State v. Duncan, No. 64531

• Court: United States State Supreme Court of Iowa
• Writing for the Court: Considered by REYNOLDSON; UHLENHOPP
• Citation: 312 N.W.2d 519
• Parties: STATE of Iowa, Appellee, v. Vincent DUNCAN, Appellant.
• Docket Number: No. 64531
• Decision Date: 25 November 1981

Page 519

312 N.W.2d 519 STATE of Iowa, Appellee,
v.
Vincent DUNCAN, Appellant. No. 64531. Supreme Court of Iowa. Nov. 25, 1981.

Page 520

Jerald Feuerbach of Gomez, Feuerbach, May & Pries, Davenport, for appellant.

Thomas J. Miller, Atty. Gen., Richard L. Cleland and Merle Wilna Fleming, Asst. Attys. Gen., and William E. Davis, Scott County Atty., for appellee.

Considered by REYNOLDSON, C. J., and LeGRAND, UHLENHOPP, McCORMICK, and SCHULTZ, JJ.

UHLENHOPP, Justice.

If on a single occasion a person burglarizes a marina and a boat in the marina, may the county attorney prosecute the incident as one overall burglary, or must he consider the entries into the marina and the boat as two burglaries? This is the principal problem that confronts us in the present appeal. Cf. State v. Amsden, 300 N.W.2d 882 (Iowa 1981) (similar problem with crime of theft).

The Lindsey Park Yacht Club has a marina at the foot of Mound Street in Davenport, Iowa, consisting of eight slips where boats are moored. The marina is surrounded on the land side by a high fence with locked gates. The fence extends out into the water for about three and a half feet on both sides. A clubhouse stands in the center. Only members and guests have access to the marina.

Marcus Low moors his cabin cruiser at slip 8 in the marina. The boat has an enclosed cabin and a partially enclosed cockpit. It is equipped with an alarm system attached to an air horn, which is activated by touching, jiggling, or moving the door or hatchway into the cabin or by moving the radio on the bridge.

Keith and Mary Ann Kelesen moor their boat nearby. On the early morning of September 2, 1979, the Kelesens and their daughter, asleep in their boat, were awakened when the air horn sounded on the Low boat. Mrs. Kelesen went on deck and saw defendant Vincent Duncan running about "two boats away" from the Low boat. Defendant disappeared and then reappeared outside the fence and got into a Volkswagon car. Mr. Kelesen saw defendant running about fifty or sixty feet away. The daughter saw defendant running away from slip 8. All three subsequently identified defendant at trial as the person they saw running away.

The police were called. They arrived and found defendant in the Volkswagon, apparently asleep. He did not appear to be intoxicated, and he did not have shoes on his feet.

An officer testified that the Low boat was "miraculously clean." He found only one print on the boat, a palm print on the "top of the hatch of a companionway door." He testified the print was at most two days old and could have been made within a shorter period of time. The print was not analyzed. The officer also found a pair of boots on the dock near the boat.

Defendant testified at the subsequent trial. He stated that he and a woman companion drank at bars the evening before and then separated. His testimony included the following:

A. Well, next thing I remember is, I was standing-I was standing down by some water, and I was between two boats, and I remember I was standing down there. I was looking at the water and I was thinking that-about going swimming to sober up, because I-

Q. Did you jump in the water?

A. No, I was-I remember I was thinking about it and-because I wanted to sober up, and then I-this boat I was standing by, I grabbed it like this and pushed it down, I gave it a-I give it a rock.

Page 521

Q. Then what happened?

A. And then this-this horn sounded.

Q. Then what did you do?

A. Then I remember I was running-I was running down this-down this dock.

Q. Was this horn very loud?

A. Yes, it sounded-it was real loud. It sounded like one that was a tornado siren. That's what it reminded me of.

Defendant testified he took off running, saw the Volkswagen, and got in it. He stated that the next thing he remembered the police were there and he was outside the car. He also testified:

Q. So all you remember is grabbing some railing?

A. No, I remember I was standing at the end of the dock between two boats, and I was looking at the water and I was contemplating about going swimming.

Q. Okay. Now you say you were at the end of the dock. You were on the dock that you walk on to get to the boat?

A. All I remember is that there is a dock, and there is a boat here and the boat here, and I was standing between them. I don't know-

Q. So you were between the two boats, then?

A. Yeah.

Q. Okay. Do you remember being on Marc Low's-or being on any boat that night?

A. No, I don't.

Q. Is it possible that you were on those boats, or one of those boats?

A. Could have been.

Our statute defines burglary thus in section 713.1, The Code 1979:

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 or area enclosed in such a manner as to provide a place for the keeping of valuable property secure from theft or criminal mischief, such occupied structure or place 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 or other place where anything of value is kept, commits burglary.

Section 713.2 specifies aggravating circumstances constituting burglary in the first degree. Under section 713.3, all other burglary is in the second degree.

The county attorney charged defendant with one count of second-degree burglary, alleging that defendant "entered an occupied structure or area enclosed in such a manner as to provide a place for the keeping of valuable property secure from theft or criminal mischief" or that defendant "did break an occupied structure or other place where anything of value is kept...."

Defendant pleaded not guilty, a jury found him guilty, the trial court sentenced him, and he appealed. We transferred the appeal to the Court of Appeals, which reversed the conviction by a vote of three-to-two. We thereafter granted further review.

In his appeal defendant advances several propositions which raise three basic issues. Did the trial court erroneously admit testimony of the palm print into evidence? Was the evidence of the elements of burglary sufficient to generate a jury question? Should the court have required jury unanimity as to all the elements of at least one breaking or entering in the episode?

I. Palm print. Defendant argues, correctly, that no evidence was introduced showing the palm print was of his palm. Nor was evidence introduced to exclude the making of the print by someone else. The print could not be used by the State to identify defendant as the burglar. State v. Taylor, 201 N.W.2d 724, 726-27 (Iowa 1972) (foundation requirement). Defense counsel could have properly objected at trial to any such argument by the prosecutor to the jury. On request, defendant would have been entitled to a jury instruction that the print could not be...