Opinion
No. 3-744 / 02-2055
Filed October 29, 2003
Appeal from the Iowa District Court forBlack Hawk County, Todd A. Geer, Judge.
Joshua Krum appeals his conviction following a bench trial for burglary in the third degree. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and James Tomka, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sheryl Soich, Assistant Attorney General, Thomas Ferguson, County Attorney, and D. Raymond Walton, Assistant County Attorney, for appellee.
Considered by Vogel, P.J., and Mahan and Zimmer, JJ.
Joshua Krum appeals his conviction following a bench trial for burglary in the third degree. Krum contends there was insufficient evidence in the record to support his conviction. We affirm.
Background Facts and Proceedings. Mervin Claussen (hereinafter referred to as Mervin) is the father of sixteen-year-old Amanda Claussen (hereinafter referred to as Amanda). On June 22, 2002, Mervin suspected that at least one individual was in his house without permission because the door was not properly latched and he heard footsteps. However, the individual[s] escaped out the back door.
On June 23, 2002, at approximately 5:30 p.m. Mervin arrived home and found a black Firebird parked in his driveway. Mervin partially blocked the vehicle in his driveway. He recognized the vehicle as belonging to one of his daughter's friends. Upon entering the home, Mervin noticed the rear door was not properly latched. Mervin then went upstairs and noticed the door to his daughter's bedroom was closed, which was unusual. Mervin opened the bedroom door and found two tall, thin, young men hiding there. The two men told Mervin that Amanda had given them permission to be in the house. Mervin replied: "I doubt that, because I've been with Amanda all day fishing, and you guys are in big trouble." At this point, Mervin observed that each man had an item in his hands. Mervin then dialed 911. Next, the two individuals went downstairs, placed a car amplifier and a video game on the kitchen table, and left in the black Firebird. The amplifier and video game were not on the table when Mervin entered the house. In an attempt to avoid hitting Mervin's vehicle, the Firebird knocked over the mailbox. Mervin took down the license plate number of the vehicle. Joshua Krum was later identified as the owner of the black Firebird and Eric Grasmick was later identified as the passenger. Next Mervin called Amanda and spoke to her about the owner of the Firebird. At no time during this conversation, did Amanda indicate to her father that she had given Krum and Grasmick permission to enter the Claussen home.
Krum was charged by trial information with burglary in the third degree on July 2, 2002. A bench trial commenced on October 1, 2002. At trial, Krum's defense was that he had permission from Amanda to enter her house while she was gone. Amanda testified that she knew her father would be gone and she told Krum to come over, sit in her room, and wait for her to get home. This testimony directly contradicted her prior statements to police and her comments to her friend, Trista Harper. The district court found Amanda's testimony not to be credible. In reaching its conclusion, the court stated:
At trial, Harper testified that Amanda told her "that she hadn't talked to [Krum or Grasmick] all day and that she had no clue what they were talking about when they said that she said that they could come over."
She is unreliable as a witness. Amanda Claussen stated in her deposition that on the morning in question she woke up and called her friend, Nolan Campbell. In her trial testimony, she stated that she called the defendant and gave him permission to come over to the house. In her trial testimony, she stated that she told the defendant to come over and go to her room, that she thought she might step out for a minute. However, she was at her grandparents' house for an extended period of time that day. She also had the benefit of learning the defendant's story before her trial testimony. In addition, she was receiving considerable influence and pressure from defendant's friends prior to her trial testimony. Nolan Campbell talked to Amanda Claussen regarding her testimony. Eric Grasmick talked to Amanda regarding her testimony. Amanda Claussen was even confronted with statements she made and defendant made. Eric Grasmick, Nolan Campbell and their friend, Logan talked to Amanda about her statment. When Mervin Claussen contacted Amanda Claussen on the date in question, advising her that he found the defendant in the home, Amanda Claussen did not tell her father that she had given the defendant permission to be in the home. Amanda Claussen also acknowledged that she and Nolan Campbell argued two to three times about her statement. Nolan Campbell had informed her as to the content of the defendant's statement. Amanda Claussen's last argument with Nolan Campbell occurred the night before she testified at trial. However, just a few days before the trial, her last argument with Nolan Campbell, she told authorities that she had not given permission to the defendant to go in the home. At trial, Amanda Claussen acknowledged that she still had not told her father or grandparents that she had given the defendant permission to be in the home. The court finds Amanda Claussen's testimony that she had given the defendant permission to be in the home to be totally unreliable.
Following trial, Krum was found guilty as charged. The district court sentenced him to a term of imprisonment not to exceed five years. Krum appeals.
Sufficiency of the Evidence. Krum contends the State did not present sufficient evidence to support his conviction. He first claims there is insufficient evidence to show he did not have permission or authority to enter the house. We review challenges to the sufficiency of the evidence supporting a guilty verdict for correction of errors at law. State v. Heard, 636 N.W.2d 227, 229 (Iowa 2001). We will uphold a verdict if substantial evidence supports it. Id. Evidence is substantial if it would convince a rational fact finder that the defendant is guilty beyond a reasonable doubt. Id.
We find there is substantial evidence in the record to show Krum did not have permission to enter the house. Amanda's testimony at trial, if believed by this court, would support Krum's defense that he had permission to enter her house while she was gone. However we, like the district court, find Amanda's testimony to be unreliable for several reasons. First of all, her testimony contradicts previous statements she made to police and one of her friends. Second, she admitted that she had been pressured by Krum's friends to change her testimony. Third, Amanda admitted that she did not always tell the truth as she was dishonest about an allegation that her father sexually abused her. For these reasons we agree with the State substantial evidence supports the district court's conclusion Krum did not have permission to enter the Claussen home.
Krum also contends there is insufficient evidence to show his intent to commit a theft. The element of intent in burglary is seldom susceptible to proof by direct evidence. State v. Sinclair, 622 N.W.2d 772, 780 (Iowa Ct.App. 2000). Usually proof of intent will depend upon circumstantial evidence and inferences drawn from such evidence. Id. The record supports the district court's finding that Krum intended to commit a theft when he broke into the Claussens' home. Mervin testified that the amplifier and video game were not on the kitchen table when he arrived home. However, after he found Krum and Grasmick hiding in Amanda's bedroom, he noticed each man was carrying an item in his hands and the items were left on the table when the two men left the house. In addition, Krum testified that one week prior to the date in question he had been discussing the amplifier at issue with Amanda:
[W]hen we were downstairs, me and Adam Gray, we were, you know, you know, bull s — ing about it and everything because it was a little amplifier, and, you know, the one in my car was ten times more bigger and powerful. And we were playing games with Mandy. I guess it was like a flirtation type thing. I told her, you know, "I'm going to go out and hook it up to my four twelves," you know, because it was a four channel amp. She was telling me, "No, don't do it. Don't take it." And, you know, I was, like I said, teasing her.
Krum testified he then took the amplifier with him and walked upstairs to continue the flirtation but Amanda did not follow. Also, Krum admitted on cross-examination that he had been in prison on two attempted burglary convictions and was released twenty days prior to the date in question. Under the facts presented here, we find there is substantial evidence from which a judge could conclude that Krum had the specific intent to commit a theft when he entered the Claussens' home. Accordingly, we affirm the decision of the district court.