State v. Peck

• Decision Date: 25 October 1995
• Docket Number: No. 94-1353,94-1353
• Citation: 539 N.W.2d 170
• Parties: STATE of Iowa, Appellee, v. Aaron Matthew PECK, Appellant.
• Court: Iowa Supreme Court

Page 170

539 N.W.2d 170

STATE of Iowa, Appellee, v. Aaron Matthew PECK, Appellant.

No. 94-1353.

Supreme Court of Iowa.

Oct. 25, 1995.

Linda Del Gallo, State Appellate Defender, and Kevin Cmelik, Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Bridget A. Chambers, Assistant Attorney General, and Karl G. Knudson, County Attorney, for appellee.

Considered by McGIVERIN, C.J., and LARSON, LAVORATO, NEUMAN, and ANDREASEN, JJ.

LARSON, Justice.

Aaron Peck was convicted of first-degree burglary under Iowa Code sections 713.1 and 713.3 (1993). On appeal, he raises issues regarding (1) the sufficiency of the evidence on one of the elements of burglary, (2) the court's instruction on justification, and (3) the alleged ineffective assistance of his trial counsel. We affirm.

The defendant's wife commenced a dissolution-of-marriage proceeding and contemporaneously obtained a court order restraining the defendant "from coming upon any premises occupied by the petitioner and minor children...." The sheriff's deputy served a copy of the restraining order on the defendant at the time he served the original notice of the dissolution action.

Three days later, the defendant went to the house in which the couple had resided. His wife was in the house with her children and a nephew who was helping her move from the house. The defendant kicked in the door and assaulted the nephew.

I. Sufficiency of the Evidence.

In ruling on a claim of insufficient evidence, we review the record in the light most favorable to the State. State v. Bass, 349 N.W.2d 498, 500 (Iowa 1984). The jury verdict is binding unless there is no substantial evidence to sustain it. State v. Allen, 348 N.W.2d 243, 247 (Iowa 1984). The court considers both direct and circumstantial evidence in determining whether a "fair inference of guilt" and more than "speculation, suspicion, or conjecture" is raised. State v. Hamilton, 309 N.W.2d 471, 479 (Iowa 1981).

Iowa Code section 713.1 defines the crime of burglary:

[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, 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.)

The first issue is whether sufficient evidence supports the jury's finding that the defendant did not have the "right, license or privilege" to enter the house. The house had been the marital home of the parties, but the defendant was at that time residing at some unknown location. His wife was in the process of moving to another community, but at the time of the incident she and the children were in this house.

Apparently, none of our cases have discussed the "right, license or privilege" language of section 713.1 under similar circumstances. The defendant concedes that under some circumstances a party may not have a right to enter a home, even if it is his own. He claims, however, that the restraining order did not prevent him from entering the house; it restrained him only from confronting his wife and the children, and they just happened to be in the home at the time. The State counters that the restraining order prohibited the defendant from confronting his wife or the children at any location, and this would necessarily include the house.

In an analogous case, we held that a person may be convicted of criminal mischief for destroying property owned with his spouse. State v. Zeien, 505 N.W.2d 498, 499 (Iowa 1993). In Zeien, the defendant was charged with criminal mischief for damaging contents of his estranged wife's home. Section 716.1 (1991) defined criminal mischief as actions "by one who has no right to so act." We rejected the husband's argument that because he had an ownership interest in the property he had the "right to so act." Zeien, 505 N.W.2d at 498-99.

Also, in State v. Sylvester, 516 N.W.2d 845, 848-49 (Iowa 1994), we held that a partner may be convicted of embezzling from her own partnership; and in State v. Mann, 463 N.W.2d 883, 884 (Iowa 1990), we held that a tenant, though possessing some ownership rights, could be convicted of criminal mischief as a result of damage done to the landlord's property.

As we acknowledged in Zeien, criminal statutes are to be construed in the defendant's favor, but they must be construed reasonably and in such a way as to not defeat their plain purpose. Zeien, 505 N.W.2d at 499. Public policies underlying our decision in Zeien apply to the present case as well. Application of our burglary law in these circumstances will tend to discourage domestic violence and promote security in the home.

Cases from other jurisdictions support the application of burglary statutes under analogous circumstances. See, e.g., People v. Davenport, 268 Cal.Rptr. 501, 219 Cal.App.3d 885 (1990); Ellyson v. State, 603 N.E.2d 1369 (Ind.Ct.App.1992); State v. Dively, 431 N.E.2d 540 (Ind.Ct.App.1982); People v. Pohl, 202 Mich.App. 203, 507 N.W.2d 819 (1993); State v. Stallings, 812 S.W.2d 772 (Mo.Ct.App.1991); People v. DeLarosa, 172 A.D.2d 156, 568 N.Y.S.2d 47 (1991); People v. Jones, 169 A.D.2d 986, 565 N.Y.S.2d 262 (1991); Stanley v. State, 631 S.W.2d 751 (Tex.Crim.App.1982); Ex parte Davis, 542 S.W.2d 192 (Tex.Crim.App.1976); State v. Teynor, 141 Wis.2d 187, 414 N.W.2d 76 (1987).

Peck distinguishes these cases on the ground that this house was the marital residence of the parties rather than the separate property of the victim-spouse as in several of the cases set out above. He contends that he had paid the rent on this house and therefore had a "greater right" to possession. It is true that the occupant of a home ordinarily would have the right to enter and therefore could not be guilty of burglary. This is consistent with the common-law rule:

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. This is the case of a servant, or boarder, or joint occupant of a room, with the right to enter.

12A C.J.S. Burglary § 23, at 202-03 (1980).

We reject the defendant's argument that he necessarily had the right of entry because he had the "greater right" of possession. Because of the court order, he had no right to enter "any premises occupied by the petitioner and minor children." (Emphasis added.)

Again, under the general rule, a person who has a general right of entry

is guilty of burglary ... if he exceeds his rights either with respect to the time of entering or the place into which he enters. So, a servant, employee, or a guest or boarder, with the right to be in the building or room, may be convicted of burglary on proof that he broke and entered at a time or place beyond his authority, or remains at a time or place beyond his authority.

Id. at 203.

By his own testimony, the defendant knew that the children, and presumably his wife, were in the house before he entered it. Entering the home under these circumstances was expressly prohibited by the restraining order.

We conclude that substantial evidence supported the jury's verdict that the defendant lacked the right to enter the premises.

II. The Justification Instruction.

The defendant raises an issue regarding the legal sufficiency of this instruction given by the court:

Instruction No. 27

The defendant claims he acted with justification.

A person may use reasonable force to prevent criminal interference with his property. The use of this force is known as justification. Justification is only available as a defense to element number 6 of Burglary in the First Degree (instructions number 15 & 16).

The State must prove the defendant was not acting with justification.

(Emphasis added.)

Specifically, he complains that the court should not have limited the defense of justification to element six, i.e., that "he intentionally or recklessly inflicted bodily injury." He contends that the justification defense should also apply to another element of the offense: that he broke or entered "with the specific intent to commit an assault." See Iowa Code § 713.1.

The general rule is that the owner of property may justify an assault on the ground that he acted in defense of his property against an unlawful invasion. 6 Am.Jur.2d Assault and Battery § 81, at 73 (1963).

However,

[i]n defending one's property the owner may only use such force as appears reasonably necessary for that purpose, and must stop short of endangering the life of his adversary or of putting his adversary in danger of suffering great bodily harm except, according to some authorities, where he acts in a legitimate attempt to prevent a felony against himself or his property, or in urgent or extreme cases. The person whose property right is assailed must first use moderate means before resorting to extreme measures in its defense and he may not use force for the protection of his property after the necessity for such protection has passed.

Ordinarily, whether excessive force has been used in defense of property is a question of fact to be determined by the jury.

Id. § 88, at 77; accord 94 C.J.S. Assault and Battery § 94, at 485-86 (1975) (justification limited to reasonably necessary force).

In Iowa, the justification defense is codified in section 704.4, which provides in part:

A person is justified in the use of reasonable force to prevent or terminate criminal interference with the person's possession or other right in property.

"Reasonable force" in turn is defined by section 704.1 as

that force and no more which a reasonable person, in like circumstances, would judge to be...