STATE OF IOWA, Plaintiff-Appellee, vs. DARRELL ALLEN SHOWENS, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 6-951 / 06-0025
Filed December 28, 2006
STATE OF IOWA,
Plaintiff-Appellee,
vs.
DARRELL ALLEN SHOWENS,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, David H. Sivright, Jr.,
Judge.
Darrell Allen Showens appeals his conviction for attempted burglary in the
second degree. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Patricia Reynolds,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Thomas Andrews, Assistant Attorney
General, William E. Davis, County Attorney, and Julie Walton, Assistant County
Attorney, for appellee.
Considered by Huitink, P.J., Vogel, J., and Brown, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2005).
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HUITINK, P.J.
Darrell Allen Showens appeals his conviction for attempted burglary in the
second degree. He claims the evidence is not sufficient to support his conviction.
Showens also claims prosecutorial misconduct necessitating a new trial. We
affirm.
I. Background Facts and Proceedings.
Holly Bierman called the police after she heard noises outside her
bathroom window and saw someone outside her bedroom window moving or
attempting to remove the air conditioner. Lori Walker, the responding police
officer, found Showens with his hands on the outside wall of Bierman’s apartment
house looking in an apartment window. Walker would later testify that Showens
told her he had been drinking with friends earlier and was riding his bicycle home
when he decided to walk for awhile to sober up.
Walker’s subsequent
questioning also indicated Showens could not recall the address of the residence
where he was drinking with his friends, nor was his presence near Bierman’s
apartment building consistent with the most direct route to his stated home
address. Showens also told Walker he was looking in the windows so he could
see a clock to determine the correct time. Walker testified Showens was wearing
a watch and, contrary to his claims, did not appear to be nor did a subsequent
breath test indicate he was intoxicated. Showens’s bicycle was located nearby.
Investigators subsequently found an inverted chair under Bierman’s window.
Showens’s fingerprint was found on Bierman’s window air conditioner.
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At the close of the evidence, Showens’s counsel moved for a judgment of
acquittal. Counsel argued the evidence was not sufficient to establish Showens’s
intent to commit an assault or theft. The trial court’s resulting ruling states:
The motion is denied. The Court finds that a jury question is
generated by the circumstantial evidence in this case, which
includes the fact that the area was not well lit. There is evidence
from which the jury could find the Defendant had been there before
and had ascertained that fact; that his bicycle was left some
distance from the area where the alleged victim resided; the hour of
the early morning. This is circumstantial evidence from which the
jury could conclude that the intent was to break or enter and
commit a crime, specifically a –- a theft or assault on the property.
So the -– the motion is denied. And that -– that should be
considered renewed after the defense also rested without calling
witnesses. The same motion would be considered made at the
close of all evidence and resisted, and the same ruling would apply.
The jury returned a verdict finding Showens guilty as charged.
Showens’s
posttrial motions were denied, and Showens was sentenced as an habitual
offender to a term not to exceed fifteen years.
On appeal, the appellate defender raises the following issue on
Showens’s behalf:
I.
The record contains insufficient evidence to support
defendant’s conviction for attempted burglary in the second
degree.
Showens has filed a pro se brief in which he makes the following
arguments:
I.
II.
The record contains insufficient evidence to support
defendant’s conviction for attempted burglary in the second
degree.
Prosecuting attorney engaged in prejudicial misconduct at
the trial during her closing arguments to the jury.
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II. Standard of Review.
We review a sufficiency of the evidence challenge for correction of errors
at law. State v. Thomas, 561 N.W.2d 37, 39 (Iowa 1997).
III. Sufficiency of the Evidence.
We uphold a verdict if substantial evidence supports it. State v. Williams,
695 N.W.2d 23, 27 (Iowa 2005). A jury’s finding of guilt is binding upon us unless
there is not substantial evidence in the record to support the finding. State v.
Sutton, 636 N.W.2d 107, 110 (Iowa 2001). Substantial evidence is evidence that
could convince a rational trier of fact that the defendant is guilty beyond a
reasonable doubt.
State v. Robinson, 288 N.W.2d 337, 339 (Iowa 1980).
“‘Evidence in not insubstantial merely because we may draw different
conclusions from it; the ultimate question is whether it supports the finding
actually made, not whether the evidence would support a different finding.’”
Chrysler Fin. Co. v. Bergstrom, 703 N.W.2d 415, 418 (Iowa 2005) (quoting
Fischer v. City of Sioux City, 695 N.W.2d 31, 33-34 (Iowa 2005)).
We view the evidence in the light most favorable to the State, but consider
all the evidence, not just the evidence supporting the verdict.
Thomas, 561
N.W.2d at 39. “Direct and circumstantial evidence is equally probative.” State v.
Shortridge, 589 N.W.2d 76, 80 (Iowa Ct. App. 1998). The evidence must raise a
fair inference of guilt as to each essential element of the crime and must do more
than raise suspicion, speculation, or conjecture. State v. Webb, 648 N.W.2d 72,
76 (Iowa 2000). “[W]hen two reasonable inferences can be drawn from a piece
of evidence, we believe such evidence only gives rise to a suspicion, and,
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without additional evidence, is insufficient to support guilt.” State v. Truesdell,
679 N.W.2d 611, 618-19 (Iowa 2004).
Iowa Code section 713.2 defines attempted burglary as follows:
Any person, having the intent to commit a felony, assault or theft
therein, who, having no right, license, or privilege to do so, attempts
to enter an occupied structure, the occupied structure not being
open to the public . . . or any person having such intent who
attempts to break an occupied structure, commits attempted
burglary.
Iowa Code section 713.6 classifies attempted burglary in the second degree as
burglary attempted without the use of a dangerous weapon or explosive while
one or more persons are present within the occupied structure and no bodily
injury is caused to any person. “Attempted burglary is distinguished from the
completed crime by defendant’s failure to effect an entry.” State v. Erving, 346
N.W.2d 833, 836 (Iowa 1984).
Showens’s challenge to the sufficiency of the evidence supporting his
conviction is limited to the intent to commit a theft or assault element of
attempted burglary. We therefore limit our consideration to the evidence relevant
to Showens’s intent.
“[T]he element of intent in burglary is seldom susceptible to proof by direct
evidence.” State v. Finnel, 515 N.W.2d 41, 42 (Iowa 1994) (quoting State v.
Olsen, 373 N.W.2d 135, 136 (Iowa 1985)). “It is not required that intent be
proved by direct evidence; intent is seldom so proved.”
N.W.2d 386, 388 (Iowa 1989).
State v. Salkil, 441
“Usually proof of intent will depend upon
circumstantial evidence and inferences drawn from such evidence.” Finnel, 515
N.W.2d at 42. “We also have held failure to effect a completed breaking and
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entry will not negate the jury’s ability to find an unlawful intent.” Erving, 346
N.W.2d at 836. “The requirement of proof beyond a reasonable doubt is satisfied
if it is more likely than not that the inference of intent is true.” Finnel, 515 N.W.2d
at 42. Under an earlier version of the burglary statute, our supreme court held
the unexplained breaking and entering of a dwelling house in the nighttime is
sufficient to support the jury’s finding that the breaking and entering was done to
commit larceny.
State v. Woodruff, 208 Iowa 236, 239, 225 N.W. 254, 257
(1929). The supreme court has also said, “It is almost uniformly held that where
one breaks and enters the property of another in the nighttime an inference can
be drawn that he did so with the intent to commit a larceny.” State v. Allnut, 261
Iowa 897, 905, 156 N.W.2d 266, 271 (1968) reversed on other grounds by State
v. Gorham, 206 N.W.2d 908, 910 (Iowa 1973).
We, like the trial court, find the record contains substantial evidence from
which the jury could infer Showens’s intent to commit a theft. In addition to the
circumstantial evidence we have already mentioned, Showens’s intent to commit
a theft is also supported by the permissible inference drawn from his attempted
entry into Bierman’s apartment.
Id.
Showens’s implausible statements
concerning his presence at the apartment building and intentions for looking in
Bierman’s window are also evidence from which the jury could infer his intent to
commit a theft.
See State v. Schrier, 300 N.W.2d 305, 309 (Iowa 1981)
(consciousness of guilt may be inferred from palpable falsehood or suppression
of true facts). We affirm on this issue.
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IV. Prosecutorial Misconduct.
Showens’s prosecutorial misconduct claim is based on statements the
prosecutor made in closing argument. Because the record fails to disclose any
objections to the prosecutor’s closing argument, Showens has failed to preserve
error on this issue. See State v. McCright, 569 N.W.2d 605, 608 (Iowa 1997).
AFFIRMED.
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