                    IN THE COURT OF APPEALS OF IOWA

                               No. 4-13 / 12-2279
                              Filed March 12, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ERIC ALANDA MIMS,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Polk County, Richard G. Blane II,

Judge.



       Eric Mims challenges the sufficiency of the evidence to support his

conviction of burglary in the second degree. AFFIRMED.




       Mark C. Smith, State Appellate Defender, and Patricia Reynolds, Assistant

Appellate Defender, for appellant.

       Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney

General, John P. Sarcone, County Attorney, and David Porter, Assistant County

Attorney, for appellee.



       Considered by Danilson, C.J., and Vaitheswaran and Mullins, JJ.
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DANILSON, C.J.

      Eric Mims challenges the sufficiency of the evidence to support his

conviction of burglary in the second degree, in violation of Iowa Code sections

713.1 and .5(1)(b) (2011). Because the jury could reasonably determine that

Mims had the specific intent to permanently deprive the owner of the items taken

from her occupied residence, we affirm the conviction.

      The defendant’s sole argument on appeal is that he used the stolen items

(credit cards, insurance cards, and identification) as a means to get his car back

from the victim’s daughter, which—while “childish”—contradicts a finding of a

specific intent to permanently deprive the victim of her items. The district court

rejected the argument: “And if [the defendant] didn’t get his car keys back or

possession of his vehicle, the opposite argument is then he wasn’t going to

return [the victim’s] items to her. It was his bargaining chip. And I think the jury

can hear that evidence and make their decision.” We agree.

      We conclude a rational jury could infer a specific intent to permanently

deprive the victim of property where a defendant places conditions upon the

return of the property he has no right to impose. One commentator states,

               One who takes another’s property intending at the time he
      takes it to use it temporarily and then to return it unconditionally
      within a reasonable time—and having a substantial ability to do
      so—lacks the intent to steal required for larceny. It should be noted
      that it is the intent to return the property, not its actual return, which
      constitutes the defense to larceny: one who takes another’s
      property intending at the time of taking to deprive the owner
      permanently is nevertheless guilty of larceny, though he later
      (becoming frightened, or his better nature prevailing) decides to
      return it and does so.
               Conversely, an intent to return is a defense though some
      unexpected obstacle prevents an actual return. An intent to return,
      to be a defense, need not be an intent to return it to the exact spot
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       from which it was taken if the intent is to return it to a place
       sufficiently near so that the owner is substantially certain to find it or
       get it back. The intent to return, however, must be unconditional.
       Thus it is no defense to larceny that the taker intended to return it
       only if he should receive a reward for its return, or only upon some
       other condition which he has no right to impose.

See Wayne R. LaFave, 3 Subst. Crim. L. § 19.5(b) (2d ed.) (emphasis added)

(footnotes omitted) (current through October 2013), http://westlaw.com (last

visited Feb. 20, 2014); see also People v. Davis, 965 P.2d 1165, 1169 (Calif.

1988) (concluding the defendant’s intent to claim ownership of the shirt and to

return it to store only on condition that the store pay him a “refund” constitutes an

intent to permanently deprive within the meaning of the law of larceny); Carter v.

Commonwealth, 694 S.E.2d 590, 595 (Va. 2010) (quoting LaFave commentary).

We conclude an intent to return items belonging to another on condition the

defendant has no right to assert can support an inference of specific intent to

permanently deprive the owner of the property. Moreover, a claim of right to

property taken may not serve to negate intent to a charge of burglary. State v.

Miller, 622 N.W.2d 782, 785 (Iowa Ct. App. 2000) (concluding the claim-of-right

defense provided in Iowa Code section 714.4 is only applicable to theft charges).

Here, Mims lacked both a claim of right and a right to impose a condition before

returning the property.

       We therefore affirm the conviction.

       AFFIRMED.
