Opinion
No. 1-954 / 01-0354.
Filed February 6, 2002.
Appeal from the Iowa District Court for Lee (South) County, DAVID B. HENDRICKSON, Judge.
Peter James Garcia appeals from his conviction and sentence for attempted burglary in the third degree and driving while license revoked, following a jury trial. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Robert Ranschau, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Linda Hines, Assistant Attorney General, for appellee.
Considered by SACKETT, C.J., and MAHAN and HECHT, JJ.
The defendant-appellant,Peter James Garcia, appeals from his conviction and sentence for attempted burglary in the third degree and driving while license revoked, following a jury trial. He claims there was insufficient evidence to support his attempted burglary conviction. We affirm.
Background facts and proceedings. On October 20, 2000, at approximately 2:15 a.m., Keokuk police officer Scott Ragar entered the parking lot of the Elks Golf Club. He observed a Toyota Celica parked in the northeast corner of the lot. The car was parked so that it was not visible from the street. Ragar ran a license plate check and learned that it matched a Ford Ranger in Garcia's name and that Garcia's license was suspended. Officer Dunagan arrived and together the officers looked into the car. The hatchback of the car was folded down and the officers saw a small carton, a pair of channel locks, a four-way tire wrench, a Tupperware container and a few pop bottles. When the officers returned to the parking lot about 3:00 a.m., after going on another call, the car was gone. Ragar radioed other officers to watch for the Celica. Dunagan stopped the defendant's car about an hour later. Garcia told Dunagan he was just coming from work. Dunagan observed stereo equipment, a canvas bag, and screwdrivers in the back of the Celica that had not been there earlier that morning. The canvas bag contained a black mask, fingerless gloves, military type wool gloves, jumper cables, three flashlights, rain gear, first-aid kit, bungee cord and an aerosol can for inflating flat tires. Garcia told Dunagan the stereo equipment was his and he had just taken it out of storage. Garcia was taken into custody for driving while barred.
About 8:00 that morning police learned that the Christian Academy, located near the Elks Club, had been burglarized and stereo equipment was missing. The serial numbers on the tape deck and the C.D. player found in Garcia's car matched the serial numbers on equipment missing from the Christian Academy. White residue on one of the screwdrivers in Garcia's car resembled the white caulking around windows of the Christian Academy. When the police informed Garcia he was being charged with burglary, he told them he bought the stereo equipment from Nathan Washburn and told them where Washburn was staying. Washburn was wanted in Missouri for escape.
At trial Garcia testified he was at the Elk's Club talking with Washburn. He said he bought the stereo equipment from Washburn, but told police it was his because he wanted to protect Washburn, as Garcia knew he was wanted in Missouri. He testified he did not break into the Christian Academy or steal the stereo equipment. At the close of all evidence, Garcia moved for a judgment of acquittal. The court overruled the motion and gave the following instruction to the jury as Jury Instruction 17:
In order to convict defendant of the offense of Attempted Burglary in the Third Degree, the State must prove beyond a reasonable doubt that:
1. On or about October 20, 2000, the defendant attempted to enter Keokuk Christian Academy.
2. Keokuk Christian Academy was an occupied structure as defined in Instruction No. 20.
3. The Defendant did not have permission or authority to enter Keokuk Christian Academy.
4. Keokuk Christian Academy was not open to the public.
5. The defendant attempted to do so with the specific intent to commit a theft.
The jury convicted Garcia of the lesser-included offense of attempted burglary in the third degree. Garcia appeals.
Claims on appeal. Garcia claims the State presented insufficient evidence from which the jury could convict him of third-degree burglary.
Analysis. We review a challenge to the sufficiency of the evidence for errors of law. State v. McPhillips, 580 N.W.2d 748, 752 (Iowa 1998). We review the evidence in the light most favorable to the State, and consider all the evidence presented at trial, not just the evidence that supports the verdict. State v. Robinson, 288 N.W.2d 337, 340 (Iowa 1980). The verdict must be supported by substantial evidence, "such evidence as could convince a rational trier-of-fact that the defendant is guilty beyond a reasonable doubt." Id. at 339. The burden is on the State to prove every element of the crime with which the defendant is charged. State v. Gibbs, 239 N.W.2d 866, 867 (Iowa 1976). The evidence presented must raise a fair inference of guilt and do more than just create speculation, suspicion, or conjecture. State v. Hamilton, 309 N.W.2d 471, 479 (Iowa 1981). A verdict is binding on us unless the finding is clearly against the weight of the evidence. State v. Schrier, 300 N.W.2d 305, 306 (Iowa 1981).
"[I]n Iowa as well as in numerous other jurisdictions, the law has long allowed juries to employ the permissible inference possession of recently stolen property may be utilized as proof defendant committed a breaking and entering." State v. Lewis, 242 N.W.2d 711, 716 (Iowa 1976). However, bare proof of possession of property recently stolen does not permit, as a matter of law, the rational juror to conclude beyond a reasonable doubt the possessor committed the break-in since possession alone could well support an inference of guilt for other crimes besides burglary. Consequently, where a party in possession of recently stolen property is charged with burglary there must be evidence in the record relating to the surrounding circumstances for the jury to consider. . . . Id. at 723. Such evidence of the surrounding circumstances exists in the record in the case before us. Garcia was in the area of the burglary around the time it was committed. When police officers observed his vacant car in the parking lot about 2:15 a.m., it did not contain the stolen stereo equipment or the canvas bag and tools. When Garcia was stopped about 4:00 a.m., his car contained the stolen stereo equipment and a screwdriver with white residue on the blade similar to the material around the windows at the Christian Academy. We conclude the record contains sufficient evidence from which the jury could find Garcia guilty of burglary. Consequently, we affirm his conviction for the lesser-included offense of attempted burglary.
AFFIRMED.