Amended June 26, 2015 State of Iowa v. David Howard Rooney

IN THE SUPREME COURT OF IOWA
No. 13–0618

Filed April 10, 2015

Amended June 26, 2015

STATE OF IOWA,

Appellee,

vs.

DAVID HOWARD ROONEY,

Appellant.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Pottawattamie County,

Richard H. Davidson, Judge.

The defendant seeks further review of a court of appeals decision

affirming his conviction of third-degree burglary. DECISION OF COURT

OF APPEALS AFFIRMED IN PART AND REVERSED IN PART;
DISTRICT COURT JUDGMENT REVERSED AND CASE REMANDED

WITH INSTRUCTIONS.

Mark C. Smith, State Appellate Defender, and Vidhya K. Reddy,

Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Tyler J. Buller, Assistant

Attorney General, Matthew D. Wilber, County Attorney, and Thomas G.

Nelson, Assistant County Attorney, for appellee.
 2

APPEL, Justice.

In this appeal, we consider whether the State offered sufficient

evidence to support a third-degree burglary conviction in which the

allegedly burglarized structure was a soon-to-be-demolished, dilapidated

house and the defendant entered the house to obtain scrap metal. A jury

convicted the defendant and the court of appeals affirmed the conviction.

We granted further review. For the reasons expressed below, we reverse

the decision of the court of appeals related to the sufficiency-of-the-

evidence claim, reverse the judgment of the district court, and remand

the matter for dismissal of the charge.

I. Factual Background and Proceedings.

The State charged David Rooney with burglary in the third degree

under Iowa Code sections 713.1 and 713.6A(1) (2011). According to the

trial information, on November 4, 2012, Rooney entered an occupied

structure in Council Bluffs, having no right, license, or privilege to do so,

with the intent to commit a theft. Rooney pled not guilty and the matter

proceeded to jury trial. Based on the evidence presented, a reasonable

jury could have found the following facts.

The structure located at 233 South Fourth Street in Council Bluffs

has not been used as a residence since 2002. The city had owned the

property since 2007. The structure was a house built in 1890 that the

city hoped could be preserved due to its historic value.

A few developers looked at the property, but none wanted to

rehabilitate it. The house itself was boarded up, but over the years was

broken into several times, and on several occasions, the city hired

workers to secure the site after apparent break-ins. The city gave

permission to the Council Bluffs Historic Alliance, Preserve Council

Bluffs, and Habitat for Humanity of Council Bluffs to enter the property
 3

and remove historic features from the home if they wanted, including

carpentry and the fireplace mantel. None of these organizations,

however, removed anything from the house before it was demolished.

Additionally, a neighbor and her husband had run a few people out of

the property in the months prior to the alleged burglary.

By September 2012, the city had decided it would demolish the

property. After a bidding process, the city awarded a notice of demolition

on October 10. The notice gave the contractor authorization to tear down

the house as of that date. While the contractor brought bulldozers to the

property, demolition did not occur until November 8.

On November 4, four days prior to demolition, a Council Bluffs

firefighter observed two persons loading a radiator from the house onto a

pickup truck with a homemade bed. The truck was backed up to the

front door of the house. A neighbor also saw two men load metal

registers onto a flatbed truck. Investigator Justin James entered the

property about two hours later in the day after a fire was reported and

extinguished. At that time, the house was in disrepair. The insulation

was down, walls were exposed, drywall had been punctured, wires were

hanging down, pipes were disconnected, and there was no electricity.

Investigator James observed that “possibly at one time there had been

transients living in it.”

The condition of the house indicated that someone had attempted

to remove several wires, basically a stripping of copper, and all but one

cast-iron radiator had been removed. Copper is valued at $3 per pound

and cast iron is worth about $200 per ton. Plywood had been ripped off

the back door and the front door was wide open.

Fire investigators ultimate found a small truck meeting the

description of the vehicle that had been on the scene that day at a
 4

residence in Council Bluffs. Investigators found two persons at the

residence, one of whom was Rooney. Investigator James testified that,

by his answers, Rooney implied he was with another individual that day

scrapping metal from the property. The other individual admitted being

at the property that day scrapping metal. Rooney further admitted that

he did not have permission to be on the property and did not have

permission to take any property or metal.

At the close of the State’s evidence and again at the close of all

evidence, Rooney moved for a judgment of acquittal on grounds that the

State failed to establish the structure was an occupied structure under

Iowa Code section 702.12 or that Rooney had entered the structure. The

district court denied the motions.

Prior to submission of the case to the jury, the trial court crafted

its jury instructions. Instruction No. 14, the marshalling instruction,

required the State to prove the house was an occupied structure in order

to convict Rooney of burglary in the third degree. Instruction No. 16

instructed the jury regarding what qualified as an occupied structure.

Instruction No. 16 provided:

A building or structure is an “occupied structure” if it:

1. Is adapted for overnight accommodation of persons; or

2. Is 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 it.

A building or structure is an “occupied structure”
whether or not a person is actually present.

The jury returned a guilty verdict. Rooney appealed. He raised a

sufficiency-of-the-evidence argument concerning the jury’s conclusion

that he entered an occupied structure. Additionally, he argued the

district court erred in submitting the adapted-for-overnight-
 5

accommodation and the used-for-the-storage-or-safekeeping-of-anything-

of-value alternatives defining occupied structure to the jury. Finally, he

claimed the district court erred in overruling his motion for mistrial

based on alleged prosecutorial misconduct during closing argument. The

court of appeals affirmed Rooney’s conviction. Rooney filed an

application for further review, reprising his original claims on appeal,

which we granted.

“On further review, we have the discretion to review all or some of

the issues raised on appeal or in the application for further review.”

State v. Clay, 824 N.W.2d 488, 494 (Iowa 2012). Here, we choose only to

review the sufficiency-of-the-evidence claim. We let the court of appeals’

affirmance of the district court’s order overruling Rooney’s motion for

mistrial based on alleged prosecutorial misconduct stand as the final

decision of this court. See id.

II. Standard of Review.

We review sufficiency-of-evidence claims for correction of errors at

law. State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012). In reviewing

the evidence, we view the evidence in the light most favorable to the

State. State v. Pace, 602 N.W.2d 764, 768 (Iowa 1999). “[W]e will uphold

a verdict if substantial evidence supports it.” Sanford, 814 N.W.2d at

615 (internal quotation marks omitted). “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.

III. Discussion.

A. Overview of the Crime of Burglary. At common law, burglary

was the breaking and entering of a dwelling house of another, at night,

with the intent to commit a felony. Common law burglary was an offense
 6

against the security of habitation or occupancy rather than against

ownership of property. See 4 William Blackstone, Commentaries on the

Laws of England 223 (1st ed. 1723–1780), available at http://avalon.law.

yale.edu/18th_century/blackstone_bk4ch16.asp (historical principle

underlying the law of burglary is the protection of the right of habitation);

see also Sanford, 814 N.W.2d at 617–18 (citing 3 Charles E. Torcia,

Wharton’s Criminal Law § 331, at 302 (15th ed. 1995); 13 Am. Jur. 2d

Burglary § 3, at 219 (2009)). In this respect, the crime of burglary

historically has been distinct from theft statutes, which protect

ownership interests. See Pace, 602 N.W.2d at 768; see also Sanford, 814

N.W.2d at 618 (noting “[t]he deterrence of the trespass and the crime

intended to be committed within [the structure] is of secondary

importance” (internal quotation marks omitted)).

At first, our statutory crime of burglary tracked the common law.

See Iowa Code § 2608 (1851) (defining burglary as breaking and entering

“any dwelling house in the night time with intent to commit the crime of

murder, rape, robbery, larceny, or any other felony; or after having

entered with such intent break any such dwelling house in the night

time, any person being then lawfully therein”); State v. Jones, 10 Iowa

206, 208 (1859). More recently, however, the Iowa legislature has

expanded the scope of the crime of burglary beyond its common law

parameters.

Of particular importance to this case, in 1978 the Iowa legislature

replaced the term “dwelling house” with the more expansive term

“occupied structure.” See 1976 Iowa Acts ch. 1245, ch. 1, § 1301

(codified at Iowa Code § 713.1 (1979)); see also Pace, 602 N.W.2d at 769

(noting our “legislature rewrote the burglary statute, in part, to replace

‘dwelling house’ with ‘occupied structure’ ”). Compare Iowa Code § 708.1
 7

(1977) (defining punishment for burglary when “any person break and

enter any dwelling house in the nighttime, with intent to commit any

public offense; or, after having entered with such intent, break any such

dwelling house in the nighttime, he shall be guilty of burglary”), with

Iowa Code § 713.1 (1979) (defining burglary as “[a]ny 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”), and id.

§ 702.12 (defining occupied structure as “any building, structure, 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”). As was observed at the time, the term

significantly expanded the reach of the burglary statute. See 4 John L.

Yeager & Ronald L. Carlson, Iowa Practice: Criminal Law and Procedure

§ 293, at 76 (1979) (noting “[t]he term occupied structure, includes

anything which would be a dwelling, and much more”). Iowa law

currently defines occupied structure as

any 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.

Iowa Code § 702.12 (2011).

While the legislature has expanded the scope of burglary, it has

also developed different degrees of burglary with graduated criminal

penalties. Burglary in the first degree requires that a person be present
 8

in the structure and one of four circumstances apply. Id. § 713.3. 1

Burglary in the first degree is a class “B” felony and is punishable by a

maximum sentence of twenty-five years. Id. § 713.3(2); id. § 902.9(2).

Burglary in the second degree occurs under one of two alternatives:

a. While perpetrating a burglary in or upon an
occupied structure in which no persons are present, the
person has possession of an explosive or incendiary device or
material, or a dangerous weapon, or a bodily injury results
to any person.

b. While perpetrating a burglary in or upon an
occupied structure in which one or more persons are
present, the person does not have possession of an explosive
or incendiary device or material, nor a dangerous weapon,
and no bodily injury is caused to any person.

Iowa Code § 713.5(1)(a)–(b). Burglary in the second degree is a class “C”

felony and is punishable by a maximum sentence of ten years. Id.

§ 713.5(2); id. § 902.9(4). Any burglary that is not first or second-degree

burglary is third-degree burglary. Iowa Code § 713.6A(1). Burglary in

the third degree is a class “D” felony, punishable by a maximum

sentence of five years. Id.; id. § 902.9(4).
Our leading case interpreting the legislature’s expanded approach

to burglary is Pace. In Pace, we considered whether there was sufficient

evidence to support a burglary conviction when the defendant sprayed

1The four circumstances as stated in the Code are:

a. The person has possession of an explosive or incendiary device
or material.
b. The person has possession of a dangerous weapon.
c. The person intentionally or recklessly inflicts bodily injury on
any person.
d. The person performs or participates in a sex act with any
person which would constitute sexual abuse under section 709.1.
Iowa Code § 713.3(1)(a)–(d).
 9

mace through a screen door upon two occupants and attacked one of the

occupants with a metal club while standing on a concrete area just

outside the back door. 602 N.W.2d at 767. The defendant also

prevented the occupants from closing the door of the home by pushing

inward on the door with his hands. Id. Eventually, the occupants

successfully closed the door, locked it, and called the police. Id. The

defendant was subsequently charged with burglary in the first degree.

Id.

In Pace, we recognized that the legislature had broadened the

scope of burglary beyond the common law crime. Id. at 768–69.

Nonetheless, we emphasized two interpretive principles applied in

construing the burglary statute. First, we recognized we are obligated to

“interpret statutes consistent with common law unless the language of

the statute clearly negates the common law.” Id. at 771. Second, we

recognized our constitutional obligation to construe criminal statutes

strictly. Id.

Turning to the burglary statute, the Pace court recognized that it

contained two prongs. Id. at 769. The first prong related to the type of

place that can be the subject of burglary. Id. The Pace court recognized

that the legislature had expanded the places covered by burglary when it

rewrote the burglary statute, compared to the common law definition, by

including not only buildings, structures, vehicles, and similar places but

also “ ‘appurtenances to buildings and structures.’ ” See id. (quoting

Iowa Code § 702.12 (1997)). The court noted that although the types of

places covered by the statute were expanded, the legislature still required

that the protected place have a purpose or use for carrying on certain

activities. Id. at 769–70.
 10

In Pace, the court determined the step or stoop outside the back

door and the cement walkway leading up to the step would be an

appurtenance under the burglary statute. Id. at 770. As a result, the

first prong related to place had been satisfied. Id. We next determined

whether the second prong of the definition of an occupied structure

applied, namely, whether the place was “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.” Id. (internal quotation marks omitted).

With respect to the concrete stoop and sidewalk leading up to the

house, we concluded the activity prong of the burglary statute had not

been met. Id. at 771. We reached this conclusion for three reasons.

First, we noted the second prong required the place be occupied “by

reason of an activity.” Id. We reasoned it would be difficult to imagine

an appurtenance that would not be an occupied structure if merely

walking over or momentarily standing on the appurtenance was

occupancy for the purpose of carrying on an activity. Id.

Second, we noted the common law purpose of burglary was an

offense against security of occupancy. Id. It is not enough that the

structure be covered by the place requirement of the statute; there must

be some activity that takes place in the structure to satisfy the second

prong of the statute. Id.

Finally, we noted that we “construe criminal statutes strictly[] and

resolve all ambiguities in favor of the accused.” Id. We also observed

that we cannot interpret statutes so broadly that we threaten a due

process violation because of vagueness and uncertainty. Id. We thus

emphasized that the second prong of the statute existed to “help narrow

its parameters.” Id.
 11

Although the defendant’s presence on the sidewalk and the stoop

outside the house did not bring him within the burglary statute, the Pace

court nonetheless affirmed his burglary conviction on another theory. Id.

at 773–74. When the occupants attempted to retreat within the house,

the defendant pushed the door to the house in in order to prevent the

occupants from closing and locking the door. Id. at 773. The defendant

thus broke the plane of the threshold of the house. Id. Because of his

entry into the house, the evidence was sufficient to support a second-

degree, but not first-degree burglary conviction. Id. at 773–74.

As in Pace, we have consistently applied this two-prong test when

analyzing cases under our burglary statute. See, e.g., Sanford, 814

N.W.2d at 616 (noting vehicle clearly met the first prong and thus the

pivotal issue of the case turned on the second prong); State v. Sylvester,

331 N.W.2d 130, 131–32 (Iowa 1983) (applying two-prong test to delivery

truck); State v. Sangster, 299 N.W.2d 661, 663 (Iowa 1980) (holding

evidence was sufficient when garage was used to store automobile).

In this case, a number of questions emerge. Is a house always an

occupied structure because of its original purpose? If not, did the State

produce sufficient evidence to satisfy the second prong of the burglary

statute?

B. Positions of the Parties.

1. Rooney. Rooney asserts the evidence is insufficient to satisfy

the second prong of the Pace test. Rooney recognizes that the State

sought to satisfy the second prong in two ways: by asserting that the

structure was adapted for overnight accommodation and that the

structure was used for the storage or safekeeping of anything of value.

Rooney argues, however, that the State’s evidence fell short on each

ground.
 12

With respect to the adapted-for-overnight-accommodation

alternative, Rooney argues that while the house in question might at one

time have been suited for overnight accommodation that does not mean

it was so adapted at the time of the particular unauthorized entry. He

notes the building sat vacant for approximately ten years after the prior

resident passed away in 2002, that it had been boarded up and had no

electricity, that the walls were exposed in the interior of the house, that

the drywall and plaster were punctured, that the pipes were

disconnected, and that the building was in a general state of disrepair.

Rooney further notes that by July 2012, the city had determined to tear

the structure down; had entered into a demolition contract to destroy the

structure; and had given the demolition company a notice to proceed on

October 10, 2012, which gave the company authorization to tear down

the house as of that date. Rooney notes that due to a delay in obtaining

a permit, the building was not actually demolished until shortly after

November 8, 2012.

In support of his argument, Rooney cites Pace for the proposition

that burglary occurs only by reason “of some activity occurring in the

structure.” 602 N.W.2d at 771. Rooney argues that at the time of the

alleged burglary, the structure was not adapted for overnight

accommodation. He contends State v. Anderson, 975 N.E.2d 556, 559

(Ohio Ct. App. 2012), supports his position. In Anderson, the Ohio court

concluded that an abandoned residence, which was condemned and was

to be demolished by the city, was no longer a place maintained as a

dwelling, occupied as a habitation, or specially adapted for overnight

accommodation. Id. at 560–61.

Rooney makes a similar argument regarding the statutory

alternative that burglary occurs when a structure is used for the storage
 13

or safekeeping of anything of value. Rooney recognizes there was

testimony that the copper wire and cast-iron radiators that were part of

the structure had scrap value. But Rooney argues that the mere fact the

items were located in the structure does not mean the place is used for

the storage or safekeeping of those items. Rooney points out that if the

used-for-the-storage-or-safekeeping-of-anything-of-value alternative is

satisfied by component parts of a building, then virtually every building

would be an occupied structure by virtue of wiring, plumbing, boards, or

nails that have scrap value. He notes that Pace made clear that

“[b]urglary was never intended to cover all structures, but only those

occupied by reason of some activity occurring in the structure.” 602

N.W.2d at 771.

2. The State. The State disagrees with Rooney’s analysis. With

respect to the adapted-for-overnight-accommodation alternative, the

State notes that under Iowa law, it is not necessary that a person is

actually present in order for a building to be an occupied structure. See

Iowa Code § 702.12. According to the State, we have generally

interpreted the term “occupied structure” broadly. In support of its

argument, the State cites Iowa cases in which a garage, a driveway, a

private office in a public building, and the cab of a truck were held to be

occupied structures. See State v. Willis, 696 N.W.2d 20, 23–24 (Iowa

2005) (garage); State v. Baker, 560 N.W.2d 10, 13–14 (Iowa 1997)

(driveway); Bailey v. State, 493 N.W.2d 419, 422 (Iowa Ct. App. 1992)

(private office in public building), overruled on other grounds by State v.

O’Shea, 634 N.W.2d 150, 159 (Iowa Ct. App. 2001); State v. Buss, 325

N.W.2d 384, 385 (Iowa 1982) (cab of truck).

Based on the premise that the statute should be given a broad

reading, the State declares the condition of the house is of no particular
 14

legal significance. As argued by the State at oral argument, “A house is a

house is a house.” While the State concedes the structure here had no

electricity or plumbing, the State asserts the same might be true of a

summer cabin near a rural Iowa lake. Further, the State maintains there

is evidence in the record that transient persons were recently living in

the house, thereby satisfying the adapted-for-overnight-accommodation

requirement.

The State further rebuts the arguments advanced by Rooney based

upon the Anderson case. The State rejects the teaching of Anderson,

noting that it is risky to rely on cases from other jurisdictions with

differently worded statutes, and that in Ohio, unlike Iowa, a legislative

committee comment expressly stated the burglary statute did not apply

to a house that has been “permanently abandoned” or “vacant for a

prolonged period of time.” See 975 N.E.2d at 559–60 (citing State v.

Green, 480 N.E.2d 1128, 1131–32 (Ohio Ct. App. 1984)). The State

further suggests that if the Iowa legislature wanted to provide an

exemption from burglary prosecutions for abandoned or condemned

property, it would have added an affirmative defense such as that

contained in the Model Penal Code. See Model Penal Code § 221.1(1),

10A U.L.A. 493 (2001) (noting “[i]t is an affirmative defense to

prosecution for burglary that the building or structure was abandoned”).

Finally, the State directs our attention to several cases from other

jurisdictions in which burglary convictions were upheld when dilapidated

or abandoned structures were involved. See Herrick v. Kansas, 965 P.2d

844, 846, 848 (Kan. Ct. App. 1998) (affirming burglary conviction in case

involving an unoccupied house being used for storage); Askew v.

Commonwealth, No. 2008-CA-000240-MR, 2009 WL 875059, at *2 (Ky.

Ct. App. Apr. 3, 2009) (affirming burglary of a dilapidated house); State v.
 15

Kowski, 423 N.W.2d 706, 710 (Minn. Ct. App. 1988) (affirming burglary

conviction of unoccupied, under-construction summer cabin).

The State contends, however, that even if there was insufficient

evidence the structure in this case met the adapted-for-overnight-

accommodation alternative, the evidence satisfies the used-for-the-

storage-or-safekeeping-of-anything-of-value alternative. The State

maintains the mere fact that the property taken was fixtures makes no

difference under the burglary statute. In any event, the State contends

the fact that Rooney walked out of the house with cast-iron radiators

suggests there were some portable items of value in the house. The State

further argues the house was used to store items of value, including

historical carpentry, a fireplace mantel, copper wiring, and cast-iron

radiators.

Finally, the State urges that adoption of Rooney’s argument will

have negative policy consequences. According to the State, if we adopt

Rooney’s position, an entry into a house that appears vacant, but is

actually occupied at the time of the entry, will not lead to a burglary

conviction. A wintertime entry into a summer vacation residence,

according to the State, would no longer be burglary. Removing “so many

dwelling places” from the scope of the statute, according to the State, is a

consequence the legislature never intended.

C. Analysis. We begin our analysis by reviewing the clear

teaching of Pace and our related caselaw. In order to support a burglary

conviction, the State must produce substantial evidence to support two

independent elements of our burglary statute, one related to place and

the second related to activity, purpose, or use. Pace, 602 N.W.2d at 769.

It is true that the legislature has broadly phrased the element of place

and we, as a result, have found the element satisfied in a wide variety of
 16

contexts. See, e.g., id. at 770 (finding “a step or stoop outside the door of

a home, as well as the cement walkway leading to the step, would fall

within the definition of an appurtenance to the house”); Baker, 560

N.W.2d at 13 (concluding a driveway is an appurtenance to a building or

structure and thus within the first prong of the burglary statute); State v.

Hill, 449 N.W.2d 626, 628 (Iowa 1989) (finding a fenced enclosure behind

an automobile parts store to be an appurtenance to a building and

therefore within the first prong of the burglary definition).

But this does not mean, for instance, that all houses, which are

certainly the type of place that satisfy the place prong of the statute, are

necessarily occupied structures. We have held that even when the place

element of burglary is clearly met, we must move on to the activity or

purpose prong of the definition of occupied structure. See Sanford, 814

N.W.2d at 616 (noting that although the vehicle clearly met the first

prong, the “pivotal issue” was whether the second prong had been met);

Pace, 602 N.W.2d at 770–71 (concluding that even though the stoop

outside the door of a home satisfied the first prong, it did not meet the

purpose prong, and therefore was not an occupied structure under the

statute).

Under the burglary statute, the second prong related to activity or

purpose can be met in three alternative ways. In this case, two

alternatives are implicated, namely, the adapted-for-overnight-

accommodation alternative and the used-for-the-storage-or-safekeeping-

of-anything-of-value alternative. See Iowa Code § 702.12.

Turning to the adapted-for-overnight-accommodation alternative,

we believe this alternative may be met only with evidence showing the

structure was adapted for overnight accommodation at the time of the
 17

crime. 2 The burglary statute is designed to protect people from risks

associated with entries into structures where certain types of activities

are likely to occur. See Sanford, 814 N.W.2d at 616. As we stated in

Pace, “[b]urglary was never intended to cover all structures, but only

those occupied by reason of some activity occurring in the structure.” 602

N.W.2d at 771 (emphasis added). We think it is not enough for the State

to show that a structure was adapted for overnight accommodation ten

years ago. The activity or purpose must be present at the time of the

alleged crime. See Pace, 602 N.W.2d at 771 (describing the “purpose”

prong and the requirement that “the subject matter of burglary be

occupied in conjunction with some activity which takes place in the

structure” (emphasis added)); Merriam-Webster’s Collegiate Dictionary

263 (11th ed. 2014) (defining conjunction as “occurrence together in time

or space”). Other states with the adapted-for-overnight-accommodation

language require a contemporaneous purpose or use under their

burglary statutes. See, e.g., Commonwealth v. Graham, 9 A.3d 196, 204

(Pa. 2010) (holding the structure was not adapted for overnight

accommodation at the time of the illegal entry); Soliz v. State, 785 S.W.2d

438, 439 (Tex. Ct. App. 1990) (noting “the status of the house at the time

of the offense is the relevant query”); Blankenship v. State, 780 S.W.2d

198, 200 (Tex. Crim. App. 1989) (en banc) (noting the definitive feature of

habitation as defined in the statutes is that “the structure must have

2During closing argument, the State walked away from this alternative, stating:
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. I don’t think that really is fair here.
Closing arguments, however, are not evidence and the jury was instructed and
still bound to consider the case under both alternatives. See Jury Instruction No. 10
(instructing the jury that statements by the lawyers are not evidence); Jury Instruction
No. 16 (instructing under both alternatives).
 18

been adapted for and at the time of the offense be fit for accommodation

‘overnight’ ”).

The question is thus whether the structure was adapted for

overnight accommodation at the time Rooney allegedly entered it. In

theory, the test of adaption could turn on the subjective intent of the

property owner, an objective analysis of the condition of the property, or

perhaps upon actual use of the property. The term “adapt” was defined

by the Pace court as “to make fit, often by modification.” 602 N.W.2d at

772 (quoting Merriam-Webster’s Collegiate Dictionary 13 (10th ed. 1998)).

In this case, however, the facts show no adaptation for overnight

accommodation under any theory. The city boarded up the property to

keep people out. The structure had no electricity or running water. It

was falling apart. The city had determined to demolish the structure, a

contract of demolition had been approved, and destruction was

imminent. It was not adapted for overnight accommodation.

The State contends there was evidence that transients were

occasionally breaking into the property. Generally, however, the cases

suggest that the purpose of burglary statutes is to protect the person

with custody and control of the property, not the temporary dwelling of

transients. See State v. Hagedorn, 679 N.W.2d 666, 671 (Iowa 2004)

(noting the purpose of the burglary law is to protect the person with

custody and control of the property); Pace, 602 N.W.2d at 768 (stating

burglary law is intended to protect the security of habitation). If so, it is

clear the structure was not adapted for overnight accommodation from

the viewpoint of the owner, either the city or the demolition company, at

the time of the alleged illegal entry.

In any event, even if actual use were relevant, the evidence on this

point is insufficient to support a burglary conviction. While a neighbor
 19

testified she and her husband had run a few people off the property in

the months prior to November 4, this fleeting statement is not

substantial evidence that transients were spending the night on the

premises at the time of the crime. Indeed, the evidence is consistent with

occasional drug usage, or temporary repose, not associated with

habitation or overnight accommodation. A fire investigator who was

inside the structure on the day of Rooney’s arrest testified that “there

were multiple spots where it appeared that possibly at one time there

had been transients living in it.” Such speculation that it appeared

possible at one time that transients had lived in the structure does not

provide substantial evidence that the structure was being used by

transients at the time of the alleged crime.

We do not view our interpretation of the adapted-for-overnight-

accommodation alternative as undermining the purpose of the statute.

Indeed, it will be quite easy for the State to show that the vast majority of

homes are adapted for overnight accommodation. By excluding a

structure that is falling apart and scheduled for imminent demolition

from the reach of the burglary statute, we retain the historic common law

purposes of the statute, while remaining consistent with the legislature’s

existing statutory framework.

We now turn to the used-for-the-storage-or-safekeeping-of-

anything-of-value alternative. There was substantial evidence in the

record that copper wire and cast iron has some scrap value. But the

activity or purpose prong requires more than the mere fact there is some

scrap that might be ripped out of a dilapidated building with some

marginal economic value. If this were true, every structure that

contained a nail or a screw or a plank might be an occupied structure

under the statute. In order to qualify under the activity and purpose
 20

alternative, the structure must be adapted “for storage or safekeeping of

anything of value.” Iowa Code § 702.12; see also Pace, 602 N.W.2d at

772 (noting a driveway was not “made or modified as a place for the

storage or safekeeping of valuable property”); Sangster, 299 N.W.2d at

663 (noting “an occupied structure includes a structure adapted ‘for the

storage or safekeeping of anything of value’ ” (quoting Iowa Code

§ 702.12)). At the time of the alleged crime, there was simply no evidence

that the city had adapted or modified the structure for use to store or to

keep safe anything of value. Cf. Pace, 602 N.W.2d at 772. The building

was scheduled for demolition and the bulldozers were on the scene.

Further, there is no evidence in the record that a third party had adapted

the structure for storage or safekeeping of anything of value.

Of course, all this does not mean that Rooney was not guilty of any

crime. He may have been guilty of theft, see Iowa Code § 714.1 (defining

theft), and he may have been guilty of trespass, see id. § 716.7 (defining

trespass). But he was not guilty of burglary.

IV. Conclusion.

For all the above reasons, the decision of the court of appeals

related to the sufficiency-of-the-evidence claim is reversed, the judgment

of the district court convicting Rooney of burglary in the third degree is

reversed, and the matter is remanded to the district court for dismissal of

the charge.

DECISION OF COURT OF APPEALS AFFIRMED IN PART AND

REVERSED IN PART; DISTRICT COURT JUDGMENT REVERSED AND

CASE REMANDED WITH INSTRUCTIONS.

All justices concur except Zager, Waterman, and Mansfield, JJ.,

who dissent.
 21
#13–0618, State v. Rooney
ZAGER, Justice (dissenting).

I respectfully dissent. The question presented in this appeal is

whether the State offered sufficient evidence to support the jury’s finding

that Rooney “enter[ed] an occupied structure” as defined by Iowa Code

section 702.12 (2011). Iowa Code § 713.1 (emphasis added).

Specifically, we must determine whether there was sufficient evidence to

support either of two alternative definitions of “occupied structure”

contained in the jury instruction given to the jury by the district court.

See Iowa Code § 702.12. Because I believe there was substantial

evidence to support the jury’s verdict on either of the two alternative

definitions of occupied structure, I would affirm the decision of the court

of appeals and the judgment of the district court.

Iowa Code section 713.1 states:

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.

(Emphasis added.)

In turn, Iowa Code section 702.12 defines the statutory term

“occupied structure” as:

[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.

In determining whether an alleged burglar entered what

constitutes an occupied structure under Iowa Code section 702.12, we
 22

apply a two-prong test. State v. Sanford, 814 N.W.2d 611, 616 (Iowa

2012). “ ‘The first [prong] describes the type of place that can be the

subject of burglary, and the second considers its purpose or use.’ ” Id.

(quoting State v. Pace, 602 N.W.2d 764, 769 (Iowa 1999)). “[A]ny

building, structure, appurtenances to buildings and structures, land,

water or air vehicle, or similar place” satisfies the first prong of section

702.12. Iowa Code § 702.12; accord Sanford, 814 N.W.2d at 616. The

house in this case is clearly a structure. Thus, the issue here is whether

the purpose prong of the definition found in section 702.12 has been

satisfied.

“The second prong of section 702.12 requires us to consider the

purpose or use of the place in question.” Sanford, 814 N.W.2d at 616.

Purposes or uses that make a particular place an occupied structure

within the meaning of section 702.12 are whether the place is “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; accord

Sanford, 814 N.W.2d at 616. Here, the State does not claim the house in

this case was occupied by persons for the purpose of carrying on

business or other activity, and the district court did not provide the jury

with this alternative. Rather, the district court only provided the jury

with the remaining two alternative definitions of occupied structure.

Thus, we must determine whether there was substantial evidence to

support the jury’s finding that this house was either adapted for

overnight accommodation of persons or used for the storage or

safekeeping of anything of value. See Iowa Code § 702.12. On this

record, viewing the evidence in the light most favorable to the State,

there is substantial evidence to support the jury’s finding that the house
 23

is an occupied structure under either alternative given to the jury. See

Sanford, 814 N.W.2d at 615 (recognizing that in determining whether

there is substantial evidence to support a verdict, we 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.’ ”

(quoting State v. Keopasaeuth, 645 N.W.2d 637, 640 (Iowa 2002))).

Turning to the adapted-for-overnight-accommodation alternative,

there was substantial evidence to support a finding that the house in this

case is an occupied structure. The statute does not require a showing

that the place in question is currently inhabited. See Iowa Code

§ 702.12. Rather, the adapted-for-overnight-accommodation alternative

focuses on the intended use or nature of the structure itself. See

Commonwealth v. Nixon, 801 A.2d 1241, 1247–48 (Pa. Super. Ct. 2002)

(holding determination of whether a finished but uninhabited house

trailer was adapted for overnight accommodation should turn on “the

nature of the structure itself and its intended use, and not whether the

structure is in fact inhabited”); Blankenship v. State, 780 S.W.2d 198,

206, 209–10 (Tex. Crim. App. 1989) (en banc) (holding there was

sufficient evidence to support jury’s determination that the rental house

was adapted for overnight accommodation when at the time of the

burglary the structure was unoccupied, had not been lived in or rented

for two years, and had the utilities turned off). In Blankenship, the Texas

Court of Criminal Appeals stated:

[W]hat makes a structure “suitable” or “not suitable” for
overnight accommodation is a complex, subjective factual
question fit for a jury’s determination. Their inquiry could
be guided by reference to whether someone was using the
structure or vehicle as a residence at the time of the offense;
whether the structure or vehicle contained bedding,
furniture, utilities, or other belongings common to a
residential structure; and whether the structure is of such a
 24
character that it was probably intended to accommodate
persons overnight (e.g. house, apartment, condominium,
sleeping car, mobile home, house trailer).

780 S.W.2d at 209 (emphasis added). Clearly, the structure in this case

was sufficiently adapted for overnight accommodation. More

importantly, whether a particular structure is adapted for overnight

accommodation is a fact-intensive question for a jury to decide.

Quintessentially, a house is a structure adapted for overnight

accommodation. See Pace, 602 N.W.2d at 773 (“The house clearly met

the definition of an ‘occupied structure.’ ”); Webster’s Third New

International Dictionary 1096 (unabr. ed. 2002) (defining a “house” as “a

structure intended or used for human habitation”). Thus, viewing the

evidence in the light most favorable to the State, the nature of the

structure itself strongly supports a finding that this structure was

adapted for overnight accommodation. The majority, however, goes to

great lengths to conclude that this house is not a structure adapted for

overnight accommodation. In support of its argument, it cites the facts

that the city boarded up the structure to keep people out, that the

structure had no electricity or running water, that the structure was

falling apart, that the city had already decided to demolish the structure,

that a contract of demolition of the structure had been approved, and

that destruction of the structure was imminent. All of these facts may

tend to show that no one was currently occupying the structure.

However, these facts have little to do with whether the structure is

adapted for overnight accommodation, something for which a house is

intrinsically adapted. The majority has to concede that the house was at

some time adapted for overnight accommodation. The majority then

proceeds to decide, in its own judgment, when the structure lost its

character as a structure adapted for overnight accommodation. Of
 25

course, the majority can’t provide any real guidance as to exactly when

this happened, just that it did.

Many places that are adapted for overnight accommodation do not

have electricity or running water and may be boarded up or not used for

a significant period. Examples include camping structures such as

tents, campers, or trailers, many of which do not have electricity or

running water. It could be an abandoned mobile home on a farmstead.

Some shacks, hunting cabins, and even some homes or motels may not

possess modern amenities associated with overnight accommodation by

some members of our society. See Robert L. Kidder & John A. Hostetler,

Managing Ideologies: Harmony as Ideology in Amish and Japanese

Societies, 24 Law & Soc’y Rev. 895, 904 (1990) (noting that many Amish

homes are “free from electricity”). Nevertheless, these structures are

clearly adapted for overnight accommodation. It defies common sense

and logic to think that anyone would interpret our burglary statutes so

narrowly to say that if someone unlawfully entered any one of these

occupied structures, to commit a theft therein, this does not constitute a

burglary. This cannot be what the legislature intended in enacting the

burglary statute.

Moreover, the majority minimizes evidence in the record that

shows this house was actually being used for overnight accommodation.

The State presented testimony from a neighbor who stated that her

husband had run a few people off the property in the months prior to

November 4. She further testified that the house had been broken into a

number of times and that she frequently observed instances when the

doors of the house were wide open. One of the firefighters who was

initially dispatched to the scene testified that “there were multiple spots

where it appeared that possibly at one time there had been transients
 26

living in it.” The majority minimizes this evidence characterizing it as

“consistent with” nonhabitable uses and “speculative.” Maybe. But the

majority neglects to mention testimony from the Community

Development Project Coordinator for the City of Council Bluffs. She

testified that prior to the break-in on November 4 she had contacted the

emergency homeless shelter to board up the site, indicating there may

have been an issue with overnight use of the premises by members of the

homeless community. In my opinion, coupled with the fact that a house

is a place intrinsically adapted for overnight accommodation, this

evidence was sufficient to support the jury’s verdict that this structure

was adapted for overnight accommodation.

At its core, the majority’s legal analysis gerrymanders the adapted-

for-overnight-accommodation requirement into an abandonment defense.

Under its analysis, a house is a house until it is no longer used for

human habitation, i.e., abandoned. Yet, if our legislature had wanted to

adopt an abandonment defense, it could easily have done so as have

other states. See, e.g., Conn. Gen. Stat. Ann. § 53a-104 (West, Westlaw

through Jan. 1, 2015) (“It shall be an affirmative defense to prosecution

for burglary that the building was abandoned.”); 18 Pa. Cons. Stat. Ann.

§ 3502(b)(1) (West, Westlaw through 2014 Reg. Sess.) (“It is a defense to

prosecution for burglary if . . . at the time of the commission of the

offense . . . [t]he building or structure was abandoned.”); 9 Guam Code

Ann. § 37.20(a) (West, Westlaw through May 23, 2014) (“It is an

affirmative defense to prosecution for burglary that the property, or

building, or motor vehicle was abandoned.”); accord Model Penal Code

§ 221.1(1), 10A U.L.A. 493 (2001) (“It is an affirmative defense to

prosecution for burglary that the building or structure was abandoned.”).
 27

Whether our State should adopt such an affirmative defense to the crime

of burglary is a policy determination for our legislature, not this court.

I turn now to the used-for-the-storage-or-safekeeping-of-anything-

of-value alternative. Here, too, I believe the State offered sufficient

evidence to support the jury’s verdict. In a cursory fashion, the majority

concludes, “At the time of the alleged crime, there was simply no

evidence that the city had adapted or modified the structure for use to

store or to keep safe anything of value.” This is clearly erroneous.

Contrary to the majority’s assertion, the record shows that the city used

the house for the storage and safekeeping of several things of value. The

Community Development Project Coordinator testified that the house

contained “special historic features that were left in the property that [the

City was] maintaining.” She testified that several items in the house

were of historical significance, namely some elements of carpentry, such

as the fireplace mantel. She also testified that the city made efforts to

board up the property, and that when she received reports that “the

property was wide open” or that “boards were removed,” she would “call

people and have them secure the site.” When asked by the State if “the

City of Council Bluffs continue[d] to take an interest in th[e] property

right up until the time it was demolished?” she responded, “Yes. Yes.”

On cross-examination, she testified that she got a call from the historic

society on the day the building was demolished “and they wanted to

know if they could still get in there.” It cannot be reasonably disputed

that the city was attempting to safeguard the contents of the house.

One of the firefighters who was initially dispatched to the scene

testified that he had investigated multiple metal thefts. He further

testified that based on his investigation, “It appeared that . . . wire had

been tried to [be] remove[d from the house]; and where they couldn’t
 28

exactly remove it from the wall, they just cut it, took what they could,

basically stripping the house for copper.” He also testified that it

appeared as if someone had entered the house and removed several of its

cast-iron radiators. Based on his experience, he testified that copper has

a value of approximately “$3.11 a pound” and that cast iron sells for

approximately “$200 per ton.”

This record shows the house contained items of both historical and

monetary value and that the city took affirmative steps to protect its

interests by boarding up the house. When the city discovered that

unauthorized individuals had entered the house, it took action to

resecure the site. The city had an interest in securing the property up

until the time it was actually demolished, and until the time the property

was demolished, the city was engaged in conversations with community

members who were interested in obtaining items from the property. In

my opinion, this is sufficient to support a jury finding that the house was

being used for the storage or safekeeping of valuable things.

The majority supports its analysis by making the following

observation:

[T]he activity or purpose prong requires more than the mere
fact there is some scrap that might be ripped out of a
dilapidated building with some marginal economic value. If
this were true, every structure that contained a nail or a
screw or a plank might be an occupied structure under the
statute.

The majority misses the point. First, there doesn’t have to be a

completed act. See Iowa Code § 713.1. The clear language of the statute

only requires the “intent to commit a felony, assault or theft.” Id. Just

as with many of our criminal statutes, it is not necessary the defendant

complete the act. See id.; see also id. § 711.1 (“It is immaterial to the

question of guilt or innocence of robbery that property was or was not
 29

actually stolen.”). Moreover, here we do have the completed act of a

theft. Second, there does not have to be anything of value contained

within the structure. See Iowa Code § 702.12. If the purpose of the

structure is for the storage or safekeeping of property, it is an occupied

structure as defined in the statute, regardless of what is contained inside

or its value. See id. Moreover, here the house did contain items of

historical and monetary significance. This is evidenced not only by the

above-mentioned testimony of the city employee and the firefighter, but

also by the fact that Rooney actually committed the crime of theft by

taking the cast-iron radiators from the house. The only people who

apparently consider these cast-iron radiators worthless are the majority.

The City of Council Bluffs, a firefighter, the State, the jury, and even

Rooney (by his actions) disagree.

The majority is correct in that the burglary statute is primarily

designed to protect people from the risks associated with entries into

structures where certain types of dangerous interactions are likely to

occur. See Sanford, 814 N.W.2d at 618. Nevertheless, in determining

whether a particular structure is an occupied structure within the

meaning of the statute, the statute does not require us to engage in a
case-by-case risk analysis. See Iowa Code § 702.12; id. § 713.1. This

risk is already accounted for in the statute through graduated degrees of

burglary based on the risks involved. See State v. Rubino, 602 N.W.2d

558, 564 (Iowa 1999) (recognizing the graduated nature of first-, second-,

and third-degree burglary and noting that with respect to first-degree

burglary “[t]he risk of harm to persons distinguishes the crime and

elevates it in terms of proof and severity of punishment from second- or

third-degree burglary”). Thus, in writing the burglary statute, the

legislature made these risk-based, policy determinations such that the
 30

burglary statute reflects a judgment that corresponds with the potential

risk of harm to persons. True, as in this case when a house is arguably

no longer actually used for purposes of human habitation, there is less

risk the dangerous interactions the law seeks to deter will occur. And as

in this case when it appears that individuals are not often frequenting a

given structure because there is arguably little of value contained

therein, there is less risk the dangerous interactions the law seeks to

deter will occur. However, under the statute a person may be convicted

of burglary despite the fact that the risk of a dangerous interaction is

relatively low. See Iowa Code § 702.12 (“Such a structure is an ‘occupied

structure’ whether or not a person is actually present.”). Compare id.

§ 713.3 (requiring presence of “one or more persons” to sustain

conviction for first-degree burglary), and id. § 713.5(1)(b) (requiring

presence of “one or more persons” when burglar does not possess an

“explosive or incendiary device or material, nor a dangerous weapon” to

sustain conviction for second-degree burglary), with id. § 713.6A (not

requiring presence of one or more persons to sustain conviction for third-

degree burglary). The law accounts for this decreased risk in the form of

decreased proof requirements and punishments, not dismissal. See

Rubino, 602 N.W.2d at 564. Compare Iowa Code § 713.3(2) (establishing

first-degree burglary as a class “B” felony), with id. § 713.5(2)

(establishing second-degree burglary as a class “C” felony), with id.

§ 713.6A(1) (establishing third-degree burglary as a class “D” felony or an

aggravated misdemeanor). Apparently, the majority is not prepared to

recognize the modern definitions and degrees of burglary, instead

focusing on its own definition and interpretation of occupied structure.

There was substantial evidence in this record for the district court

to instruct the jury on both alternative definitions of occupied structure,
 31

and correspondingly to support the jury’s verdict on either of the two

alternative definitions. I would affirm the decision of the court of appeals

and the judgment of the district court.

Waterman and Mansfield, JJ., join this dissent.