IN THE COURT OF APPEALS OF IOWA
No. 19-2039 Filed September 23, 2020
STATE OF IOWA, Plaintiff-Appellee,
vs.
NEAL CYMONE JOHNSON, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Linn County, Paul D. Miller, Judge.
Neal Johnson appeals following his conviction of burglary in the second
degree. AFFIRMED.
Martha J. Lucey, State Appellate Defender, and Robert P. Ranschau,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Zachary Miller, Assistant Attorney
General, for appellee.
Considered by Vaitheswaran, P.J., and Tabor and Schumacher, JJ. 2
SCHUMACHER, Judge.
A jury found Neal Cymone Johnson guilty of burglary in the second degree,
in violation of Iowa Code sections 713.1, 713.5 (2017). On appeal, Johnson
asserts the State failed to present sufficient evidence at trial to prove he acted with
the specific intent to commit sexual abuse.
I. Background Facts & Proceedings
During the late morning in December 2017, S.M. was in her apartment,
located in Cedar Rapids. From the kitchen, she heard a knock at the door. On the
other side of the door was her neighbor, Johnson. At the time, Johnson was living
with his girlfriend, S.R., in an apartment on the same floor as S.M. S.M. was
unfamiliar with Johnson except for their brief encounters around the apartment
building.
S.M. cracked her door about a foot wide. Johnson was mumbling and not
wearing any clothing from the waist down. Unable to understand Johnson, S.M.
asked what he was doing. Johnson then began pushing on the door. S.M.
attempted to stop him, putting her foot behind the door. As Johnson continued to
push, he stated, “I’m going to—I want to eat your pussy.” Johnson continued
pushing and was able to make it a few feet into S.M.’s apartment. S.M. screamed
for help and continued to resist Johnson. After approximately two minutes,
Johnson turned and ran toward his girlfriend’s apartment.
S.M. called the police to report what had happened. Officers Zach Jeffries
and Tyler Drabenstot arrived a few minutes later. Officer Drabenstot spoke with
S.M., and Officer Jeffries spoke to S.M.’s neighbor, Deborah Osborne. Both
officers went to S.R.’s apartment to speak with Johnson. S.R. let them in. While 3
speaking with the officers, Johnson mentioned, “he knew he shouldn’t have done
it, it was an improper thing to do.” Johnson was arrested and charged with burglary
in the second degree. After a trial, a jury found him guilty.
II. Discussion
At trial, Johnson moved for a motion for judgment of acquittal arguing the
State had not provided sufficient evidence to prove that he acted with the specific
intent to commit sexual abuse. The claimed error is preserved, and he renews it
on appeal. See State v. Truesdell, 679 N.W.2d 611, 615 (Iowa 2004).
We review sufficiency of the evidence claims for a correction of errors at
law. State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012). A jury verdict is binding
upon this court and will be upheld unless it is not supported by substantial
evidence. Id. Evidence is 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. The jury is “free to reject certain evidence and credit other
evidence.” Id. (citation omitted). We consider all evidence in the record, including
all reasonable inferences therefrom, not just the evidence supporting guilt. Id.
For the jury to find Johnson guilty of burglary in the second degree, the State
had the burden of proving beyond a reasonable doubt the following elements:1
1. On or about December 2, 2017, the Defendant entered into [S.M.]’s apartment. 2. [S.M.]’s apartment was an occupied structure as defined in Instruction No. 19. 3. The Defendant did not have permission or authority to enter into [S.M.]’s apartment.
1 When a jury is instructed without objection, the jury instructions become “the law of the case for the purposes of reviewing the sufficiency of the evidence.” State v. Banes, 910 N.W.2d 634, 640 (Iowa Ct. App. 2018). Here, Johnson did not object to any instructions, so all of the jury instructions are the law of the case. See id. 4
4. [S.M.]’s apartment was not open to the public. 5. The Defendant did so with the specific intent to commit sexual abuse. 6. During the incident, [S.M.] was present in her apartment.
Johnson solely challenges the sufficiency of the evidence presented to
prove the fifth element, that he acted with the specific intent to commit sexual
abuse. The jury was instructed as to the meaning of specific intent as follows:
“Specific intent” means not only being aware of doing an act and doing voluntarily, but in addition, doing it with a specific purpose in mind. Because determining the Defendant’s specific intent requires you to decide what he was thinking when an act was done, it is seldom capable of direct proof. Therefore, you should consider the facts and circumstances surrounding the act to determine the Defendant’s specific intent. You may, but are not required to, conclude a person intends the natural results of his acts.
The jury was instructed as to the meaning of “sexual abuse” as follows: “‘Sexual
abuse’ is defined as any sex act between persons is sexual abuse by either of the
persons when the act is performed with the other person and the act is done by
force or against the will of the other.” The jury was instructed as to the meaning of
“sex act” as follows:
“Sex act” means any sexual contact: 1. By penetration of the penis into the vagina or anus. 2. Between the mouth of one person and the genitals of another. 3. Between the genitals of one person and the genitals or anus of another. 4. Between the finger or hand of one person and the genitals or anus of another person.
Johnson’s statements and actions provide sufficient evidence for a jury to
find that he entered S.M.’s apartment with the specific intent to engage in sexual
abuse.
A defendant acts with the specific intent to commit sexual abuse if 5
[t]he overt act . . . reach[es] far enough towards the accomplishment, toward the desired result, to amount to the commencement of the consummation, not merely preparatory. It need not be the last proximate act to the consummation of the offense attempted to be perpetrated, but it must approach sufficiently near it to stand either as the first or some subsequent step in a direct movement towards the commission of the offense after the preparations are made.
State v. Kelso-Christy, 911 N.W.2d 663, 668 (Iowa 2018) (alterations and omission
in original) (quoting State v. Radeke, 444 N.W.2d 476, 478 (Iowa 1989)).
As the jury was so instructed, intent may be inferred from the defendant’s
“words . . . and actions in light of surrounding circumstances.” Radeke, 444
N.W.2d at 478 (quoting W. La Fave & A. Scott, Handbook on Criminal Law § 3.5(f),
at 226 (2d ed. 1986)).
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IN THE COURT OF APPEALS OF IOWA
No. 19-2039 Filed September 23, 2020
STATE OF IOWA, Plaintiff-Appellee,
vs.
NEAL CYMONE JOHNSON, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Linn County, Paul D. Miller, Judge.
Neal Johnson appeals following his conviction of burglary in the second
degree. AFFIRMED.
Martha J. Lucey, State Appellate Defender, and Robert P. Ranschau,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Zachary Miller, Assistant Attorney
General, for appellee.
Considered by Vaitheswaran, P.J., and Tabor and Schumacher, JJ. 2
SCHUMACHER, Judge.
A jury found Neal Cymone Johnson guilty of burglary in the second degree,
in violation of Iowa Code sections 713.1, 713.5 (2017). On appeal, Johnson
asserts the State failed to present sufficient evidence at trial to prove he acted with
the specific intent to commit sexual abuse.
I. Background Facts & Proceedings
During the late morning in December 2017, S.M. was in her apartment,
located in Cedar Rapids. From the kitchen, she heard a knock at the door. On the
other side of the door was her neighbor, Johnson. At the time, Johnson was living
with his girlfriend, S.R., in an apartment on the same floor as S.M. S.M. was
unfamiliar with Johnson except for their brief encounters around the apartment
building.
S.M. cracked her door about a foot wide. Johnson was mumbling and not
wearing any clothing from the waist down. Unable to understand Johnson, S.M.
asked what he was doing. Johnson then began pushing on the door. S.M.
attempted to stop him, putting her foot behind the door. As Johnson continued to
push, he stated, “I’m going to—I want to eat your pussy.” Johnson continued
pushing and was able to make it a few feet into S.M.’s apartment. S.M. screamed
for help and continued to resist Johnson. After approximately two minutes,
Johnson turned and ran toward his girlfriend’s apartment.
S.M. called the police to report what had happened. Officers Zach Jeffries
and Tyler Drabenstot arrived a few minutes later. Officer Drabenstot spoke with
S.M., and Officer Jeffries spoke to S.M.’s neighbor, Deborah Osborne. Both
officers went to S.R.’s apartment to speak with Johnson. S.R. let them in. While 3
speaking with the officers, Johnson mentioned, “he knew he shouldn’t have done
it, it was an improper thing to do.” Johnson was arrested and charged with burglary
in the second degree. After a trial, a jury found him guilty.
II. Discussion
At trial, Johnson moved for a motion for judgment of acquittal arguing the
State had not provided sufficient evidence to prove that he acted with the specific
intent to commit sexual abuse. The claimed error is preserved, and he renews it
on appeal. See State v. Truesdell, 679 N.W.2d 611, 615 (Iowa 2004).
We review sufficiency of the evidence claims for a correction of errors at
law. State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012). A jury verdict is binding
upon this court and will be upheld unless it is not supported by substantial
evidence. Id. Evidence is 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. The jury is “free to reject certain evidence and credit other
evidence.” Id. (citation omitted). We consider all evidence in the record, including
all reasonable inferences therefrom, not just the evidence supporting guilt. Id.
For the jury to find Johnson guilty of burglary in the second degree, the State
had the burden of proving beyond a reasonable doubt the following elements:1
1. On or about December 2, 2017, the Defendant entered into [S.M.]’s apartment. 2. [S.M.]’s apartment was an occupied structure as defined in Instruction No. 19. 3. The Defendant did not have permission or authority to enter into [S.M.]’s apartment.
1 When a jury is instructed without objection, the jury instructions become “the law of the case for the purposes of reviewing the sufficiency of the evidence.” State v. Banes, 910 N.W.2d 634, 640 (Iowa Ct. App. 2018). Here, Johnson did not object to any instructions, so all of the jury instructions are the law of the case. See id. 4
4. [S.M.]’s apartment was not open to the public. 5. The Defendant did so with the specific intent to commit sexual abuse. 6. During the incident, [S.M.] was present in her apartment.
Johnson solely challenges the sufficiency of the evidence presented to
prove the fifth element, that he acted with the specific intent to commit sexual
abuse. The jury was instructed as to the meaning of specific intent as follows:
“Specific intent” means not only being aware of doing an act and doing voluntarily, but in addition, doing it with a specific purpose in mind. Because determining the Defendant’s specific intent requires you to decide what he was thinking when an act was done, it is seldom capable of direct proof. Therefore, you should consider the facts and circumstances surrounding the act to determine the Defendant’s specific intent. You may, but are not required to, conclude a person intends the natural results of his acts.
The jury was instructed as to the meaning of “sexual abuse” as follows: “‘Sexual
abuse’ is defined as any sex act between persons is sexual abuse by either of the
persons when the act is performed with the other person and the act is done by
force or against the will of the other.” The jury was instructed as to the meaning of
“sex act” as follows:
“Sex act” means any sexual contact: 1. By penetration of the penis into the vagina or anus. 2. Between the mouth of one person and the genitals of another. 3. Between the genitals of one person and the genitals or anus of another. 4. Between the finger or hand of one person and the genitals or anus of another person.
Johnson’s statements and actions provide sufficient evidence for a jury to
find that he entered S.M.’s apartment with the specific intent to engage in sexual
abuse.
A defendant acts with the specific intent to commit sexual abuse if 5
[t]he overt act . . . reach[es] far enough towards the accomplishment, toward the desired result, to amount to the commencement of the consummation, not merely preparatory. It need not be the last proximate act to the consummation of the offense attempted to be perpetrated, but it must approach sufficiently near it to stand either as the first or some subsequent step in a direct movement towards the commission of the offense after the preparations are made.
State v. Kelso-Christy, 911 N.W.2d 663, 668 (Iowa 2018) (alterations and omission
in original) (quoting State v. Radeke, 444 N.W.2d 476, 478 (Iowa 1989)).
As the jury was so instructed, intent may be inferred from the defendant’s
“words . . . and actions in light of surrounding circumstances.” Radeke, 444
N.W.2d at 478 (quoting W. La Fave & A. Scott, Handbook on Criminal Law § 3.5(f),
at 226 (2d ed. 1986)). Sufficient evidence to prove the specific intent to commit
sexual abuse includes “sexual comment, touching in a sexual manner, attempt to
remove clothing, or an act in any other way which would indicate a plan to engage
in sexual activity.” State v. Most, 578 N.W.2d 250, 254 (Iowa Ct. App. 1998) (citing
State v. Casady, 491 N.W.2d 782, 787 (Iowa 1992)); see also State v. Jandreau,
No. 13-0031, WL 667690, at *3 (Iowa Ct. App. Feb. 19, 2014) (finding sufficient
evidence for the specific intent to commit sexual abuse where when police found
defendant and victim the defendant had his pants off).
S.M. testified that Johnson was not wearing any clothing below the waist
when he came to her door.2 Johnson pushed on the door while S.M. resisted.
2 Other evidence presented at trial showed Johnson was nude below the waist. Although she did not report seeing Johnson to responding Officer Jeffries on the day in question, Osborne testified at trial that after she heard S.M.’s screams, she looked out of her apartment and saw Johnson without any pants. Additionally, Officer Jeffries testified that he overheard S.M. telling Officer Drabenstot that Johnson had not been wearing pants when he came to her door. 6
While pushing his way into her apartment, S.M. testified that Johnson stated, “I’m
going to—I want to eat your pussy.” S.M. screamed for help, and Johnson
relinquished. When police later met with Johnson, Officer Jeffries testified that
Johnson mentioned, “he knew he shouldn’t have done it, it was an improper thing
to do.”
Viewing the evidence in the light most favorable to the State, we find the
record contains sufficient evidence for a rational jury to find Johnson had the
specific intent to commit sexual abuse when he entered S.M.’s apartment.
III. Conclusion
As we find the State provided sufficient evidence to support the jury’s finding
that Johnson acted with the requisite specific intent to commit sexual abuse, we
uphold his conviction of second-degree burglary.
AFFIRMED.