STATE OF IOWA, Plaintiff-Appellee, vs. GADET WIW KANG, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 7-756 / 06-2115
Filed October 24, 2007
STATE OF IOWA,
Plaintiff-Appellee,
vs.
GADET WIW KANG,
Defendant-Appellant.
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Appeal from the Iowa District Court for Polk County, Artis Reis, Judge.
Gadet Kang appeals his convictions for robbery in the first degree and
burglary in the third degree. AFFIRMED.
John Heinicke of Kragnes & Associates, P.C., Des Moines, for appellant.
Thomas J. Miller, Attorney General, Cristen Douglass, Assistant Attorney
General, John P. Sarcone, County Attorney, and George Karnas, Assistant
County Attorney, for appellee.
Considered by Huitink, P.J., and Miller and Eisenhauer, JJ.
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HUITINK, P.J.
Gadet Kang appeals his convictions for robbery in the first degree in
violation of Iowa Code sections 711.1 and 711.2 and burglary in the third degree
in violation of section 713.6A(2) (2005). Kang’s sole contention on appeal is that
his convictions are not supported by substantial evidence. We affirm.
I.
Background Facts and Proceedings
Kang was charged with the foregoing offenses based on allegations he
robbed Ryan Meeker, broke into Meeker’s car, and took Meeker’s proof of
insurance card from the glove box of the car. According to the State’s theory of
the crimes, Kang confronted Meeker on a Des Moines street and asked him for
money. When Meeker refused, Kang made a threatening gesture toward Meeker
with his arms and told Meeker, “I’m not asking, I’m telling you.”
Feeling
threatened, Meeker punched Kang in the face, and in the ensuing struggle, Kang
swung a broken beer bottle at Meeker. Meeker sustained a cut on his finger
while trying to restrain Kang. After the two separated, Meeker retreated to a
nearby apartment, called the police, and was taken to a hospital for treatment.
Upon his return from the hospital, Meeker discovered his car, parked near the
scene of his encounter with Kang, had been broken into and the interior had
been ransacked.
When the police located Kang, he attempted to flee. Kang was carrying
an automobile antenna at the time he was arrested. A search of his person
produced a proof of insurance card for Meeker’s car. Under the State’s theory,
Kang used the antenna to break into Meeker’s car and took Meeker’s proof of
insurance card from the glove box.
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Kang denied making any threatening gestures towards Meeker or
demanding money from him. According to Kang, he asked Meeker for a dollar,
Meeker refused, the two exchanged racial epithets, and he acted in self-defense
after Meeker punched him in the face. Kang also denied breaking into Meeker’s
car and taking Meeker’s insurance card. He told police he found the card on the
ground after he fought with Meeker. He also denied using the antenna to break
into Meeker’s car.
At trial, Kang claimed self-defense and twice moved for judgment of
acquittal. Both motions were denied. The jury found Kang guilty, and Kang was
sentenced to concurrent twenty-five and two-year terms on the robbery and
burglary charges.
II.
Standard of Review
We review challenges to sufficiency of the evidence for correction of errors
at law. State v. Thomas, 561 N.W.2d 37, 39 (Iowa 1997).
III.
Sufficiency of Evidence
A jury’s verdict is binding on appeal if it is supported by substantial
evidence.
State v. LeGear, 346 N.W.2d 21, 23 (Iowa 1984).
Substantial
evidence is “such evidence as could convince a rational trier of fact that the
defendant is guilty beyond a reasonable doubt.” State v. Gay, 526 N.W.2d 294,
295 (Iowa 1995). Evidence, however, that only raises “‘suspicion, speculation, or
conjecture’” does not constitute substantial evidence.
State v. Randle, 555
N.W.2d 666, 671 (Iowa 1996) (quoting State v. Barnes, 204 N.W.2d 827, 829
(Iowa 1972)).
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When reviewing challenges to sufficiency of the evidence, we view the
evidence “in the light most favorable to the State, including legitimate inferences
and presumptions that fairly and reasonably may be deduced from the evidence
in the record.” State v. Hoeck, 547 N.W.2d 852, 859 (Iowa Ct. App. 1996).
“Although direct and circumstantial evidence are equally probative, the
inferences to be drawn from the proof in a criminal case must ‘raise a fair
inference of guilt as to each essential element of the crime.’” State v. Speicher,
625 N.W.2d 738, 741 (Iowa 2001) (quoting State v. Casady, 491 N.W.2d 782,
787 (Iowa 1992)). In addition, we must consider all of the evidence, not just that
which supports the jury’s verdict. State v. Conroy, 604 N.W.2d 636, 638 (Iowa
2000).
Finally, “[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).
A. Robbery in the First Degree
A defendant commits robbery in the first degree when (1) the defendant
had the specific intent to commit a theft, (2) to carry out his intention or to assist
him in escaping from the scene with or without the stolen property, the defendant
either (a) commits an assault on another or (b) threatens another with or
purposefully puts that person in fear of immediate serious injury, and (3) the
defendant either (a) purposefully inflicts or attempts to inflict serious injury or (b)
is armed with a dangerous weapon.
Iowa Code §§ 711.1, .2.
When the
defendant alleges self-defense, the State has the burden to prove the
defendant’s actions were not justified. State v. Thornton, 498 N.W.2d 670, 673
(Iowa 1993).
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Contrary to Kang’s assertions, we find the trial record contains substantial
evidence supporting each of the foregoing elements of robbery.
Meeker’s
testimony concerning Kang’s demands for money and threatening gestures are
substantial evidence of both Kang’s specific intent to commit a theft and his
threatening Meeker or putting him in fear of immediate serious injury. See Iowa
Code §§ 702.18, 708.1 (defining serious injury and assault); see also State v.
Heard, 636 N.W.2d 227, 231 (Iowa 2001). Additionally, Meeker’s testimony that
Kang swung at him with a broken beer bottle is substantial evidence that he
either attempted to inflict serious injury or was armed with a dangerous weapon.
See Iowa Code § 702.7 (defining a dangerous weapon as “any sort of instrument
or device which is actually used in such a way as to indicate the user intended to
inflict serious injury and when so used is capable of inflicting death”).
We also reject Kang’s assertion that the evidence supports his selfdefense theory that Meeker initiated the altercation and that he was justified in
using force to save himself from imminent danger, death, or injury. It is sufficient
to note that the jury was presented with two very different versions of who
initiated the altercation resulting in the criminal charges against Kang. The jury
was free to accept all, part, or none of the conflicting evidence concerning these
events. See State v. Anderson, 517 N.W.2d 208, 211 (Iowa 1994), overruled on
other grounds by State v. Heemstra, 721 N.W.2d 549, 558 (Iowa 2006). The fact
that the jury disbelieved Kang’s version of events does not mean the State’s
evidence indicating that Kang started or continued the altercation resulting in
Meeker’s injury was insubstantial.
accordingly affirm on this issue.
See Thornton, 498 N.W.2d at 673.
We
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B. Burglary in the Third Degree
A defendant commits burglary in the third degree when (1) the defendant
enters another’s vehicle, (2) the vehicle is an occupied structure, (3) the
defendant did not have permission or authority to enter the vehicle, and (4) the
defendant did so with the specific intent to commit a theft therein. Iowa Code §§
713.1, .6A(2).
Kang argues there is insufficient evidence supporting the jury’s implicit
findings that he entered Meeker’s car or that he did so with the intent to commit a
theft. We disagree.
As noted earlier, Kang had Meeker’s proof of insurance card on his person
when Kang was arrested. Meeker testified he kept his insurance card in the
glove box of his car. In addition, Kang was holding an automobile antenna that,
according to a police officer’s testimony, could have been used to break the
window in Meeker’s car.
Based on this evidence, the jury could reasonably
conclude Kang entered Meeker’s car and took Meeker’s insurance card.
“‘[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.
Olson, 373 N.W.2d 135, 136 (Iowa 1985)). “Usually proof of intent will depend
upon circumstantial evidence and inferences drawn from such evidence.” Id. at
42; see also State v. Allnutt, 261 Iowa 897, 905, 156 N.W.2d 266, 271 (1968),
overruled on other grounds by State v. Gorham, 206 N.W.2d 908, 909 (Iowa
1973) (“It is almost uniformly held that where one breaks and enters the property
of another in the nighttime an inference may be drawn that he did so to commit
larceny.”). The jury, based on the circumstantial evidence already mentioned,
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could reasonably conclude Kang entered Meeker’s car with the intent to commit
a theft. We accordingly affirm on this issue.
AFFIRMED.
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