped them based on Hoffman's report of the vehicle's license plate number.
Justin's "presence, companionship, and conduct before and after the offense" support the court's finding. See State v. Travis, 497 N.W.2d 905, 908 (Iowa Ct.App. 1993). The extended period the boys spent in the garage cannot support the conclusion that Justin's sole intent was to urinate. The fact Lori Hoffman witnessed Justin examining items in her garage, knowing they were not his, provides evidence as to his motives while therein. Moreover, we believe his actions subsequent to the crime are relevant to his participation in the crime. Justin remained in his companion's vehicle with the stolen poles in plain sight. At no time did he attempt to withdraw his association with his companion, return the fishing poles, or disavow his friend's actions. See Barnes, 204 N.W.2d at 828-29. The circumstantial evidence supports the inference Justin, if not the principal, certainly aided and abetted in the burglary. His presence and knowledge support that Justin participated with either the requisite intent, or with knowledge the principal possessed the required intent. See Lott, 255 N.W.2d at 109. We therefore affirm the delinquency adjudication.