Opinion
No. 1-836 / 01-0095.
Filed January 28, 2002.
Appeal from the Iowa District Court for Black Hawk County, BRUCE B. ZEAGER, Judge.
Hung Quoc Tran appeals from his conviction and sentence for burglary in the third degree, as an habitual offender, pursuant to Iowa Code sections 713.6A, 902.8, and 902.9 (1999). AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Linda Del Gallo, State Appellate Defender and Stephan Japuntich, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Thomas Tauber, Assistant Attorney General, Thomas J. Ferguson, Black Hawk County Attorney, and Douglas Eichholz, Assistant Black Hawk County Attorney, for appellee.
Considered by VOGEL, P.J., and MILLER and EISENHAUER, JJ.
Hung Quoc Tran appeals from his conviction and sentence for burglary in the third degree, as an habitual offender, pursuant to Iowa Code sections 713.6A, 902.8, and 902.9 (1999). He contends (1) the district court erred in failing to instruct on the correct alternative of the lesser included offense of criminal trespass, (2) the court erred in overruling his motions for judgment of acquittal because the evidence was insufficient to establish the requisite specific intent for third-degree burglary, and (3) his trial counsel was ineffective for failing to object to testimony of suspected cigarette theft by Tran and for failing to request an instruction on a defense of a claim of right. We reverse and remand for new trial.
I. BACKGROUND FACTS
Hung Quoc Tran was hired as a deli cook at the All Stop Store in Cedar Falls, Iowa in May 2000 by the store's manager Lisa Hart. Tran was given a key to the store by Hart so he could get in at 4:00 a.m. to prepare the deli for the opening of business at 5:30 a.m. Tran knew however that it was not proper store procedure to be in the store after business hours without express permission. Tran was also trained to run the cash registers and knew the store practice of leaving $100 in cash in each unlocked register drawer overnight.
On occasion Tran would buy ingredients for the store which he used to make egg rolls for the deli. Hart told Tran that when he needed to buy ingredients he should tell her or one of the other supervisors and they would get the money out of the register for him and issue a paid-out. Tran would then need to bring back a receipt and any change from the purchase. Tran once took cash from the store's petty cash to purchase the egg roll ingredients and was warned not to do so again.
On July 28, 2000 Tran worked until approximately 10:30 p.m. at the All Stop Store. He went home, got $20 from his wife, and returned to the store to go drinking with some of his co-workers around 11:00 p.m. Tran and Hart both testified that if Tran needed money for ingredients for the egg rolls he could have asked one of the cashiers to contact Hart at that time to get the money but he did not. Tran and his co-workers went barhopping until about 1:30 a.m. that night. Tran then took the others home and at that point, by his own admission, he decided he wanted to buy drugs.
Tran also admitted at trial that he has a serious drug problem.
Tran entered the store around 1:47 a.m. and testified it was his intention at that time to get money to buy drugs, as the $20 he had gotten from his wife earlier was gone. Tran claimed at trial that he intended to reimburse the store with egg roll ingredients he had already purchased with his own money. He stated he did not intend to steal the money as he thought the money was really owed to him for the ingredients. Tran took $50 from one of the cash drawers. He left no note indicating he was taking it for ingredients or that he would pay it back. He left the store, bought drugs, and within hours was arrested on drug charges. At the time of his arrest he only had $5.75 in his possession.
Hart arrived at work the next morning at 4:00 a.m. Tran was supposed to be working with her but he did not show up. Some time later Tran called and said he was in jail so he would not be coming to work. Tran mentioned nothing at that time about having taken the money the night before. At 9:00 a.m. a cashier came in to start her shift and when she counted her drawer she discovered it was $50.50 short. She informed Hart who also counted the drawer and came up with the same shortage. Hart then watched the security videotape and saw that Tran had come into the store and taken the money during the night. Tran admitted to a police officer he had taken around $50 from the store. Tran's wife repaid the money and returned Tran's store key to Hart within a few days of the crime.
The State charged Tran with burglary in the third degree. It alleged he entered the All Stop Store with the intent to commit a theft. The case proceeded to jury trial and the jury found Tran guilty as charged. In a separate proceeding Tran admitted he had twice before been convicted of a felony. The court sentenced Tran as an habitual offender to fifteen years imprisonment with a mandatory minimum of three years.
II. MERITS
Tran appeals from his conviction alleging the court erred in refusing to instruct the jurors on the "intent to remove" alternative of criminal trespass as a lesser included offense of the charged offense of burglary under the "entry" alternative and in failing to grant his motions for judgment of acquittal as there was insufficient evidence to prove he entered the All Stop Store with the intent to commit a theft. Tran also alleges his trial counsel was ineffective for failing to object to Hart's testimony that she suspected him of stealing cigarettes from the store and in failing to ask for an instruction on the defense of a "claim of right." We will address these issues separately.
A. Sufficiency of the Evidence
Our scope of review and many of the standards of review that apply in sufficiency-of-the-evidence challenges are set forth in State v. Kirchner, 600 N.W.2d 330, 333-34 (Iowa Ct.App. 1999) and need not be repeated here. The following additional standards are applicable as well. We give consideration to all of the evidence, not just that supporting the verdict. State v. Schmidt, 588 N.W.2d 416, 418 (Iowa 1998). "Inherent in our standard of review of jury verdicts in criminal cases is the recognition that the jury was free to reject certain evidence, and credit other evidence." State v. Anderson, 517 N.W.2d 208, 211 (Iowa 1994). The credibility of witnesses, in particular, is for the jury. "A jury is free to believe or disbelieve any testimony as it chooses and to give as much weight to the evidence as, in its judgment, such evidence should receive." State v. Liggins, 557 N.W.2d 263, 269 (Iowa 1996); see also State v. Thornton, 498 N.W.2d 670, 673 (Iowa 1993) (same).
In order to prove Tran guilty of burglary in the third degree the State had to prove he acted with the specific intent to commit a theft. The trial court instructed the jurors on the specific intent requirement in Instruction 12, its marshalling instruction on burglary in the third degree. In Jury Instructions 17 and 18 the court further instructed as follows:
The State must prove all of the following elements of Theft:
1. On or about the 29th day of July 2000, the Defendant took possession or control of $50.
2. The Defendant did so with the intent to deprive the All Stop Store of the $50.
3. The property, at the time of the taking, belonged to the All Stop Store.
The State does not have to prove that an actual theft occurred. The State must only prove that when the Defendant entered the All Stop Store he did so with the intent to commit a theft.
Instruction 17.
The intent to "deprive the other" of the property means to permanently withhold, or withhold for so long, or under such circumstances, that its benefit or value is lost; or, the property is disposed of so that it is unlikely the owner will recover it.
Instruction 18.
Tran argues the only logical inference which can be drawn from the facts in the record is that he did not have the required specific intent to permanently deprive the All Stop Store of the $50. Supporting Tran's argument is his own testimony that he planed to reimburse the store with the egg roll ingredients he had previously purchased with his own money, and the facts that he did not try to conceal his identity even though he knew the store had security cameras, he only took $50 instead of the full $200 the drawers contained, and his wife in fact paid the $50 back to the store within a few days of the crime.
However, Tran did not leave any note telling Hart that he had taken the money nor did he tell her about the money the next morning when he talked to her on the phone. Tran also knew the policy against being in the store after hours, he had been told before the proper and improper way to buy egg roll ingredients for the store, and he knew he could have asked one of the night cashiers to call Hart regarding the money for ingredients but did not do so. Furthermore, although he testified at trial Tran did not offer into evidence either the alleged ingredients or a receipt showing he had bought them, nor did he offer any explanation as to why he did not present such evidence.
"[T]he element of intent in burglary is seldom susceptible to proof by direct evidence." Usually proof of intent will depend upon circumstantial evidence and inferences drawn from such evidence. A factfinder may infer an intent . . . from the circumstances of the defendant's entry into the premises and his acts preceding and following the entry. The requirement of proof beyond a reasonable doubt is satisfied if it is more likely than not that the inference of intent is true.State v. Finnel, 515 N.W.2d 41, 42 (Iowa 1994) (citations omitted).
The jury was free to reject certain evidence, and credit other evidence. Anderson, 517 N.W.2d at 211. In particular, the credibility and weight to give to Tran's testimony was for the jury to determine and it was free to believe or disbelieve any testimony as it saw fit. Liggins, 557 N.W.2d at 269. Based on all of the evidence in the record we conclude reasonable jurors could find beyond a reasonable doubt that Tran had the requisite specific intent to deprive and thus could find him guilty of burglary in the third degree. Therefore, the trial court did not err in overruling Tran's motions for judgment of acquittal.
B. Failure to Give Requested Instruction
Tran argues the trial court erred in refusing to grant his request for an instruction which would have allowed the jurors to convict him on the "intent to remove" alternative of criminal trespass based on a finding that he intended to remove the money but did not intend to steal it. In its Instruction 19 the court gave the following marshalling instruction on criminal trespass:
The State must prove all of the following elements of Criminal Trespass:
1. On or about the 29th day of July, 2000, the Defendant entered upon the property of the All Stop Store.
2. The Defendant did not have the express permission of the All Stop Store.
3. When the Defendant entered, he had the specific intent to commit the crime of theft.
If the State has proved all of the elements, the Defendant is guilty of Criminal Trespass. If the State has failed to prove any one of the elements, the Defendant is not guilty.
Tran objected to the instruction and requested that the instruction be broader to allow the jury to find he entered the store with the intent to remove the money rather than with the intent to steal it. The court overruled the objection and the jury found Tran guilty of burglary in the third degree. Tran asserts that the court's failure to give the broader requested instruction deprived him of the opportunity to present his theory of defense based upon lack of specific intent to commit a theft. We review alleged error regarding submission or refusal to submit jury instructions for correction of errors at law. Iowa R. App. P. 4; State v. Rains, 574 N.W.2d 904, 915 (Iowa 1998).
Criminal trespass includes "[e]ntering upon . . . property without . . . express permission . . . with the intent . . . to . . . remove therefrom . . . anything animate or inanimate." Iowa Code § 716.7(2)(a) (1999).
The State charged Tran with the "entering with the intent to commit a theft" alternative of burglary under Iowa Code section 713.1. The court was therefore required to instruct on criminal trespass as defined in Iowa Code section 716.7(2)(a) as a lesser included offense. State v. Waller, 450 N.W.2d 864, 865 (Iowa 1990); State v. Sangster, 299 N.W.2d 661, 664 (Iowa 1980).
The trial court is required to instruct the jury on the applicable law. Iowa R. Crim. P 18(5)(f); Iowa R. Civ. P. 196. As long as the requested instruction correctly states the law, has application to the case, and is not stated elsewhere in the instructions, the court must give the requested instruction. State v. Kellogg, 542 N.W.2d 514, 516 (Iowa 1996). In criminal cases the court is required to instruct not only on the definition of the crime, State v. Hoffer, 383 N.W.2d 543, 548 (Iowa 1986), but also on the defendant's theory of defense as raised by the evidence, State v. Broughton, 425 N.W.2d 48, 49-50 (Iowa 1988).
Ordinarily, the district court must instruct on a defendant's theory of defense provided the defendant makes a timely request, the requested theory of defense instruction is supported by the evidence, and the requested instruction is a correct statement of the law.
State v. Ross, 573 N.W.2d 906, 913 (Iowa 1998). The trial court also ordinarily has a duty to instruct the jury on all material issues raised by the evidence. State v. Babers, 514 N.W.2d 79, 82 (Iowa 1994).
Based on the record before us we conclude there was substantial evidence in the record supporting Tran's defense that he did not enter the store with the intent to steal the money but rather with the intent to remove the money. Most significant was Tran's own testimony that he did not intend to steal the money but instead intended only to remove it and either reimburse the store with egg roll ingredients, money, or both. We also conclude that a person whose act evidences an intent to commit a theft under the burglary statute necessarily has also evidenced an intent to remove property under section 716.7(2)(a). Thus it is impossible to commit burglary as charged, without committing the "intent to remove" alternative of criminal trespass. A reasonable fact finder could have determined Tran was guilty of the "intent to remove" alternative of criminal trespass under Iowa Code section 716.7(2)(a). The trial court was therefore required to instruct on that alternative of criminal trespass and erred in overruling Tran's timely request for such an instruction. We must reverse Tran's conviction and remand for a new trial.
IV. CONCLUSION
We conclude a rational fact finder could find, beyond a reasonable doubt, that Tran had the requisite specific intent to find him guilty of burglary in the third degree. Therefore, the trial court did not err in denying Tran's motions for judgment of acquittal alleging insufficient evidence on the specific intent element of burglary in the third degree and we affirm on that issue. We further conclude the court erred in failing to give Tran's requested instruction on the lesser-included "removal" alternative of criminal trespass under Iowa Code section 716.7(2)(a). Accordingly, we reverse Tran's conviction and remand for a new trial. Because we have reversed and remanded for a new trial we need not address Tran's claims of ineffective assistance of counsel.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.