IN THE COURT OF APPEALS OF IOWA
No. 13-0923
Filed May 29, 2014
STATE OF IOWA,
Plaintiff-Appellee,
vs.
STEVEN PAUL SEELYE JR.,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Marshall County, Dale E. Ruigh
(bench trial) and James A. McGlynn (sentencing), Judges.
Steven Paul Seelye Jr., appeals from his convictions and sentences for
burglary in the second degree and theft in the fifth degree. AFFIRMED IN PART,
REVERSED IN PART, AND REMANDED.
Mark C. Smith, State Appellate Defender, and Theresa R. Wilson,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney
General, Jennifer Miller, County Attorney, and Paul Crawford, Assistant County
Attorney, for appellee.
Considered by Vaitheswaran, P.J., and Mullins and McDonald, JJ.
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MCDONALD, J.
Following a bench trial, Steven Paul Seelye Jr., was convicted of burglary
in the second degree, in violation of Iowa Code sections 713.1 and 713.5 (2011),
and theft in the fifth degree, in violation of sections 714.1(1) and 714.2(5). The
district court sentenced Seelye as a habitual offender, pursuant to section 902.8,
to a term of incarceration not to exceed fifteen years on the burglary conviction
and thirty days in jail for the theft conviction, said sentences to run concurrently.
The court also imposed but suspended a $1000 fine and surcharge for the
burglary conviction. Seelye appeals his convictions and sentences.
I.
The State charged Seelye with burglary in the second degree and theft in
the second degree. Seelye waived his right to jury trial and stipulated to being a
habitual offender. Prior to trial, the State sought to admit the deposition of victim
Terry Dunham in lieu of his in-court testimony, arguing that Terry was unavailable
to testify in person due to a medical condition. The district court received the
deposition testimony over the defendant’s objection.
Terry and Linda Dunham live in a single-family home in Marshalltown.
Attached to the home is an enclosed porch. The porch can be entered from the
outside through a set of double doors. The home can be entered from the porch
through a door leading into the kitchen. The Dunhams are antique collectors.
They store some of their antiques in cupboards and shelves located in the
enclosed porch.
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The Dunhams and Seelye share an interest in antiques and have known
each other for many years. Seelye was a regular visitor to the Dunham’s home.
In the early afternoon of May 28, 2012, Linda was watching television alone in
the living room of her home. She saw Seelye pull up to the Dunham’s residence
and park his truck in the driveway. He exited the truck, entered the porch, and
knocked at the kitchen door. Linda ignored the knocking and continued watching
television. Three or four minutes later, after not hearing or seeing Seelye leave,
Linda looked out the window of the kitchen door into the enclosed porch. She
saw Seelye take an antique carpet ball out of a cupboard. When Seelye turned,
Linda noticed he also had one of the Dunhams’ antique rolling pins tucked under
his arm. Seelye left the porch, walked to his truck, opened the door, and started
entering the vehicle. Linda ran outside and yelled, “put the stuff back.” Seelye
then walked back towards Linda. Seelye offered no explanation for his conduct.
Linda took the items from him and went back inside. At that time, she noticed
other items missing from the porch. Linda phoned Terry, who told her to call law
enforcement. She did. Seelye was later arrested and charged.
II.
Seelye challenges the sufficiency of the evidence supporting his burglary
and theft convictions. The challenge is properly before the court. See State v.
Abbas, 561 N.W.2d 72, 74 (Iowa 1997) (“We similarly hold that when a criminal
case is tried to the court, a defendant may challenge the sufficiency of the
evidence on appeal irrespective of whether a motion for judgment of acquittal
was previously made.”). “Sufficiency of evidence claims are reviewed for a
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correction of errors at law.” State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012).
Where the proceeding was tried to the court, the district court’s finding of guilt is
binding on us unless we conclude there was not substantial evidence in the
record to support such a finding. See State v. Taft, 506 N.W.2d 757, 762 (Iowa
1993). “In determining whether there was substantial evidence, we review the
record in the light most favorable to the State.” Id. “Substantial evidence means
such evidence as could convince a rational trier of fact that the defendant is guilty
beyond a reasonable doubt.” Id.
A.
We first address the burglary conviction. In its findings of fact, conclusions
of law, and verdicts, the district court concluded the State was required to prove
the following elements beyond a reasonable doubt:
1. On or about May 28, 2012, Mr. Seelye broke or entered the
enclosed porch [of the Dunhams].
2. The porch on the residence was an “occupied structure.”
3. The structure was not open to the public at the time in question.
4. Mr. Seelye had no right, license, or privilege to break or enter
the porch at the time in question.
5. At the time he broke or entered the porch, he had the specific
intent to commit a theft from the premises.
6. One or more persons were present in the residence during the
commission of the burglary.
The district court found that elements 1, 2, 3, and 6 were clearly established
beyond a reasonable doubt. Regarding elements 4 and 5, the district court ruled
as follows:
Mr. Seelye did not have the “right, license, or privilege” to enter the
porch on the Dunham residence on May 28, 2012. Even if he then
had a general license or privilege to enter the porch for the innocent
purpose of visiting the Dunhams, Mr. Seelye had no license or
privilege to enter for the purpose of stealing things from the
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Dunhams. The totality of the evidence also shows that, when he
entered the porch, Mr. Seelye had the specific intent to commit a
theft from the premises. The facts that the garage was visibly
empty and that Mr. Seelye took the items from a cupboard on the
porch as soon as no one answered his knock on the kitchen door
circumstantially show the required specific intent.
Seelye contends there is insufficient evidence the porch was not open to
the public. We agree. While the prosecutor argued the porch was not open to
the public and while the district court found the porch was not open to the public,
the testimony, even when viewed in the light most favorable to the State, is to the
contrary. Linda testified:
Q: Was your home that day open to the public? That is,
could anybody just walk in? A: They could the porch.
The State made no attempt to have Linda clarify or otherwise limit her testimony,
and Seelye’s attorney did not ask any questions regarding the issue on cross-
examination. It is thus uncontroverted that the porch of the Dunham home was
“open to the public.” Presumably, this would include Seelye.
Even assuming, however, the porch was not open to the public, Seelye
contends he specifically had a right, license, or privilege to enter the porch. The
State argues that Seelye’s right, license, and privilege was limited to those times
when the Dunhams were home. According to the State, on the date at issue,
Seelye should have known the Dunhams were not home because the garage
was empty. Therefore, the State argues, Seelye should have known he did not
have permission to enter the porch. It is an interesting argument given that Linda
was, in fact, home. Setting aside that fact, the purported limitation on Seelye’s
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right, license, or privilege to enter the porch is not supported by the record. Linda
testified as follows:
Q. It was not uncommon for Steve Seelye to open [the
enclosed porch] door, walk in, and knock on the interior door
[leading to the kitchen]? A. Yes.
Q. So for him to come into your porch and knock on your
interior kitchen door . . . was fairly common? A. Yeah. Yes.
....
Q. Had you told him prior to May 28, 2012, to not come on
your property? A. No.
Q. Had you ever told him prior to May 28 he did not have
permission to enter upon your porch like he had many times
before? A. No. He always came in and sat down and visited
where we usually were.
....
Q. And again, he didn’t need to knock; he could just come in
[to the enclosed porch] as he pleased? A. Yeah.
Q. He had permission to do that always? A. Yeah. I mean,
there was no reason for him not to.
The purported limitation on the right to enter the porch on only those occasions
the Dunhams were home was simply an argument made by the prosecutor
during closing argument. The only evidence—not argument—regarding the
issue is Linda’s testimony, and she agreed Seelye “had permission . . . always”
to enter the porch.
The State also argues, and the district court found, that even if the public,
including Seelye, had a general right to enter the porch, there is no right, license,
or privilege to enter the porch for the purpose of committing a theft. The State’s
argument is unavailing. “Iowa’s burglary statute has two essential elements: (1)
the defendant’s unlawful presence in or breaking of an occupied structure; and
(2) the defendant's intent to commit a felony, assault, or theft in the structure.”
State v. Walker, 600 N.W.2d 606, 608 (Iowa 1999). The State’s argument, and
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the district court’s conclusion, renders the first element a superfluous tautology.
We avoid interpreting statutes to render any provision of a statute without
meaning. See State v. Nicoletto, No. 12-1862, 2014 WL 1400077, at *5 (Iowa
Apr. 11, 2014) (“Moreover, we interpret statutes in a manner to avoid absurd
results and to avoid rendering any part of an enactment superfluous.”). The
argument also proves too much because it transforms every felony, assault, or
theft occurring inside an occupied structure into a burglary:
We do not agree that permission to be present is automatically
revoked once the defendant commences his criminal conduct. The
mere commission of a crime in an occupied structure does not
automatically constitute a burglary, nor does the defendant’s
criminal intent substitute for proof that consent to remain has been
revoked . . . . If the mere commission of a crime or the formation of
a criminal intent could be used to support an inference that the
defendant’s right to be in the premises has been revoked, every
offense committed in an occupied structure would be transformed
into a burglary.
Walker, 600 N.W.2d at 609-10 (emphasis added).
The district court erred in concluding the defendant’s intent to commit a
theft inside the porch is, standing alone, sufficient evidence that the defendant
possessed no right, license, or privilege to be in the porch. The lawfulness of the
entry and the intent of the defendant are separate inquiries. The first relates to
and requires evidence regarding the defendant’s legal right to enter or remain in
the occupied structure. The second relates to and requires evidence regarding
the defendant’s intended criminal conduct. The distinction between the two
elements and the proof required for each has long been recognized in our case
law:
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There is no breaking in entering a building or room, and therefore
no burglary, if the person entering has a right so to do, although he
may intend to commit, and may actually commit, a felony, and
although he may enter in such a way that there would be a
breaking if he had no right to enter . . . .
State v. Peck, 539 N.W.2d 170, 173 (Iowa 1995) (emphasis added) (citation
omitted); State v. King, 344 N.W.2d 562, 563 (Iowa Ct. App. 1983) (finding the
State did not prove entry without consent because the defendant had “implied
consent to enter” and victims never effectively revoked consent). The distinction
is also recognized by leading secondary authority:
Entering a place where one has a right to be, although with intent to
commit a crime, is not burglary, but one having a general right to be
in a building may be guilty of burglary where he or she enters at a
time or place beyond his or her authority, or remains at a time or
place beyond his or her authority.
12A C.J.S. Burglary § 25 (2004).
The necessity of evidence establishing both wrongful presence and
criminal intent is also recognized in persuasive authority. We find the following
analysis persuasive:
The People reason that a privilege to remain is necessarily
conditioned on lawful purpose and behavior, because nobody
consents to criminal acts on his or her premises. Thus, once a
person with license engages in criminal behavior, consent and
hence license is revoked, and the person who entered lawfully
thereafter remains unlawfully. This reasoning impermissibly
broadens the scope of liability for burglary, making a burglar of
anyone who commits a crime on someone else's premises. It
erroneously merges two separate and independent elements that
must coexist to establish burglary: First, the trespassory element of
entry or remaining without license or privilege; Second, intent to
commit a crime. An intrusion without license or privilege (unlawful
entry) is the distinguishing element, the essence of burglary. It
must be established separately and distinctly from the intention to
commit a crime. The mere fact that a crime was committed or was
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intended is an insufficient basis for finding that the entry or
remaining was without privilege or authority.
People v. Hutchinson, 477 N.Y.S.2d 965, 967 (N.Y. Sup. Ct. 1984) aff’d, 503
N.Y.S.2d 702 (N.Y. App. Div. 1986) (mem.). Other authorities reach the same
conclusion. See State v. Allen, 110 P.3d 849, 855 (Wash. Ct. App. 2005)
(“Essentially, the deputy prosecutor urged the jury to convict Allen of burglary if it
found that he had entered each building with the intent to steal. This argument is
inconsistent with long-standing Washington law. A lawful entry, even one
accompanied by nefarious intent, is not by itself a burglary. Unlawful presence
and criminal intent must coincide for a burglary to occur.”); Davis v. State, 737
So. 2d 480, 484 (Ala. 1999) (“We reiterate that the evidence of a commission of a
crime, standing alone, is inadequate to support the finding of an unlawful
remaining . . . .”).
The State failed to prove beyond a reasonable doubt that the Dunhams’
porch was not open to the public. The State also failed to prove Seelye had no
right, license, or privilege to enter the porch. The State further failed to prove
that Seelye remained in the porch after his right, license, or privilege expired.
Accordingly, the State has failed to prove an essential element of the burglary
conviction, and the judgment of the district court must be reversed.
B.
Seelye also challenges the sufficiency of the evidence supporting his
conviction for theft. To prove theft, the State was required to establish Seelye
took possession or control of the property of another with the intent to
permanently deprive the owner thereof. See Iowa Code § 714.1(1); State v.
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Schminkey, 597 N.W.2d 785, 789 (Iowa 1999). Seelye was charged with theft in
the second degree, which required the State to prove the property was in excess
of $1000 but not more than $10,000. See Iowa Code § 714.2(2). The district
court found Seelye guilty of the lesser-included offense of theft in the fifth degree.
Theft in the fifth degree requires the property not exceed $200 in value but does
not require proof of a minimum value. See Iowa Code § 714.2(5).
“Because proof that the defendant acted with the specific purpose of
depriving the owner of his property requires a determination of what the
defendant was thinking when an act was done, it is seldom capable of being
established with direct evidence.” Schminkey, 597 N.W.2d at 789. “Therefore,
the facts and circumstances surrounding the act, as well as any reasonable
inferences to be drawn from those facts and circumstances, may be relied upon
to ascertain the defendant’s intent.” Id.
Seelye did not have permission to take antiques from the Dunham
residence. Linda watched Seelye remove two items from the enclosed porch.
Seelye transported the items from the porch to his truck. These are not the types
of items that one might take for temporary use like, for example, a motor vehicle.
Linda watched Seelye start to enter the truck and prepare to leave from which it
can be reasonably inferred that Seelye intended to depart the residence with the
items. When Linda demanded that Seelye put the items back, he approached
her. Linda took the items from Seelye’s hands. Seelye offered no explanation
for his conduct to Linda upon being confronted by her. The minimum value of the
items Seelye took is immaterial to the conviction. Viewing the evidence in the
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light most favorable to the State, there was sufficient evidence that Seelye took
the antiques with the intent to permanently deprive the Dunhams of them.
III.
Seelye raises several other challenges to his convictions and sentences.
A.
Seelye contends the district court erred in admitting into evidence Terry
Dunham’s deposition transcript. The deposition was inadmissible hearsay, he
argues. Admission of the same, he further argues, violated his constitutional
right to confront and cross-examine the witness. “[W]e review the admission of
hearsay for errors at law, while Confrontation Clause issues are reviewed de
novo.” State v. Brown, 656 N.W.2d 355, 361 (Iowa 2003). “[B]oth the hearsay
rule and the Confrontation Clause operate to prevent the wrongful admission of
testimony to the prejudice of a defendant.” Id. “Neither rule requires the reversal
of a judgment if the defendant suffered no prejudice or harm from the admission
of inadmissible testimony.” Id. The Brown court set forth criteria to determine
prejudice and harm:
There are two distinct tests to apply to determine whether the
admission of inadmissible testimony is non-prejudicial or harmless
under the two rules. In the hearsay context, where substantially the
same evidence is in the record, erroneously admitted evidence will
not be considered prejudicial. For Confrontation Clause purposes,
the State must establish that the error was harmless beyond a
reasonable doubt. In making the Confrontation Clause
assessment, a court must look at: [T]he importance of the witness’
testimony in the prosecution’s case, whether the testimony was
cumulative, the presence or absence of evidence corroborating or
contradicting the testimony of the witness on material points, the
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extent of cross-examination otherwise permitted, and, of course,
the overall strength of the prosecution’s case.
Id. at 361-62 (citations and quotation marks omitted) (alteration in original).
Where we conclude the testimony was harmless beyond a reasonable doubt, we
need not address the issue of whether the witness was unavailable within the
meaning of Rule of Evidence 5.804(b)(1).
We conclude the admission of the deposition testimony was harmless
beyond a reasonable doubt. First, Seelye’s burglary conviction is not supported
by sufficient evidence and must be reversed. Thus, the relevant inquiry is
whether the testimony was harmless beyond a reasonable doubt with respect to
the theft conviction. Terry’s deposition testimony provided background
information regarding the Dunhams’ relationship with Seelye. Because Terry
was not at the house when Seelye removed the items, Terry was unable to
provide any information based on personal knowledge regarding Seelye’s
conduct that day. Terry also testified briefly on the value of the items removed
from the enclosed porch. Linda testified to the same.
Not only was Terry’s testimony concerning the theft “substantially the
same evidence” as what Linda provided in the record, but Terry’s testimony was
not relied upon by the court, and in fact, was found to be unpersuasive. The
court rejected Terry’s valuation of the missing items, finding Seelye guilty only of
the lesser-included offense that does not require proof of value. Under the
factors reiterated in Brown, it is clear the State proved any error in having Terry
not testify at trial was harmless beyond a reasonable doubt. See State v.
Weaver, 608 N.W.2d 797, 805-06 (Iowa 2000) (finding allegedly inadmissible
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hearsay testimony harmless because “it is clear from the court’s findings in this
jury-waived trial that it did not rely on this evidence”); State v. Farnum, 397
N.W.2d 744, 746 (Iowa 1986) (“[T]here is less need for strict application of
evidence rules in a bench trial.”).
B.
Seelye contends imposition and suspension of the $1000 fine for the
burglary conviction was illegal. The State concedes this point. An illegal
sentence is one not authorized by statute. See Tindell v. State, 629 N.W.2d 357,
359 (Iowa 2011); see also Iowa R. Crim. P. 2.24(5)(a) (“The court may correct an
illegal sentence at any time.”). We agree that imposition and suspension of the
fine was impermissible where the defendant was sentenced as a habitual
offender and no statutory authority apart from the general sentencing provisions
provided for a fine. See Iowa Code § 902.8; State v. Halterman, 630 N.W.2d
611, 613-14 (Iowa Ct. App. 2001). Because we conclude the burglary conviction
is not supported by sufficient evidence and reverse the conviction, the argument
regarding the sentence is now moot.
C.
Seelye also contends his convictions and sentences are illegal because
the district court did not pronounce the verdict in open court. First, the issue is
now moot with respect to Seelye’s burglary conviction. Second, the defendant
failed to preserve error on the issue. Third, at trial, Seelye explicitly consented to
the court returning its verdict in writing and then reading the verdicts at the time
of sentencing. He thus waived the right. Fourth, the district court did read the
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verdict at sentencing. As such, Seelye suffered no prejudice and is not entitled
to relief. See State v. Jones, 817 N.W.2d 11, 21 (Iowa 2012) (“We also agree
with the state court decisions holding the defendant is not entitled to further relief
if the court later reads the verdict at sentencing.”).
IV.
We affirm Seelye’s conviction and sentence for theft in the fifth degree.
We reverse the judgment of the district court with respect to Seelye’s conviction
for burglary in the second degree and remand this matter for entry of judgment of
acquittal.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.