IN THE COURT OF APPEALS OF IOWA
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No. 25-0447
Filed August 19, 2026
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State of Iowa, Plaintiff–Appellee,
v.
Randal Ross Higgins, Defendant–Appellant.
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Appeal from the Iowa District Court for Dallas County, The Honorable Thomas P. Murphy, Judge.
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AFFIRMED
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Martha J. Lucey, State Appellate Defender, and Ella M. Newell, Assistant Appellate Defender, attorneys for appellant.
Brenna Bird, Attorney General, and Katherine Wenman, Assistant Attorney General, attorneys for appellee.
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Considered without oral argument by Tabor, C.J., Langholz, J., and Telleen, S.J.
Opinion by Langholz, J.
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LANGHOLZ, Judge.
A jury convicted Randal Higgins of third-degree burglary and third-
degree theft for taking two wooden boxes, an Anderson Erickson milk crate, a terracotta pot, and a metal washtub from a brick building on a farmstead. The district court sentenced him as a habitual offender to concurrent indeterminate prison terms of fifteen and two years respectively. Higgins now appeals, challenging his burglary conviction and both of his sentences.
First, Higgins argues there is insufficient evidence to support his burglary conviction because the State failed to prove that the building was an “occupied structure.” And second, he contends the district court considered an improper factor in exercising its sentencing discretion by punishing him for his decision to go to trial rather than plead guilty.
Substantial evidence supports the jury’s verdict that the building Higgins entered was “used for the storage . . . of anything of value” and was thus an occupied structure under the unobjected-to jury instruction. And Higgins has failed to show that the district court considered his decision to go to trial in exercising its sentencing discretion. The court’s consideration of Higgins’s failure to accept responsibility before the sentencing hearing was not improper. We thus affirm Higgins’s conviction and sentences.
I. Background Facts and Proceedings
Ann Kreager is the owner of about 151 acres of land in rural Adel. The property was originally a farmstead that Kreager moved onto with her family more than seventy years ago. The farmhouse was torn down when a highway was built, and Kreager’s son now farms the land. There are still several outbuildings on the property, including a silo, a machine shed, and—key to this case—a brick building that Kreager and her family have used over the
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years for raising chickens, as a garage, and as a “storage area.” That brick building is pictured below.
On a Sunday afternoon in October 2024, a neighbor saw two people in a sport-utility vehicle (“SUV”) he did not recognize coming and going from Kreager’s property. After watching the SUV back up toward the brick building, stay there for about fifteen to twenty minutes, leave, and then return to the building around thirty to forty-five minutes later, the neighbor called Kreager’s son “to make sure he realize[d] there’s a strange vehicle” on the property. And the neighbor’s wife called Kreager. Kreager and her son then drove to the property, where they saw the SUV “backed right up to” the brick building. The SUV had all four doors and its back hatch “wide open.” Kreager stayed in her car while her son got out of his truck and approached the SUV.
As her son approached, he saw a man he did not know “kind of picking up stuff and looking at it off the ground and . . . pitching stuff in the back of the SUV.” Kreager’s son asked the man what he was doing, and the man started arguing with him about who owned the property. A second man— Higgins—then came out of the brick building and joined the argument.
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During the argument, the son called 911. According to the son, the situation “just kind of escalate[d] from there” until there was a physical altercation. Eventually, Higgins told the other man, “We need to get out of here.” Higgins tried to close the back hatch of the SUV, striking the son’s arm with the hatch lid. Then, Higgins got in the driver’s seat, the other man got in the passenger seat, and they drove away with the back hatch still open.
Kreager drove after the SUV as it left her property and called 911 herself. She continued following the SUV until law enforcement officers pulled it over about ten miles away. The officers found two wooden boxes, an Anderson Erickson milk crate, a terracotta pot, and a metal washtub in the back of the SUV. Kreager recognized those items and believed they came from the brick building on her property.
The State charged Higgins with second-degree robbery, third-degree burglary, and third-degree theft. See Iowa Code §§ 711.1, 711.3, 713.1, 713.6A(1), 714.1, 714.2(3) (2024). After a four-day trial, the jury convicted Higgins of the burglary and theft charges but acquitted him of the robbery charge. And the district court sentenced him as a habitual offender to concurrent prison terms not to exceed fifteen years with a three-year mandatory minimum for the burglary count. See id. §§ 902.8, 902.9(1)(c), 903.1(2). Higgins now appeals.
II. Sufficiency of the Evidence Supporting the Burglary Conviction
We review Higgins’s challenge to the sufficiency of the evidence supporting his burglary conviction for correction of errors at law. See State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012). We are bound by the jury’s verdict “if substantial record evidence supports it.” Id. (cleaned up). Evidence is substantial when “it can convince a rational jury that the defendant is guilty
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beyond a reasonable doubt.” Id. It matters not whether the evidence is direct or circumstantial. See State v. Ernst, 954 N.W.2d 50, 57 (Iowa 2021). And in assessing its sufficiency, we view “the evidence in the light most favorable to the State” and make all “legitimate inferences and presumptions that may fairly and reasonably be deduced from the record evidence.” State v. Brown, 5 N.W.3d 611, 615–16 (Iowa 2024) (cleaned up). So even if “the evidence would support a different finding,” that does not mean it is “insubstantial”— “the ultimate question is whether it supports the finding actually made.” Id. at 619 (cleaned up).
Consistent with the requirements of Iowa’s burglary statute, see Iowa Code §§ 713.1, 713.6A(1), the jury was instructed that to convict Higgins of third-degree burglary, the State had to prove:
1. On or about October 27, 2024, Mr. Higgins or a person he aided and abetted entered a building belonging to Ann Kreager.
2. The building was an occupied structure.
3. Mr. Higgins or a person he aided and abetted did not have permission or authority to enter the building.
4. The building was not open to the public.
5. Mr. Higgins entered with the specific intent to commit a theft or he knew that a person he aided and abetted entered with the specific intent to commit a theft.
Higgins challenges only the State’s proof of the second element—that the building he entered was an “occupied structure.”
The statute defines an “occupied structure” in relevant part as “any building . . . 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.” Iowa Code § 702.12.
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This definition “has two prongs.” State v. Pace, 602 N.W.2d 764, 769 (Iowa 1999). The first—undisputed here—“describes the type of place that can be the subject of burglary.” Id. The second prong focuses on the “activity, purpose, or use” for which the place is occupied “at the time of the alleged crime.” State v. Rooney, 862 N.W.2d 367, 376–77 (Iowa 2015). But a person need not be “actually present” for a structure to be occupied. Iowa Code § 702.12.
The activity-purpose-or-use prong “can be met in three alternative ways.” Rooney, 862 N.W.2d at 376; see also Iowa Code § 702.12. While the jury was instructed on all three alternatives, the State only tried to prove one. On that alternative, the court instructed: “A building is an ‘occupied structure’ if it . . . [i]s used for the storage or safekeeping of anything of value unless it is too small or not designed to allow a person to physically enter or occupy it.” Because Higgins did not object to this jury instruction, it is “the law of the case for purposes of reviewing the sufficiency of the evidence.” State v. Mathis, 971 N.W.2d 514, 518 (Iowa 2022).
Higgins argues that the State failed to present substantial evidence from which a jury could find that the building he entered was used for “storage or safekeeping” or that “anything of value” was being stored or safekept there. We disagree.
Used for Storage or Safekeeping. Because neither the jury instruction nor the statute defines the words “storage” or “safekeeping,” we look to their ordinary meaning in context. See State v. Rhodes, 6 N.W.3d 741, 746 (Iowa 2024) (“When the legislature does not define a term in a statute, we look to the context in which the term appears and give it its ordinary and common meaning.” (cleaned up)); State v. Ellison, 985 N.W.2d 473, 482 (Iowa 2023) (“[W]ords used in a jury instruction need not be defined if they
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are of ordinary usage and are generally understood.” (cleaned up)). To be used for storage means, as relevant here, a “space or a place for storing” or for “the act of storing.” Storage, Merriam-Webster’s Collegiate Dictionary 1159 (10th ed. 1997). Storing, in turn, means “lay[ing] away, accummulat[ing]” or “plac[ing] or leav[ing] in a location (such as a warehouse, library, or computer memory) for preservation or later use or disposal.” Store, Merriam- Webster’s Collegiate Dictionary 1159 (10th ed. 1997). Safekeeping, on the other hand, means “the act or process of preserving in safety.” Safekeeping, Merriam-Webster’s Collegiate Dictionary 1030 (10th ed. 1997).
Consistent with this ordinary meaning, our supreme court has also reasoned that “the word ‘storage’ connotes some degree of permanency, not transience.” Pace, 602 N.W.2d at 772. And so, the court has held that evidence of “[t]he occasional presence of a vehicle on a driveway” did not make the driveway an occupied structure under the used-for-storage-orsafekeeping alternative. Id. at 773. The court has also held that an abandoned building was not an occupied structure under that alternative when it “was scheduled for demolition” with “bulldozers on the scene” and without evidence of anything of value stored in it aside from the component parts of the building itself. Rooney, 862 N.W.2d at 378. But “a private garage adjacent to a residence” satisfied the used-for-storage-or-safekeeping alternative when “evidence showed an automobile was stored in the garage.” State v. Sangster, 299 N.W.2d 661, 662–63 (Iowa 1980). So too did “a fenced enclosure behind [an] . . . automobile parts store” when “the store used the enclosure to store used parts of some value.” State v. Hill, 449 N.W.2d 626, 629 (Iowa 1989). And our court held that a crawl space under a mobile home satisfied the alternative when there was evidence that “a wheel and tongue” disconnected from the mobile home were stored in it. State v. Gallimore, No. 06-1408, 2008 WL 1887306, at *3 (Iowa Ct. App. Apr. 30, 2008).
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Applying this framework, we conclude that the State presented substantial evidence from which the jury could find that the brick building was used for storage. Kreager and her son testified that the brick building was most recently used for “storage.” Kreager explained that she is an antique collector and she used the building for “storing antiques.” She recalled that most of the antique items were stolen from the building during prior break- ins. But according to her testimony, there were still “a few items” left, including “clothes hanging on the waterlines” and “some glassware.” She had not abandoned the building, and it was not scheduled to be demolished. Cf. Rooney, 862 N.W.2d at 378. And while she had not visited the building since the fall of 2023, she recognized the items found in Higgins’s SUV in October 2024 and believed that they came from the building. So the jury could have reasonably found that the building was being used to permanently store those items, among others, at the time of the offense.
In arguing otherwise, Higgins focuses much of his attention on the evidence in the record that the building was not secured and thus argues it could not have been used for safekeeping.1 And true, Kreager testified that
1 Higgins also argues that the State needed to prove not just that building was used for storage or safekeeping but that it was “adapted for” that use by being “made or modified as a place for storage or safekeeping.” Pace, 602 N.W.2d at 772; see also Rooney, 862 N.W.2d at 378. But, as the State points out, the jury instruction defining “occupied structure” did not require a finding that the building was “adapted” for storage or safekeeping—it required a finding that the building was “used” for storage or safekeeping. And Higgins did not object to that instruction. So, to the extent Higgins now contends that the State was required to and failed to prove that the building was “adapted” for storage or safekeeping, that error is not preserved. See State v. Crawford, 974 N.W.2d 510, 521 (Iowa 2022) (“If a party fails to alert the district court of the erroneous instructions, he cannot complain that the evidence was insufficient to support a legal proposition contrary to the one instructed to the jury. When that happens, we apply the law as set out in the instructions rather than the applicable law.”).
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the building had been broken into twice before. She recalled: “When it got broken into the first time, they knocked the doors down in the back end and broke windows out. And we repaired it to a certain extent, and then they did the same thing again.” The neighbor testified that he “looked at that brick building to try to secure it better for Ann” after those break-ins, but he did not do any repair work on the building. The neighbor also “said [he] probably wouldn’t have kept anything of value” in the building due to “the shape it was in.” And the jury saw photos of the building taken on the day of the incident in October 2024 that showed what appeared to be a missing door and a broken window.
But even if keeping a building secured might fairly be required to qualify as “safekeeping,” the statute and jury instruction did not require the jury to find that the building was used for safekeeping. The jury could have found that the building was only used for storage because the instruction— like the statute—was phrased in the disjunctive, requiring the State to prove that the building was used for “storage or safekeeping”—not both. Iowa Code § 702.12 (emphasis added). And we see no basis in the ordinary meaning of storage or the governing precedents to impose a requirement that a building be fully secured to qualify as a place of storage.
Anything of Value. As for whether the stored items were “of value,”
Kreager testified that one of the wooden boxes could “probably” sell for $50 to $60, and the Anderson Erickson milk crate was worth “at least $50.” She had also tried to sell the terracotta pot—which belonged to her mother—for $2.25 at a garage sale. While Higgins claims that Kreager’s testimony provided “a significant overvaluation” of the items, it was up to the jury to decide whether to credit her testimony. See Mathis, 971 N.W.2d at 519 (“In considering a challenge to the sufficiency of the evidence, it is not the
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province of the court to resolve conflicts in the evidence, to pass upon the credibility of witnesses, to determine the plausibility of explanations, or to weigh the evidence; such matters are for the jury.” (cleaned up)). And the statute does not require any particular level of value. See Iowa Code § 702.12; see also Hill, 449 N.W.2d at 628 (holding that the used-for-storage-orsafekeeping -of-anything-of-value alternative was satisfied when the stored “used parts” were “of some value” (emphasis added)); State v. Dixon, No. 11-1750, 2012 WL 6193877, at *3 n.1 (Iowa Ct. App. Dec. 12, 2012) (holding that a vehicle satisfied the alternative when it was used for storing “things of value, such as a coffee mug and hat”).
Higgins contends that the supreme court set a high bar for a stored item to be “of value,” when it held that “the used-for-storage-or-safekeeping- of-anything-of-value alternative” was not satisfied when a defendant had stripped copper wires and cast-iron radiators out of an abandoned building. Rooney, 862 N.W.2d at 378. But we do not read the court’s reasoning there as resting on a lack of substantial evidence that the copper and cast iron was “of value.” To the contrary, the court held that “[t]here was substantial evidence in the record that copper wire and cast iron has some scrap value.” Id. The court instead explained that the problem was that the alternative “requires more than the mere fact there is some scrap that might be ripped out of a dilapidated building with some marginal economic value” because if that “were true, every structure that contained a nail or a screw or a plank might be an occupied structure under the statute.” Id. In other words, the copper and cast iron were parts of the building—not something being stored in it. So that case does not control whether the items stored here were “of value.”
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Bottom line, the State presented sufficient evidence to prove that the building on Kreager’s property was used for storage of anything of value and was thus an occupied structure. So we affirm Higgins’s burglary conviction.
III. Consideration of an Improper Factor at Sentencing
Higgins next challenges his burglary and theft sentences, arguing that the court considered an improper sentencing factor—his decision to plead not-guilty and go to trial—when selecting concurrent prison sentences rather than probation.
We review a district court’s discretionary sentencing decisions for an abuse of discretion. See State v. Gordon, 998 N.W.2d 859, 862 (Iowa 2023). This deferential standard of review recognizes that the court’s decision “to impose a particular sentence within the statutory limits is cloaked with a strong presumption in its favor.” State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002). And “our task on appeal is not to second guess the decision made by the district court, but to determine if it was unreasonable or based on untenable grounds.” Id. at 725.
Still, a district court exceeds its discretion—and we must remand for resentencing—when the court relies on an improper factor, “even if it was merely a secondary consideration.” State v. Schooley, 13 N.W.3d 608, 618 (Iowa 2024) (cleaned up). A defendant must “show that the court was not just merely aware of the factor, but that it relied on the factor in determining its sentence.” State v. McCollaugh, 5 N.W.3d 620, 627 (Iowa 2024). And “[w]e will not draw an inference of improper sentencing considerations which are not apparent from the record.” Formaro, 638 N.W.2d at 725.
One such improper factor is a defendant’s decision to plead not-guilty and “put the state to its burden of proving the offense to a jury.” State v.
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West Vangen, 975 N.W.2d 344, 355 (Iowa 2022). But there is nothing improper about considering a defendant’s acceptance of responsibility or, conversely, a defendant’s lack of remorse. See id. at 355–56 (rejecting defendant’s challenge that the district court’s reliance on lack of remorse improperly considered her not-guilty plea when there was other evidence of lack of remorse). “[A] defendant’s lack of remorse is highly pertinent to evaluating his need for rehabilitation and his likelihood of reoffending.” State v. Knight, 701 N.W.2d 83, 88 (Iowa 2005). Thus, “a sentencing court may properly consider this factor, as evidenced by facts other than the defendant’s not-guilty plea, in making a sentencing decision.” Id. “A defendant’s lack of remorse can be discerned by any admissible statement made by the defendant pre-trial, at trial, or post-trial, or by other competent evidence properly admitted at the sentencing hearing.” Id. at 87–88 (cleaned up).
In arguing that the district court should impose prison sentences rather than probation, the State highlighted—among other factors—that Higgins had failed to accept responsibility for the offense. The State pointed to the “defendant’s version of events” in the presentence-investigation report (“PSI”), arguing that “he denie[d] any wrongdoing more or less” and that “the general theme [was] he did nothing wrong” and “had permission” to enter the building. And the State urged that this was “the same thing [the] court heard in the State’s exhibits throughout trial.”
Indeed, Higgins wrote in his written version of events in the PSI that he and his roommate “decided to check out an abandon[ed] property [they] were told about” by an “old friend from high school whose father was a doctor for a Robert Kreager,” but when they got there, a “very aggressive” man confronted them, so they “took off and were chased.” Similarly, video exhibits admitted at trial showed Higgins telling law enforcement officers on
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the day of the offense and the next day that he believed Robert Kreager had owned the building before passing away and that Robert Kreager’s nephew gave Higgins permission to enter the building to take any antiques. He also repeatedly told officers his belief that the building was abandoned. And in her testimony at sentencing, the PSI author acknowledged that Higgins “minimized what he did” in his written version of events, but she also explained “there were other comments that [Higgins] made where he . . . accepted responsibility that [were] not written down.”
Responding to the State’s argument, Higgins told the court during his allocution at sentencing:
Your Honor, I do accept responsibility for what happened . . . . But I was— I was trying not to make excuses. The only excuse I made was my intent. It wasn’t my action. I fully take responsibility for my actions. I feel deeply for Mrs. Kreager, for her notion that she felt . . . violated that day. And that really hit my heart. And . . . I’m being honest about that. I accept full responsibility for what happened that day, and I’m truly sorry to the Kreagers and to the community and to this court.
The district court ultimately relied on Higgins’s failure to take responsibility as one of the reasons for imposing prison sentences. After noting that it had read the PSI and considered other factors, the court explained to Higgins:
You had no business being on this property. And until today, you seemed to suggest that you did. I don’t think that until we’re here facing prison that you’ve accepted responsibility. I don’t think you think you did anything wrong, and I am really appalled at your lack of willingness prior to fear of incarceration today to accept any responsibility for this. I need to get your attention. I have grave concerns about your ability to be successful on probation.
Higgins has failed to show that the district court improperly considered his choice to assert his right to a jury trial rather than properly
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considering his failure to accept responsibility. In the context of the record before the court and the arguments made by the State, the court’s reasoning referred to Higgins’s version of events in the PSI and his statements to law enforcement officers on videos admitted at trial—not Higgins’s not-guilty plea. This was proper evidence from which the court could discern Higgins’s failure to accept responsibility and lack of remorse. See Knight, 701 N.W.2d at 87–88. The district court did not abuse its discretion in considering this factor in selecting Higgins’s sentences.2 See West Vangen, 975 N.W.2d at 355– 56 (reaching a similar conclusion even when the State had urged the court to improperly rely on the defendant “forc[ing] the State to prove her guilt at trial” when the court’s reasoning did not show that it “took the State’s bait”); State v. Miller, 16 N.W.3d 663, 683 (Iowa 2024) (finding no abuse of discretion in the district court’s “assessment of [the defendant’s] remorse or acceptance of responsibility” where the court commented that the defendant “waited until today to show some sort of remorse for the act that [he] committed” and “downplayed [his] role” in the crime). We thus affirm Higgins’s sentences.
AFFIRMED.
2 Higgins also argues that the court’s consideration of his failure to accept responsibility before sentencing implicated his Fifth Amendment right against selfincrimination by punishing him for staying silent. But he cites no authority limiting a court’s consideration of a defendant’s lack of remorse at sentencing for this reason. And even assuming that the Fifth Amendment might sometimes be implicated, it is not here. The court did not rely on Higgins’s silence in finding he failed to accept responsibility— it relied on his spoken and written words minimizing the offense.