IN THE COURT OF APPEALS OF IOWA
No. 13-0618 Filed August 27, 2014
STATE OF IOWA, Plaintiff-Appellee,
vs.
DAVID HOWARD ROONEY, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Pottawattamie County, Richard H.
Davidson, Judge.
Defendant appeals his conviction for burglary in the third-degree.
AFFIRMED.
Mark C. Smith, State Appellate Defender, and Vidhya Reddy, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Tyler Buller, Assistant Attorney
General, Matthew Wilber, County Attorney, and Tom Nelson, Assistant County
Attorney, for appellee.
Considered by Vogel, P.J., and Tabor and McDonald, JJ. 2
VOGEL, P.J.
David Rooney appeals his conviction for burglary in the third degree. He
claims there was insufficient evidence supporting the jury’s conclusion he
“entered” an “occupied structure” as defined in the Iowa Code, and that the
district court erred in submitting the “overnight accommodation” and “storage or
safekeeping anything of value” alternatives defining an occupied structure to the
jury. He further claims the court erred in overruling his motion for mistrial based
on alleged prosecutorial misconduct during closing argument. We conclude the
house in this case, although abandoned, satisfies the definition of “occupied
structure,” and therefore sufficient evidence supported Rooney’s burglary
conviction. Additionally, no comments made by the prosecutor during closing
arguments rose to the level of misconduct such that Rooney was denied a fair
trial, and therefore the district court properly overruled Rooney’s motion for
mistrial. Consequently, we affirm.
I. Factual and Procedural Background
On November 4, 2012, Council Bluffs Fire Department responded to a fire
at a dilapidated city-owned house. The fire department investigator found signs
of forcible entry. He also found indicia that copper wiring and a cast-iron radiator
had been removed from the house. Witnesses reported seeing two men loading
a radiator or heat register from the house onto a jimmy-rigged flatbed pickup
truck a few hours before the fire started. Law enforcement later discovered the
reported vehicle. Two men were with the vehicle, one of which was Rooney.
Although Rooney denied any involvement with the fire, he admitted to “being at
the property that day scrapping metal.” 3
The house in question had not been lived in since 2002, and since 2007
the house had been owned by the City of Council Bluffs (City). The house was
built about 1890, and was thought to be the oldest residence in Council Bluffs.
The goal was to preserve its historic value; however, all efforts to secure a
developer to restore the house had failed. On the date of the fire, the house did
not have any power or electricity, insulation was down, walls and wires were
exposed, the drywall was punctured, and the pipes were disconnected. The
investigator for the fire department described the house as being in disrepair,
vacant, and completely boarded up, while a neighbor described the house as
“just an old, abandoned, nobody-lives-there house, falling apart, boarded up.”
While the house was unoccupied, evidence in the record showed transient
people occasionally spent the night there.
On December 12, 2012, Rooney was charged with burglary in the third
degree, in violation of Iowa Code sections 713.1 and 713.6A(1) (2011).
Following a jury trial, he was convicted on February 20, 2013, and sentenced to a
term of incarceration not to exceed five years. Rooney appeals.
II. “Entering” an “Occupied Structure”
Rooney first claims insufficient evidence supported the jury’s verdict he
“entered” an “occupied structure” as contemplated in Iowa Code section 713.1,
because, he asserts, an abandoned house does not meet the definition of an
occupied structure under section 702.12.
A. Standard of Review
“Sufficiency of evidence claims are reviewed for a correction of errors at
law.” State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012). “In reviewing 4
challenges to the sufficiency of evidence supporting a guilty verdict, courts
consider all of the record evidence viewed ‘in the light most favorable to the
State, including all reasonable inferences that may be fairly drawn from the
evidence.’” Id. (citation omitted). We will uphold a verdict if it is supported by
substantial evidence. Id. “Evidence is considered substantial if, when viewed in
the light most favorable to the State, it can convince a rational jury that the
defendant is guilty beyond a reasonable doubt.” Id.
B. Definition of “Occupied Structure”
Iowa has historically followed the common law approach to defining
burglary. See id. At common law, only a “dwelling house” could be the subject
of the offense of burglary. See State v. Pace, 602 N.W.2d 764, 769 (Iowa 1999).
The General Assembly expanded the scope of the burglary statute in 1978
beyond “dwelling houses” to “occupied structures.” Id. The Iowa Code now
defines 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, enters an occupied structure, such occupied structure not being open to the public, or who remains therein after it is closed to the public or after the person’s right, license or privilege to be there has expired, or any person having such intent who breaks an occupied structure, commits burglary.
Iowa Code § 713.1. Iowa Code section 702.12 defines an “occupied structure” in
the following manner:
[A]ny building, structure, appurtenances to buildings and structures, land, water or air vehicle, or similar place adapted for overnight accommodation of persons, or occupied by persons for the purpose of carrying on business or other activity therein, or for the storage or safekeeping of anything of value. Such a structure is an “occupied structure” whether or not a person is actually present. 5
(Emphasis added.)
The statute is written in the disjunctive, such that proof is required on only
one of the three alternatives. See Powers v. McCullough, 140 N.W.2d 378, 385
(Iowa 1966) (“With few exceptions the doctrine is well settled that when two or
more acts are enumerated in a statute disjunctively, and are not repugnant to
each other, they may be alleged conjunctively in an indictment or information
without duplicity.”). At issue here is the jury instruction defining a structure as
“occupied” if it is either “adapted for overnight accommodations” or for the
“storage and safekeeping of anything of value.”
C. Adapted for Overnight Accommodations
The record supports this house as meeting the definition of “occupied
structure” under the “adapted for overnight accommodations.” It is undisputed
that the house in question is a structure that was built for overnight
accommodations. Therefore, because the statute is written in the disjunctive, the
house satisfies the definition of occupied structure under this alternative. See
Iowa Code § 702.12 (“An ‘occupied structure’ is any building, structure,
appurtenances to buildings and structures, land, water or air vehicle or similar
place adapted for overnight accommodation of persons”); see also State v.
Sinclair, 622 N.W.2d 772, 780 (Iowa Ct. App. 2000) (holding sufficient evidence
supported the defendant’s burglary conviction where he entered the home of his
ex-wife and proceeded to commit several felonies).1
1 The two-prong test of whether a building is an occupied structure found in Pace, 602 N.W.2d at 769, is utilized when the structure is not clearly “adapted for overnight accommodations of persons. See id. (analyzing a porch, stoop, and driveway under the test, and noting that these were appurtenances to the house). See also Sanford, 814 6
Regardless of its poor condition, one of a house’s primary purposes—
abandoned or otherwise—is accommodating people to stay overnight.2 As the
evidence in this case demonstrated, people did occupy the house on an
overnight basis, albeit they were transients who, regardless of the houses
dilapidated condition, sought shelter. Aware of this use, the City had contacted
personnel with an emergency homeless shelter to help board up the site. One
neighbor testified that although the house was boarded up, it had been broken
into on many occasions. Boards would be down and doors open on a fairly
routine basis. The neighbor further stated that in the months before the eventual
demolition of this house, her husband “had ran a few people out of there he seen
going in there” and had called the police.
This testimony aligns with the fact that abandoned houses are notorious
for being “occupied” by trespassers, sometimes in the context of the perfect
shelter to harbor illegal activity. See In re A.K., 825 N.W.2d 46, 53 (Iowa 2013)
(finding juvenile did not commit an assault against victim who followed juvenile to
an abandoned house); State v. Cline, 717 N.W.2d 277, 279 (Iowa 2000) (noting
ongoing drug activity and methamphetamine lab at fire-damaged, uninhabitable
house); State v. Hustead, 538 N.W.2d 867, 869 (Iowa App. 1995) (describing
burglary suspects’ use of an abandoned farm house to harbor stolen property).
The conclusion that an abandoned, seemingly uninhabitable house would fit into
N.W.2d at 615 (applying the test to determine whether a vehicle was an occupied structure). Because a house is the quintessential occupied structure, the two-pronged test set forth in Pace does not apply. 2 We acknowledge the prosecutor, in his closing argument, seemed to concede that the house was no longer adapted for overnight accommodations because it was a “bad house.” However, that comment was not evidence, and we agree with the district court’s determination the State’s case created a jury question as to whether the house was adapted for overnight accommodations. 7
the broad scope of an “occupied structure” squares with the traditional purpose of
our burglary laws, which are “designed primarily to protect against the creation of
a situation dangerous to personal safety caused by unauthorized entry.”
Sanford, 814 N.W.2d at 618 (citation omitted). It is also consistent “with the
fundamental common law concept of burglary as an offense against security of
occupancy,” given that “[t]he laws are primarily designed . . . not to deter the
trespass and the intended crime, which are prohibited by other laws, so much as
to forestall the germination of a situation dangerous to personal safety.” Pace,
602 N.W.2d at 768, 771. Consequently, this record supports that an abandoned
house, even if it is condemned, can and did harbor persons, such that it satisfies
the definition of an occupied structure for the purpose of our burglary statute.3
D. Adapted for Storage or Safekeeping Items of Value
The evidence presented also showed the house satisfied the definition of
“adapted for storage or safekeeping items of value” alternative to “occupied
structure.” At trial, the jury heard testimony regarding certain historical features
of the property. Tina Hochwender, Community Project Coordinator for the City of
Council Bluffs and the individual overseeing the house, testified that the house
contained special historic features, including the carpentry and the fireplace
mantel. When asked why the City took steps to secure the property by boarding
it up, she testified: “Because there were items in the property that were historical
and were trying to be maintained and kept, because we could receive additional
3 We note the legislature has defined an “occupied structure” under section 702.12 broader than a “dwelling” under section 702.10, which is defined as a structure “adapted for overnight accommodation of persons, and actually in use by some person or persons as permanent or temporary sleeping quarters, whether such person is present or not.” 8
financial assistance if there’s historical significance to this site.” This testimony
shows the interior features of the house had historical significance and intrinsic
value. It also had extrinsic value due to the City’s ability to receive more financial
assistance by maintaining those features. Hochwender testified that on many
occasions the City was notified that boards had been removed, “[a]nd so we
assumed someone probably broke in so we would call people and have them
secure the site.” The reason for buying and attempting to protect the house from
intruders was to store and keep safe those historic interior features. Even after
the November 4 fire, while the house was slated for demolition, Hochwender
testified: “People still wanted stuff out of there, so it still had value.”
Furthermore, Iowa case law broadly interprets the language of section
702.12. See State v. Hill, 449 N.W.2d 626, 628 (Iowa 1989) (“By virtue of the
fact that some of the business activities of the automobile parts store were
carried on within the fenced enclosure, and the fact that the store used the
enclosure to store used parts of some value, we find that the enclosure was an
‘occupied structure.’”); State v. Williams, 409 N.W.2d 187, 188–89 (Iowa 1987)
(holding entry into a camper shell mounted on the bed of a pickup truck to
remove tires stored in shell constituted burglary); State v. Sylvester, 331 N.W.2d
130, 132 (Iowa 1983) (holding that “storage or safekeeping of anything of value”
includes “those portions of enclosed delivery trucks containing products to be
carried and delivered. An enclosed delivery truck does not only transport
products; it holds them in safekeeping until they are removed in their turn for
delivery.”). Additionally, this record revealed that Rooney admitted to being at
the property on November 4, “scrapping metal,” after which copper wiring and a 9
cast-iron radiator were missing from the house. Given our case law and the
testimony offered, sufficient evidence supported the conclusion the house was
used for the storage or safekeeping items of value.
E. “Entering” the House
The record also conclusively demonstrated Rooney “entered” the house.
Two unrelated witnesses reported seeing two individuals loading a radiator into a
pickup truck. The investigator for the fire department noticed one of the radiators
from the house was missing. When the pickup truck was eventually discovered
and Rooney was interviewed, Rooney admitted to being at the house “scrapping
metal.” Therefore, considering “all of the record evidence viewed in the light
most favorable to the State, including all reasonable inferences that may be fairly
drawn from the evidence,” Sanford, 814 N.W.2d at 615, a rational jury could
conclude Rooney “entered” the house. Therefore, sufficient evidence supported
the jury’s verdict that Rooney entered an occupied structure.
III. Jury Instructions
Rooney further contends the district court erred in overruling his objection
and submitting to the jury the “adapted for overnight accommodation” and
“storage or safekeeping of anything of value” alternatives for the definition of
“occupied structure.” Challenges to jury instructions are reviewed for correction
of errors at law. State v. Anderson, 636 N.W.2d 26, 30 (Iowa 2011). “Our review
is to determine whether the challenged instruction accurately states the law and
is supported by substantial evidence.” State v. Hanes, 790 N.W.2d 546, 548
(Iowa 2010). 10
As noted above, sufficient evidence supported both the “adapted for
overnight accommodations” and “storage or safekeeping anything of value”
alternatives. Consequently, the district court properly overruled Rooney’s
objection.
IV. Prosecutorial Misconduct
Finally, Rooney contends the district court erred in overruling his motion
for mistrial based on alleged prosecutorial misconduct during closing argument.
Rooney takes issue with the following statement:
You saw what the house was like, and people just—they’re, like, who cares. “Let's go into this house. We don’t need permission. Let’s just go take it.” Okay. So that’s what happened in this particular case except that people do care. They did not have permission. And when he entered with the specific intent to commit a theft and later was discovered and confessed to it, people do care. And that’s why we’re here. Okay. .... With regard to whether or not this case is that big of a deal, okay, ladies and gentlemen, what’s really going on here? Things taken from a vacant house. Who cares? I want to give you a reason to care. Tina Hochwender cared. She was on that stand when she was questioned with regard to this was a vacant old house, was basically a line of questioning. She didn’t appreciate it. She cared about that house. She wanted to see something done with it. She cared that it was broken into. She reported it. She got calls right up to a couple weeks until it was demolished about trying to do something with this house. Okay. So who cares? Tina Hochwender cares about what happens in this case and what the verdict is and what people were doing in this house. So I want to give you a reason to care. With her, and also, ladies and gentlemen, the insinuation that a vacant house cannot be burglarized should offend you. Just because this was a vacant old house doesn’t mean people should be able to enter without authority or permission and take what they wanted. Okay. Vacant houses, people care about vacant houses. People cared about this vacant house. So to say that metal has no value or try to get off on some type of technicality like that, ladies and gentlemen, that should offend you. Burglary, occupied structure, things were deemed an occupied structure such as garages, occupied structure such as 11
storage units, things like that. They are deemed occupied structures. Vacant houses are deemed occupied structures for a reason. That’s so when somebody is alleged to commit a crime, we have jury instructions to give you and a way in order for the elements to be neat in order to prove somebody guilty. So that house was an occupied structure just because it was a vacant house. Don’t not care.
We review rulings on a motion for mistrial for abuse of discretion. State v.
Greene, 592 N.W.2d 24, 30 (Iowa 1999). An abuse of discretion will be found
“where (1) there is misconduct, and (2) the defendant was so prejudiced by the
misconduct as to deprive the defendant of a fair trial.” Id.
We do not agree with Rooney’s contention the prosecutor’s comments
rose to the level of misconduct. The closing argument responded to the
defense’s theory of the case, which argued against the jury finding the
abandoned house to be an “occupied structure” within the meaning of the
burglary statute, and noting how the house was unoccupied and in a state of
disrepair. This was a permissible strategy on the part of the State. See State v.
Thornton, 498 N.W.2d 670, 674 (Iowa 1993) (“A prosecutor is not required to sit
mute and let the defendant’s interpretation of evidence go unchallenged.”). We
therefore conclude no misconduct took place and Rooney was not deprived of a
fair trial. See Greene, 592 N.W.2d at 30. Consequently, we affirm the district
court’s denial of Rooney’s motion for mistrial.
Having considered Rooney’s arguments, we affirm his conviction and
sentence for burglary in the third degree.
Tabor, J., concurs; McDonald, J., dissents. 12
MCDONALD, J., (dissenting)
When viewed in the light most favorable to the State, there is not
substantial evidence this waiting-to-be-bulldozed structure was an “occupied
structure” within the meaning of Iowa Code sections 702.12 and 713.1. The
contrary conclusion ignores the common law foundations of the statute, the
statutory text, controlling authority interpreting the statutory text, and the purpose
of the statute. Accordingly, I respectfully dissent.
“We interpret statutes consistent with common law unless the language of
the statute clearly negates the common law.” State v. Pace, 602 N.W.2d 764,
771 (Iowa 1999). At common law, burglary was “defined as breaking and
entering any dwelling-house by night with intent to commit a felony therein.”
Oliver Wendell Holmes, Jr., The Common Law 74 (Dover Publ’ns, Inc. 1991)
(1881). “The object of punishing such a breaking and entering [was] not to
prevent trespasses, even when committed by night, but only such trespasses as
[were] the first step to wrongs of a greater magnitude, like robbery or murder.”
Id. Burglary at the common law vindicated the “right of habitation,” that is the
right of use. 4 William Blackstone, Commentaries on the Laws of England 223
(1769), available at http://avalon.law.yale.edu/subject_menus/blackstone.asp.
Thus, common law burglary did not include “breaking open of houses wherein no
man resides.” Id. at 225.
Iowa’s earliest criminal code essentially mirrored the common law
formulation of burglary. See, e.g., State v. Jones, 10 Iowa 206, 208 (1859) (“At
common law the intent to commit a felony was necessary to constitute the
offense of burglary; but under our statute the offense is made to consist in 13
breaking and entering any dwelling-house in the night time with intent to commit
the crime of murder, rape, robbery, larceny or any other crime made felony under
our laws.”). Iowa Code section 702.12 expanded the types of structures that can
be subject to burglary beyond mere dwelling houses to include any “building,
structure, appurtenances to buildings and structures, land, water or air vehicle, or
similar place . . . .” By necessity, section 702.12 also expanded the interests
subject to protection beyond the mere right of habitation. The statute now
protects interests in structures “adapted for overnight accommodation of persons,
or occupied by persons for the purpose of carrying on business or other activity
therein, or for the storage or safekeeping of anything of value.” While the scope
of property and uses protected by the burglary statute has expanded, the code
revisions did not alter the purpose for making burglary a criminal act: to protect a
legally cognizable interest in using the place protected.
Our cases interpreting sections 702.12 and 713.1 have reiterated the
requirement that the place must have a statutorily defined purpose or use to
qualify as an “occupied structure.” In State v. Pace, our supreme court stated:
“our definition of an occupied structure has two prongs. The first describes the
type of place that can be the subject of burglary, and the second considers its
purpose or use.” Pace, 602 N.W.2d at 769. The first prong requires evidence
the place is the type of place that can be the subject of burglary. The second
prong requires evidence the structure has some statutorily recognized purpose or
use contemporaneous with entry:
Burglary was never intended to cover all structures, but only those occupied by reason of some activity occurring in the structure. Although our legislature expanded the definition of 14
‘occupied structure’ beyond a common law ‘dwelling house’ concept, it specifically retained the requirement that the subject matter of burglary be occupied in conjunction with some activity which takes place in the structure.
Id. at 771. The contemporaneous purpose or use requirement is consistent “with
the fundamental common law concept of burglary as an offense against security
of occupancy.” Id. The contemporaneous purpose or use requirement set forth
in Pace is not new—our cases have recognized this as an essential element of
the offense for over one hundred years. See e.g., State v. Burns, 80 N.W. 545
(Iowa 1899) (“At the common law, to break and enter a building, other than a
mansion or dwelling house, was not burglary; nor is it under the above statute,
unless the enumerated articles are kept therein for the purposes defined. The
particular use to which the building is put, then, is of the essence of the crime.”
(emphasis added)).
The majority distinguishes Pace on the ground the two-prong test applies
only where it is not obvious the place is adapted for overnight accommodation.
There is nothing in the common law supporting the distinction. Indeed, the
common law is to the contrary. There is nothing in the statutory text supporting
the distinction. On the contrary, the plain language of the text shows the
enumerated purposes qualify each of the enumerated places. See State v.
Newman, 313 N.W.2d 484, 488 (Iowa 1981) (Uhelnhopp, J., dissenting)
(explaining the first part of the statute describes the types of places subject to
burglary and the latter part of the statute qualifies the first). There is nothing in
Pace supporting the distinction. Indeed, the majority’s distinction is directly
contrary to Pace, which provides the place and purpose tests are elements that 15
must be proved in all burglary cases. There is nothing in our case law, generally,
that supports the distinction. Indeed, our courts repeatedly have required the
State to prove an enumerated purpose or use even where the place is the
“quintessential” place protected by statute. See, e.g., State v. Sanford, 814
N.W.2d 611, 616 (Iowa 2012) (stating “[Defendant’s] Dodge Stratus is clearly a
land vehicle. This means that the pivotal issue in this case is whether the second
prong of the definition found in section 702.12 has been satisfied”); State v.
Sangster, 299 N.W.2d 661, 663 (Iowa 1980) (holding evidence was sufficient
where garage was used to store automobile); State v. Sylvester, 331 N.W.2d 130
(Iowa 1983) (applying two-pronged test to delivery truck); Burns, 80 N.W. at 545-
46 (applying two-prong test to a “building, to wit, a printing office” and holding
evidence sufficient where goods, merchandise, and valuable things were kept for
sale”); State v. Dixon, No. 11-1750, 2012 WL 6193877 (Iowa Ct. App. Dec. 12,
2012) (applying two-prong test to automobile). Other courts have conducted a
similar purpose and use analysis when determining whether a house was subject
to burglary. See, e.g., State v. Albert, 426 A.2d 1370, 1373-74 (Me. 1981)
(applying purpose and use test to summer cottage); Trotter v. State, 623 S.W.2d
504, 505 (Tex. Ct. App. 1981) (applying purpose and use test to mobile home).
I agree with the majority’s attempt to distinguish Pace in one limited
sense. In the typical case, a house is the quintessential place adapted for
overnight accommodation or one of the other enumerated purposes. In the
typical case, it is thus very easy for the State to prove the house at issue was
adapted for overnight accommodation or used for one of the other enumerated
purposes. The majority errs, however, in concluding that because it is typically 16
easy for the State to prove a house is used for an enumerated purpose, then
purpose is no longer an element of the offense. As set forth above, that
conclusion is contrary to controlling authority. That conclusion is also not
consistent with the jury instruction given in this case, in which the jury was
instructed the State was required to prove beyond a reasonable doubt this house
was used for a particular purpose. Taken to its final conclusion, the majority’s
interpretation of Pace would require the jury be instructed that a house, as a
matter of law, is a place adapted for overnight accommodation. Given my
conclusion that the State must prove a statutorily recognized purpose or use at
the time of entry, I cannot conclude there is substantial evidence supporting the
verdict.
The State contends the property was adapted for overnight
accommodation of persons. On the date Rooney allegedly burgled the property,
it is not disputed the property was not habitable. The majority sets forth with
sufficient detail the physical condition of the property. Three things should be
emphasized, however. First, the City had boarded the house with plywood to
prevent people from entering the property because the City was not using, nor
did it want to use, the property for overnight accommodation. Second, on the
offense date, the property already was past a scheduled demolition date. Third,
the property was demolished several days after the offense date. Thus, at the
time of Rooney’s entry, the City had no intent to use the property for overnight
accommodation.
The majority seems to take the position that because “[o]ne of a house’s
primary purposes—abandoned or otherwise—is accommodating people to stay 17
overnight,” then a house is by definition an occupied structure. This is contrary to
the common law rule that burglary did not include “breaking open of houses
wherein no man resides.” 4 Blackstone at 225. This is contrary to the
contemporaneous purpose or use requirement set forth in over one hundred
years of precedent as articulated in Burns and Pace. This is contrary to the
rationale for making burglary a criminal act, which is to protect activity and use
inside the building and not just the building itself. See Pace, 602 N.W.2d at 768
(stating burglary “was not designed to protect property or ownership, [but] rather
the notion that people should be able to feel secure in their homes”). This is
contrary to our rules of statutory construction. The majority’s interpretation
renders the contemporaneous purpose or use requirement in the statute a nullity.
If the statute does not require proof of purpose or use contemporaneous with
entry, then the statutory qualifications serve no independent purpose. See State
v. Nicoletto, 845 N.W.2d 421, 427 (Iowa 2014 (“[W]e interpret statutes in a
manner to avoid absurd results and to avoid rendering any part of an enactment
superfluous.”)
The majority also relies on the “fact that abandoned houses are notorious
for being ‘occupied’ by trespassers, sometimes in the context of the perfect
shelter to harbor illegal activity,” as evidence abandoned houses are occupied
structures. While it may be true that some abandoned properties are so used, to
conclude that all or even substantially all are so used appears to be an
adjudicative fact of which we should not take judicial notice. See State v.
Stevens, 719 N.W.2d 547, 550 (Iowa 2006) (“To be capable of being judicially
noticed, a matter must be of common knowledge or capable of certain 18
verification.” (citation omitted)). Second, and related, the conclusion suffers the
fallacy of division. We cannot soundly conclude this particular building was
occupied by trespassers merely because some other abandoned buildings may
be occupied by trespassers. Finally, the fact trespassers may use abandoned
properties, in general, and may have used this property, in particular, is not
relevant. “[B]urglary is an invasion of the possessory property rights of another
. . . .” State v. Hagedorn, 679 N.W.2d 666, 671 (Iowa 2004) (citation omitted);
see Pace, 602 N.W.2d at 768 (stating burglary is not intended to protect
property); State v. Morrisey, 22 Iowa 158, 160 (Iowa 1867) (holding the injury to
be protected is to the owner of the property); State v. Tyerman, No. 09-0113,
2010 WL 787935, at * 12 (Iowa Ct. App. Mar. 10, 2010) (stating the purpose of
the burglary law is to protect the person with custody and control of the property
(citation omitted)). The statutory requirement of contemporaneous purpose or
use refers to the purpose or use put to the property by the party with a legally
cognizable interest in the property. Trespassers have no cognizable interest in
this property; their use of the property is immaterial.
The only evidence material to the overnight accommodation prong was
the City—the entity with legal interest in the property—had concluded the
property was not suitable for overnight accommodation, had boarded up the
property to prevent the property being used for overnight accommodation, and
had entered into an agreement to raze the property. Although his statement to
the jury is not evidence, it should be noted the prosecutor concluded there was
insufficient evidence supporting the overnight accommodation prong and the
purpose of the statute was not to protect past purposes or uses: 19
I’m kind of more of a cut to the chase type of guy. This was a bad house. Nobody was living there. I’m not saying it was adapted for accommodations. I couldn’t say why don’t you guys find for me on that element because at one time it was adapted for overnight accommodations. That’s not what the law is designed to [do]. I don’t think that really is fair here.
The prosecutor’s statement to the jury was correct. There is nothing in the
record to support the verdict on this ground.
The State argues the property was an occupied structure because the
property was being used for storage or safekeeping things of value. The State
argues that because the evidence showed the structure had fixtures or
components (wiring, metal, mantel) with scrap value, then the structure was used
for the storage or safekeeping things of value. The fact the house itself had
scrap value is not material to the question of whether the house was adapted “for
the storage or safekeeping of anything of value.” The common understanding of
the phrase “adapted for storage or safekeeping of anything of value” would seem
to mean storing or safekeeping something of value inside the structure but
separate and distinct from the structure. In common usage, one would not state
she “stores” her copper wiring within the walls of her home; the copper is part
and parcel of the structure itself and not something placed for storage or
safekeeping in the structure.
Even assuming, however, that there were fixtures of other parts of this
property that were effectively being stored or maintained, the City was no longer
using this property for this purpose on the date of the offense. On the date of the
offense, the building was past its scheduled demolition date. While Hochwender
testified the City previously had tried to salvage items from the property, it had 20
abandoned those plans by the offense date. Hochwender testified no person
went to retrieve anything of value between the offense date and the date of
demolition. The fact the building was demolished without the alleged things of
value being retrieved is contrary to the concept of “storing” and “safekeeping,”
both of which connote keeping the items for future use rather than destruction.
See Webster’s Third New Int’l Dictionary 1998 (1993) (defining “safekeeping” as
“the act or process of preserving in safety from injury, loss, or escape.”); see
Storage Definition, Merriam-Webster, www.merriam-
webster.com/dictionary/storage (last visited August 11, 2014)
(defining “storage” as “the act of storing: the state of being stored; especially: the
safekeeping of goods in a depository (as a warehouse)”). See also Pace, 602
N.W.2d at 772 (“Additionally, the word “storage” connotes some degree of
permanency, not transience.”).
The cases from other jurisdictions upon which the State relies are
distinguishable. In Askew v. Commonwealth, No. 2008-CA-000240-MR, 2009
WL 875059, at *2 (Ky. Ct. App. Apr. 3, 2009), the court affirmed a burglary
conviction where the defendant burgled “an uninhabited, dilapidated, condemned
house.” However, Kentucky’s burglary statute defined “building” as “any
structure that meets the definition of a building as used in common parlance,
including abandoned, uninhabitable, and condemned structures” Id. at *1.
Unlike Iowa, Kentucky law does not require proof of “activity which takes place in
the structure.” See Pace, 602 N.W.2d at 771. In Herrick v. State, 965 P.2d 844
(Kan. Ct. App. 1998), the court affirmed a burglary conviction regarding a
dilapidated home, but not so dilapidated, as here, that it raised the issue of 21
whether it could be used as a human habitation. See id. at 848. Further, the
court noted its burglary statute had a “broad definition” and it was sufficient to
show the building at one point in time “was intended for use as a home.” Id. at
847. In contrast, our cases hold there must be some use or purpose
contemporaneous with the offense. See Pace, 602 N.W.2d at 771. The last
case relied on by the State, State v. Kowski, 423 N.W.2d 706, 707 (Minn. Ct.
App. 1988), involved the burglary of an under-construction summer cabin used
by the victim as a temporary residence. The burglary statute in Kowski
encompassed buildings used as a “permanent or temporary residence.” 423
N.W.2d at 709. I conclude such a structure would fall within the ambit of the
burglary statute because the structure was to be used as a place for overnight
accommodation. In our case, however, the property owner concluded the
property no longer had any use, unless waiting for demolition is considered a
use.
Finally, the State argues the failure to include dilapidated buildings as
falling within the burglary statute will incent crime against blighted property.
While that policy consideration is important, the State’s fear is overstated. First,
the facts of this case are limiting. Second, and related, there is a material
distinction between blighted property and property scheduled for demolition. In
the latter case, the person with a cognizable interest in the property determined
the property no longer has a purpose or use of any sort. Third, the State’s
argument is premised on a false dichotomy: either Rooney’s acts constituted
burglary or the acts are not subject to criminal sanction. Other criminal
statutes—including, for example, theft, criminal mischief, and trespass—can be 22
used to advance the State’s interest in protecting blighted properties. Likewise,
other criminal statutes can be used to protect the State’s interest in deterring
conduct that may occur in blighted property.
As a general rule, “acts are rendered criminal because they are done
under circumstances in which they will probably cause some harm which the law
seeks to prevent.” Holmes at 75. “The test of criminality in such cases is the
degree of danger shown by experience to attend that act under those
circumstances.” Id. The act of burglary is rendered criminal to protect a legal
interest in the use of the place subject to protection. Where, as here, the
possessor concluded the property had no purpose or use and had contracted for
the property’s destruction, the harm the law seeks to prevent no longer exists.
Accordingly, I respectfully dissent.