IN THE COURT OF APPEALS OF IOWA
No. 15-1834 Filed November 9, 2016
STATE OF IOWA, Plaintiff-Appellee,
vs.
ETHAN ARON MILLER, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Cerro Gordo County, James M.
Drew, Judge.
Ethan Miller appeals after a jury found him guilty of first-degree arson,
first-degree burglary, second-degree theft, and possession of marijuana.
CONVICTIONS AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
WITH DIRECTIONS.
Mark C. Smith, State Appellate Defender, and Maria Ruhtenberg,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Kyle Hanson, Assistant Attorney
General, for appellee.
Considered by Potterfield, P.J., and Doyle and Tabor, JJ. 2
DOYLE, Judge.
Ethan Miller appeals after a jury found him guilty of first-degree arson,
first-degree burglary, second-degree theft, and possession of marijuana. He
argues there is insufficient evidence to prove he committed crimes stemming
from a fire at his employer’s place of business. In a pro se brief, Miller argues
the prosecutor engaged in misconduct. Upon our review, we reverse Miller’s
first-degree-burglary conviction and remand the case to the district court for entry
of judgment on the lesser-included offense of second-degree burglary. We affirm
in all other respects.
I. Background Facts and Proceedings.
A fire was intentionally set in a Mason City Subway store during the early
morning hours of December 29, 2014. In addition to more than half a million
dollars in damage to the business caused by the fire, approximately $1700 was
discovered missing from the store’s safe. Because there was no evidence that
the safe had been pried open, the investigation immediately focused on those
who had access to it. Eventually, the State charged Miller, a Subway employee,
in connection with the crimes, and a jury found Miller guilty as charged. Miller
now appeals.
II. Sufficiency of the Evidence.
We review challenges to the sufficiency of the evidence supporting a
verdict for correction of errors at law. See State v. Schlitter, 881 N.W.2d 380,
388 (Iowa 2016). In doing so, we view all of the record evidence in the light most
favorable to the State and draw all reasonable inferences in the State’s favor.
See State v. Howse, 875 N.W.2d 684, 688 (Iowa 2016). If substantial evidence 3
supports the verdict, we will uphold it. See id. Evidence is substantial if it could
conceivably lead a rational jury to find the defendant guilty beyond a reasonable
doubt. See id. Evidence is not substantial if it only raises suspicion, speculation,
or conjecture. See id.
A. Identity.
Miller challenges the sufficiency of the evidence showing he committed
the acts that form the bases of his convictions. He argues the evidence showing
that he was the person who entered the Subway store on December 29, took
$1700 in cash from the safe, and set fire to the store is nothing more than
speculation. We disagree.
The evidence presented at trial shows Miller learned the code to the
Subway store’s safe as part of his training to open the store after Subway hired
him in November 2014. Miller learned how to close the store less than a week
before the fire, and he closed it by himself for the first time on December 27.
That night, Miller voided two sales and surveillance video shows that he took
money from the register drawer and placed it in his pocket. Before leaving the
store on December 27, Miller twice attempted to turn off the surveillance system
before following its power cord to ascertain its power source.
The following night, Miller again closed the Subway store. The
surveillance video captured Miller counting money on top of the safe in an
apparent attempt to obscure the camera’s view. The video also shows that after
Miller set the security bar on the back door, he shut the store’s lights off, returned
to the back door to readjust the security bar, and disappeared into the shadows
near the store’s electrical breaker box. 4
At 3:30 a.m., hours after Miller closed the store, the surveillance video
recorded a person entering the back door of the store before turning toward the
breaker box. The security video ends a moment later when the power source
was lost. The person seen entering the store at 3:30 a.m. appeared similar in
size to Miller, who is six feet and one inch tall, while the other Subway employees
who knew the safe’s code were no taller than five feet and eight inches in height.
The evidence also shows that Miller had been experiencing financial
difficulties in December 2014. Miller overdrew his account by more than $150 at
one point that month. The day before the fire was set, his account balance was
$20.89. While executing a search warrant, police officers discovered
approximately $400 in small bills inside the center console of Miller’s car and
approximately $1700 in large bills inside a Clear Lake Bank Envelope hidden in
the rafters of the basement near Miller’s bedroom. Officers also smelled a
“campfire smell” around Miller’s bedroom and the laundry room.
While in jail after his arrest, Miller spoke to David Freie, another inmate,
about the charges pending against him. Miller told Freie that he intentionally set
the store’s back door to allow him to easily regain entrance, shut off the power to
the surveillance system after reentering later that night, and started a fire to
destroy evidence of his theft from the safe. Miller also told Freie information that
law enforcement had not yet discovered: that Miller had gone to his bank and
exchanged the money he took from the safe, which had been in small
denominations,1 for larger denominations of currency. Following up on this
information, law enforcement discovered that on December 31, Miller went to
1 The Subway store did not accept currency in denominations larger than $20. 5
Clear Lake Bank and deposited a check, withdrew $408 in cash, and exchanged
approximately $1000 in bills of small denominations for bills in larger
denominations.
Although the Subway surveillance video did not clearly show the face of
the intruder, the State presented circumstantial evidence of Miller’s guilt. Our
supreme court has made it clear that direct and circumstantial evidence are
equally probative for purposes of proving a defendant’s guilt beyond a
reasonable doubt. See State v. Bentley, 757 N.W.2d 257, 262 (Iowa 2008).
Here, the circumstantial evidence presented to the jury—and the inferences
drawn from it—provide overwhelming evidence of Miller’s guilt.
B. Occupied Structure.
Miller also challenges the sufficiency of the evidence to support his
conviction of first-degree burglary, arguing the store did not meet the definition of
an occupied structure as charged. Because his trial counsel did not raise this
issue in a motion for judgment of acquittal, see State v.
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IN THE COURT OF APPEALS OF IOWA
No. 15-1834 Filed November 9, 2016
STATE OF IOWA, Plaintiff-Appellee,
vs.
ETHAN ARON MILLER, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Cerro Gordo County, James M.
Drew, Judge.
Ethan Miller appeals after a jury found him guilty of first-degree arson,
first-degree burglary, second-degree theft, and possession of marijuana.
CONVICTIONS AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
WITH DIRECTIONS.
Mark C. Smith, State Appellate Defender, and Maria Ruhtenberg,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Kyle Hanson, Assistant Attorney
General, for appellee.
Considered by Potterfield, P.J., and Doyle and Tabor, JJ. 2
DOYLE, Judge.
Ethan Miller appeals after a jury found him guilty of first-degree arson,
first-degree burglary, second-degree theft, and possession of marijuana. He
argues there is insufficient evidence to prove he committed crimes stemming
from a fire at his employer’s place of business. In a pro se brief, Miller argues
the prosecutor engaged in misconduct. Upon our review, we reverse Miller’s
first-degree-burglary conviction and remand the case to the district court for entry
of judgment on the lesser-included offense of second-degree burglary. We affirm
in all other respects.
I. Background Facts and Proceedings.
A fire was intentionally set in a Mason City Subway store during the early
morning hours of December 29, 2014. In addition to more than half a million
dollars in damage to the business caused by the fire, approximately $1700 was
discovered missing from the store’s safe. Because there was no evidence that
the safe had been pried open, the investigation immediately focused on those
who had access to it. Eventually, the State charged Miller, a Subway employee,
in connection with the crimes, and a jury found Miller guilty as charged. Miller
now appeals.
II. Sufficiency of the Evidence.
We review challenges to the sufficiency of the evidence supporting a
verdict for correction of errors at law. See State v. Schlitter, 881 N.W.2d 380,
388 (Iowa 2016). In doing so, we view all of the record evidence in the light most
favorable to the State and draw all reasonable inferences in the State’s favor.
See State v. Howse, 875 N.W.2d 684, 688 (Iowa 2016). If substantial evidence 3
supports the verdict, we will uphold it. See id. Evidence is substantial if it could
conceivably lead a rational jury to find the defendant guilty beyond a reasonable
doubt. See id. Evidence is not substantial if it only raises suspicion, speculation,
or conjecture. See id.
A. Identity.
Miller challenges the sufficiency of the evidence showing he committed
the acts that form the bases of his convictions. He argues the evidence showing
that he was the person who entered the Subway store on December 29, took
$1700 in cash from the safe, and set fire to the store is nothing more than
speculation. We disagree.
The evidence presented at trial shows Miller learned the code to the
Subway store’s safe as part of his training to open the store after Subway hired
him in November 2014. Miller learned how to close the store less than a week
before the fire, and he closed it by himself for the first time on December 27.
That night, Miller voided two sales and surveillance video shows that he took
money from the register drawer and placed it in his pocket. Before leaving the
store on December 27, Miller twice attempted to turn off the surveillance system
before following its power cord to ascertain its power source.
The following night, Miller again closed the Subway store. The
surveillance video captured Miller counting money on top of the safe in an
apparent attempt to obscure the camera’s view. The video also shows that after
Miller set the security bar on the back door, he shut the store’s lights off, returned
to the back door to readjust the security bar, and disappeared into the shadows
near the store’s electrical breaker box. 4
At 3:30 a.m., hours after Miller closed the store, the surveillance video
recorded a person entering the back door of the store before turning toward the
breaker box. The security video ends a moment later when the power source
was lost. The person seen entering the store at 3:30 a.m. appeared similar in
size to Miller, who is six feet and one inch tall, while the other Subway employees
who knew the safe’s code were no taller than five feet and eight inches in height.
The evidence also shows that Miller had been experiencing financial
difficulties in December 2014. Miller overdrew his account by more than $150 at
one point that month. The day before the fire was set, his account balance was
$20.89. While executing a search warrant, police officers discovered
approximately $400 in small bills inside the center console of Miller’s car and
approximately $1700 in large bills inside a Clear Lake Bank Envelope hidden in
the rafters of the basement near Miller’s bedroom. Officers also smelled a
“campfire smell” around Miller’s bedroom and the laundry room.
While in jail after his arrest, Miller spoke to David Freie, another inmate,
about the charges pending against him. Miller told Freie that he intentionally set
the store’s back door to allow him to easily regain entrance, shut off the power to
the surveillance system after reentering later that night, and started a fire to
destroy evidence of his theft from the safe. Miller also told Freie information that
law enforcement had not yet discovered: that Miller had gone to his bank and
exchanged the money he took from the safe, which had been in small
denominations,1 for larger denominations of currency. Following up on this
information, law enforcement discovered that on December 31, Miller went to
1 The Subway store did not accept currency in denominations larger than $20. 5
Clear Lake Bank and deposited a check, withdrew $408 in cash, and exchanged
approximately $1000 in bills of small denominations for bills in larger
denominations.
Although the Subway surveillance video did not clearly show the face of
the intruder, the State presented circumstantial evidence of Miller’s guilt. Our
supreme court has made it clear that direct and circumstantial evidence are
equally probative for purposes of proving a defendant’s guilt beyond a
reasonable doubt. See State v. Bentley, 757 N.W.2d 257, 262 (Iowa 2008).
Here, the circumstantial evidence presented to the jury—and the inferences
drawn from it—provide overwhelming evidence of Miller’s guilt.
B. Occupied Structure.
Miller also challenges the sufficiency of the evidence to support his
conviction of first-degree burglary, arguing the store did not meet the definition of
an occupied structure as charged. Because his trial counsel did not raise this
issue in a motion for judgment of acquittal, see State v. Ross, 845 N.W.2d 692,
700 (Iowa 2014) (“Trial counsel is required to make a specific objection in his or
her motion for judgment of acquittal in order to preserve error.”), Miller presents
his argument under the ineffective-assistance-of-counsel rubric, see State v.
Ondayog, 722 N.W.2d 778, 784 (Iowa 2006) (noting that ineffective assistance of
counsel claims are an exception to the general rule of error preservation). To
prevail on a claim of ineffective assistance of counsel, Miller must show his trial
counsel failed to perform an essential duty and that he was prejudiced by this
failure. See State v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008). 6
Burglary occurs when a person enters an occupied structure without the
right to do so and with the intent to commit a felony. See Iowa Code § 713.1
(2013). In order to be first-degree burglary, the burglary must occur “in or upon
an occupied structure in which one or more persons are present.” Id. § 713.3(1).
Here, there was no evidence of anyone inside the Subway store at the time of
the burglary.
The State concedes the proof does not conform to the definition of first-
degree burglary. Therefore, counsel breached a duty to move for acquittal on
this basis, which resulted in prejudice to Miller. Cf. Ross, 845 N.W.2d at 706
(finding Ross received ineffective assistance of counsel because his trial counsel
failed to move for a judgment of acquittal on three counts of intimidation with a
dangerous weapon with intent that were not supported by the evidence and
resulted in three additional felony convictions). Miller’s first-degree burglary
conviction is reversed, and we remand to the district court for entry of judgment
on the lesser-included offense of second-degree burglary.
III. Prosecutorial Misconduct.
In a pro se brief, Miller also argues that the prosecutor engaged in
misconduct that prejudiced him. Specifically, he alleges the prosecutor suborned
perjury from an investigating officer regarding the discovery of certain evidence.
Miller also alleges the prosecutor misrepresented the State’s burden of proof by
implying he was required to prove his innocence. Miller failed to raise these
claims before the trial court and did not receive a ruling on them. Therefore, his
claims are not properly before us on appeal. See State v. McCright, 569 N.W.2d 7
605, 607 (Iowa 1997) (“Issues not raised before the district court . . . cannot be
raised for the first time on appeal.”).
IV. Conclusion.
We affirm Miller’s convictions and his sentences for first-degree arson,
second-degree theft, and possession of marijuana. We reverse Miller’s
conviction of first-degree burglary and remand to the district court to enter
judgment on the lesser-included offense of second-degree burglary.
CONVICTIONS AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED WITH DIRECTIONS.