State v. Sangster, 63904

• Decision Date: 17 December 1980
• Docket Number: No. 63904,63904
• Citation: State v. Sangster, 299 N.W.2d 661 (Iowa 1980)
• Parties: STATE of Iowa, Appellee, v. William E. SANGSTER, Appellant.
• Court: Iowa Supreme Court

Page 661

299 N.W.2d 661

STATE of Iowa, Appellee, v.William E. SANGSTER, Appellant.

No. 63904.

Supreme Court of Iowa.

Dec. 17, 1980.

Randy J. Hohenadel of Newport, Fortini & Hohenadel, Davenport, for appellant.

Thomas J. Miller, Atty. Gen., Richard L. Cleland, Asst. Atty. Gen., and Stephen L. Schalk, Asst. County Atty., for appellee.

Considered by REYNOLDSON, C. J., and HARRIS, McCORMICK, ALLBEE, and LARSON, JJ.

McCORMICK, Justice.

DefendantWilliam E. Sangster appeals his conviction by jury and sentence for burglary in the second degree in violation of section 713.3, The Code.He challenges the sufficiency of the evidence and the refusal of the trial court to submit trespass as a lesser included offense.We reverse and remand on the lesser included offense issue.

I.Sufficiency of the evidence.Defendant moved for directed verdict at the close of the evidence.He alleged the evidence was insufficient to permit submission of the case to the jury.The trial court overruled the motion, and defendant assigns the ruling as error.

This assignment is reviewed under familiar principles which need not be repeated here.SeeState v. Holderness, 293 N.W.2d 226, 235(Iowa1980).In applying those principles, we draw no distinction between the probative value of direct and circumstantial evidence.

Defendant was charged with burglary of a private garage adjacent to a residence at 1935Perry Street in Davenport.Substantial evidence supports the following findings.In the evening of March 1, 1979, two Davenport police officers had defendant and Eugene Watson under surveillance in a residential neighborhood.Defendant and Watson separated to walk on opposite sides of the street, each man looking into cars parked on his side.When they arrived at 1935Perry Street, Watson went to the front door, knocked once, opened the screen door, and then bent over briefly at the front door.He left there when some young people crossed the street in the direction of the premises.Defendant remained on the sidewalk during this time, looking up and down the street.He and Watson left the scene for a few minutes but returned when the people who had crossed the street were gone.Defendant and Watson walked to the garage door.Defendant entered the garage while Watson remained outside.The officers saw the light of a flashlight while defendant was in the garage.They decided to arrest the two men.As they drove toward the site, defendant ran out of the garage.He and Watson were then arrested.

In a search following the arrest, a flashlight was found in defendant's possession.The pattern of his shoes matched wet shoeprints discovered on the floor of the garage.Watson had a screwdriver which matched a pry mark on the front door jam of the home.

This court has not delineated the elements of burglary under the definition in section 713.1.They are, however, plainly spelled out in the statute.Three alternative offenses are defined.They have two elements in common.The common elements are the requisite intent and absence of authority.The requisite intent is "the intent to commit a felony, assault or theft (in the place involved)."Id.The requisite absence of authority is "no right, license or privilege" to do the act involved.Id.When those elements exist, a person is guilty of burglary who (1)"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 (2)"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 (3) "who breaks an occupied structure of other place where anything of value is kept....Id.

Burglary in the first degree requires proof of an additional element specified in section 713.2.All other burglary is burglary in the second degree.§ 713.3.

In the present case, defendant was charged with burglary in the second degree.The State sought to establish his guilt under the first alternative definition of the offense.It alleged he entered the garage with intent to commit theft.In asserting the trial court erred in overruling his motion for directed verdict, defendant contends the evidence was insufficient for the jury to find that he entered the garage, that the garage was the kind of structure or area specified in the statute, and that he possessed the required intent.

We find each element was supported by sufficient evidence.It is true the officers did not actually see defendant enter the garage.However, they observed him leave it.This sufficiently proved his entry.Moreover, substantial evidence tended to show the garage was an "occupied structure."As defined in section 702.12, an occupied structure includes a structure adapted "for the storage or safekeeping of anything of value."The evidence showed an automobile was stored in the garage.The structure was thus adapted for the storage of property having value.Finally, defendant's intent to commit theft could reasonably be inferred from the evidence of surreptitious entry and other circumstances.SeeState v. Clay, 213 N.W.2d 473, 480(Iowa1973).

We find no merit in defendant's challenge to the sufficiency of the evidence.

II.The lesser included offense issue.In State v. Furnald, 263 N.W.2d 751(Iowa1978), we held that criminal trespass as defined in sections 729.1and729.2, The Code 1975, was not a lesser included offense of breaking and entering as defined in section 708.8, The Code 1975(now repealed).We have not decided, however, whether criminal trespass is a lesser included offense of burglary as the offenses are defined in the present Code.The issue was presented but not reached in State v. Rouse, 290 N.W.2d 911(Iowa1980).It is squarely before us in this case.

The standards for determining when an offense is included in another are the same now as when Furnald was decided.The principles applied there apply here.Two tests must be satisfied:

The first is the legal or element test.The lesser offense must be composed solely of some but not all elements of the greater crime.The second, "factual" test is an ad hoc determination whether there is a factual basis in the record for submitting the included offense to the jury.

Furnald, 263 N.W.2d at 752.

To satisfy the legal test, the minor offense must be an elementary part of the major offense.Id.The lesser offense is necessarily included in the greater offense if it is impossible to commit the greater without also committing the lesser.State v. Redmon, 244 N.W.2d 792, 801(Iowa1976).If the lesser offense contains an element not required for the greater offense, the lesser cannot be included in the greater.This is because it would be possible in that situation to commit the greater without also having committed the lesser.SeeC. Wright, Federal Practice and Procedure§ 515 at 374-75(1969).

The elements of an offense are determined by the statute defining it rather than by the charge or the evidence.Redmon, 244 N.W.2d at 801.When the statute defines an offense alternatively, the relevant definition is the one for the offense involved in the particular prosecution.State v. Young, 293 N.W.2d 5, 7(Iowa1980);Furnald, 263 N.W.2d at 754.

When the elements of the major offense are identified, the next inquiry is whether the elements...