                   IN THE COURT OF APPEALS OF IOWA

                                  No. 14-1449
                            Filed December 9, 2015

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

BENJAMIN ELLIOTT LANE,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Black Hawk County, Todd A. Geer,

Judge.



      Defendant appeals his convictions for first-degree burglary and second-

degree sexual abuse. AFFIRMED.



      Benjamin Bergmann of Parrish, Kruidenier, Dunn, Boles, Gribble, Gentry,

Brown & Bergmann, L.L.P., Des Moines, for appellant.

      Thomas J. Miller, Attorney General, Kevin Cmelik and Heather Ann

Mapes, Assistant Attorneys General, for appellee.



      Considered by Doyle, P.J., and Mullins and Bower, JJ.
                                         2



BOWER, Judge.

      Defendant Benjamin Lane appeals his convictions for first-degree burglary

and second-degree sexual abuse.        Lane claims the district court improperly

denied his motion to suppress and there was insufficient evidence to support the

convictions. We find the district court properly denied Lane’s motion to suppress

based on his claims (1) he was denied his rights under Iowa Code section 804.20

(2013) because he was not permitted to see his mother; (2) he did not knowingly

and intelligently waive his Miranda rights; and (3) he did not knowingly,

voluntarily, and intelligently consent to a search of his person. We also find there

was sufficient evidence in the record to show (1) Lane broke into the residence;

(2) he did not have permission or authority to enter the residence; (3) he was

armed with a dangerous weapon; and (4) while committing sexual abuse he used

or threatened to use force creating a substantial risk of death or serious injury.

We affirm his convictions.

I.    Background Facts & Proceedings

      Lane was a tenant at a house in Cedar Falls, Iowa, where the tenants

shared common areas, but each had a private bedroom. Prior to September

2013, Lane left that residence and moved in with his parents. Although he was

to give the key to the house back to the owners when he moved out, he did not

do so. After Lane moved out, J.C. became a tenant at the house. She was not

acquainted with Lane.

      On September 26, 2013, one of the tenants, Jayden Johnson, invited

Lane over to the house.       Lane and Johnson spent several hours playing
                                         3



computer games in the common area of the house. Lane left at about 1:00 a.m.

on September 27, 2013, and Johnson then locked the front door.

       J.C. testified that in the early morning hours of September 27, 2013, a

man wearing a ski mask and dark clothing opened the door to her bedroom and

came in. The intruder displayed a knife and said, “If you scream, I’ll kill you.” He

put the knife against her arm and stated he would cut her throat. He put duct

tape over her mouth, took off her clothing, and slapped her breasts repeatedly.

He put his finger and hand in her vagina and a finger in her anus. He placed a

hand on her neck in a choking fashion. When the man left, J.C. looked out her

window and saw the taillights of a Ford Mustang. She remembered she had

seen a Ford Mustang parked outside the house earlier in the day.

       J.C. asked one of her roommates to call 911. She informed Johnson she

believed the intruder had been his friend, who he identified as Lane. J.C. was

bleeding quite profusely as a result of the assault. She was taken by ambulance

to the hospital, where she required surgery to repair her injuries.

       Officers went to the home of Lane’s parents on the morning of September

27, 2013, requesting Lane come to the Cedar Falls Police Department to be

interviewed. Lane’s mother, Pamela Lane, drove him to the police station. Lane

was taken to an interview room, where he was informed he was free to leave at

any time, and he retained possession of his cell phone throughout the interview.

He initially denied going back to the house after playing computer games. The

officers observed dried blood on Lane’s knee. He consented to a search of his

person, including a sample of the dried blood.
                                         4



       When officers requested consent to search his vehicle, Lane stated he felt

like he was being forced, but agreed. The car was registered to Pamela and he

said, “Go talk to my mom.”      Pamela told officers they would need a search

warrant, so officers began the process to obtain search warrants for Lane’s

person, the car, and his house. At that time Lane was told he was in custody and

no longer free to leave. The officers informed Lane of his Miranda rights. He

was left alone in the interview room.

       Lane told an officer he wanted to speak to his mother. He was informed

Pamela had gone home. Although he was still in possession of his cell phone,

he did not attempt to call her, nor did he ask the officers if he could call his

mother from a police telephone. A few seconds later, he summoned an officer

and said, “I did it.” He gave a detailed confession to the offenses. Lane told the

officers of the location of the knife, ski mask, duct tape, and clothing he had been

wearing. He stated he entered the residence with a key he had retained.

       The officers obtained search warrants for Lane’s person, vehicle, and

home. They took a new sample of the blood on Lane’s knee. In searching

Lane’s home, the officers found the items used in the offenses in the areas

where Lane said they would be located. J.C.’s blood was found on the knife, the

duct tape, Lane’s pants, his sock, and his knee.

       Lane was charged with burglary in the first degree, in violation of Iowa

Code section 713.3, and sexual abuse in the second degree, in violation of

section 709.3. Lane filed a motion to suppress, claiming (1) he was denied his

rights under section 804.20 because he was not permitted to see his mother; (2)
                                         5



he did not knowingly and intelligently waive his Miranda rights; and (3) he did not

knowingly, voluntarily, and intelligently consent to a search of his person.

       After a hearing, the district court denied the motion to suppress. The court

found Lane had not been denied his rights under section 804.20. The court

determined the Miranda warning was properly administered, and Lane

understood and acknowledged those rights. The court additionally concluded

Lane voluntarily consented to a search of his person.

       Lane requested a bench trial. The district court found Lane guilty of first-

degree burglary and second-degree sexual abuse. The court specifically found,

“J.C.’s testimony was highly credible.” The court found the knife used by Lane

was a dangerous weapon because he actually used it in such a manner as to

indicate he intended to inflict death or serious injury upon another person, and

the knife was clearly capable of inflicting death when used as intended. The

court also found Lane broke into the residence, even though he used a key,

because he did not have the right or privilege to enter the home at that time, and

his use of the key was unauthorized. Furthermore, he did not have permission or

authority to enter J.C.’s bedroom.

       Lane was sentenced to a term of imprisonment not to exceed twenty-five

years on each offense, to be served consecutively. He now appeals.

II.    Motion to Suppress

       A.     Lane contends the district court should have granted his motion to

suppress his statements to officers because he was denied his right under

section 804.20 to consult a family member. He asserts that when he asked to
                                         6



see his mother officers should have done more to facilitate his request.         He

states that rather than merely stating his mother was no longer at the police

station, the officer should have taken some affirmative action to ensure he was

able to speak to his mother. He states the officer should have informed him he

could call her. He also points out it would not have taken her long to return to the

station, where he could see her as he requested.

       Section 804.20 provides:

               Any peace officer or other person having custody of any
       person arrested or restrained of the person’s liberty for any reason
       whatever, shall permit that person, without unnecessary delay after
       arrival at the place of detention, to call, consult, and see a member
       of the person’s family or an attorney of the person’s choice, or both.

We first determine whether a defendant has invoked his rights under section

804.20. State v. Hicks, 791 N.W.2d 89, 94 (Iowa 2010). We then consider

whether the defendant was afforded the rights guaranteed by section 804.20. Id.

We review the district court’s ruling for the correction of errors at law. State v.

Moorehead, 699 N.W.2d 667, 671 (Iowa 2005).

       Lane asked an officer, “Can I see my mom, please?” This invoked his

rights under section 804.20. “[O]nce section 804.20 is invoked the peace officer

must provide the detainee ‘with a reasonable opportunity’ to contact a family

member or attorney.” Hicks, 791 N.W.2d at 96 (citation omitted). “We hold that

once section 804.20 is invoked, the detaining officer must direct the detainee to

the phone and invite the detainee to place his call or obtain the phone number

from the detainee and place the phone call himself.” Id. at 97. On appeal, the

State concedes that in order to fulfill the requirements of section 804.20, the
                                         7



officer should have advised Lane of his right to call his mother or given him an

opportunity to see her.

       In general, if a defendant’s rights pursuant to section 804.20 have been

violated, evidence obtained as a result of the violation should be excluded. See

State v. Vietor, 261 N.W.2d 828, 832 (Iowa 1978). However, if a defendant’s

statement “was spontaneous, the statement should be admitted into evidence

because the exclusion of such statements is not implicated by a violation of Iowa

Code section 804.20.” Moorehead, 699 N.W.2d at 675. When a defendant’s

statement is spontaneous, the Vietor exclusionary rule does not apply. Id.; see

also State v. Garrity, 765 N.W.2d 592, 597 (Iowa 2009) (“The exclusionary rule

extends to . . . non-spontaneous statements obtained after unnecessary delay in

allowing the person the statutory right to consult with an attorney or family

member.”).

       The district court found, “It is also important to note that it was the

defendant who initiated the contact with law enforcement to give his confession

and that his confession was given spontaneously and voluntarily rather than as a

result of law enforcement questioning.” We find no error in the court’s conclusion

Lane’s statements were given spontaneously. Lane was alone in the interview

room when he indicated he wanted to speak to an officer. The officer did not ask

him any questions at that time. Lane told the officer, “I did it” and gave a detailed

confession to the offenses. Because Lane’s statements were spontaneous, the

exclusionary rule does not apply. See Moorehead, 699 N.W.2d at 675. We
                                           8



conclude the district court properly denied Lane’s motion to suppress based on

his claims under section 804.20.

       B.     Lane asserts the district court should have granted his motion to

suppress because the waiver of his Miranda rights was not knowing, voluntary,

and intelligent. He claims the waiver was not valid because he was particularly

vulnerable to the influence of law enforcement and the waiver was obtained

under intimidating circumstances.1

       The State has the burden to prove by a preponderance of the evidence

that a defendant knowingly and intelligently waived his Miranda rights. State v.

Harris, 741 N.W.2d 1, 6 (Iowa 2007).

       To determine whether a suspect’s waiver of his or her Miranda
       rights was knowing and intelligent, we must inquire if the suspect
       knew that he or she did not have to speak to the police without
       counsel and understood that statements provided to the police
       could be used against him or her.

State v. Ortiz, 766 N.W.2d 244, 252 (Iowa 2009).                 Our review on this

constitutional issue is de novo.      State v. Short, 851 N.W.2d 474, 478 (Iowa

2014). “[W]e give deference to the factual findings of the district court due to its

opportunity to evaluate the credibility of the witnesses, but are not bound by such

findings.” State v. Lane, 726 N.W.2d 371, 377 (Iowa 2007).

       An officer verbally informed Lane of his Miranda rights at the time he was

told he was no longer free to leave the police station. The officer stated, “Do you



1
    Lane also claims he should have been given a written waiver form. There is no
requirement a defendant be given a written waiver form. “Miranda warnings may be
orally transmitted to a subject in custody and the waiver of rights attendant thereto may
be oral or may be inferred from the facts.” State v. Bowers, 656 N.W.2d 349, 353 (Iowa
2002).
                                          9



understand?” and Lane replied, “Yep.” Lane was then left alone in the interview

room for a period of time. He was not questioned by the officers after he was

informed of his rights. After a period of time, Lane asked to speak to his mother.

Shortly after that he told an officer “I did it” and gave a detailed confession to the

offenses.

       At the suppression hearing, Pamela testified Lane “struggled a lot in

school,” needing speech therapy and occupational therapy.           He was a high

school graduate. Pamela stated Lane was nonassertive and nonconfrontational.

Lane was twenty-one years old at the time, just ten days away from turning

twenty-two. He had no previous criminal record, except for a speeding ticket.

       The district court determined:

       Defendant’s Miranda warning was properly administered. There is
       nothing in the record to suggest that defendant did not understand
       his rights. Defendant was not subject to custodial interrogation.
       Rather, defendant subsequently confessed without prompting by
       law enforcement in any way. Defendant’s statements were “freely
       volunteered without compelling influences.”

(Citation omitted.)

       We agree with the district court’s conclusion. Lane’s statements were not

due to the influence of officers, nor were they obtained under intimidating

circumstances, because Lane was alone in a room, not subject to interrogation,

approached an officer, and made incriminating statements. We determine the

district court properly denied Lane’s motion to suppress on this issue.

       C.     Lane claims he did not knowingly, voluntarily, and intelligently

consent to a search of his person. Lane asserts officers obtained DNA samples

from his person, including a sample of the dried blood on his knee, without
                                         10



obtaining a valid consent. He states his consent was the result of duress or

coercion. Lane points out that he consented to a search of his person prior to

being informed of his Miranda rights.

       In general, a warrantless search is considered to be per se unreasonable

under the Fourth Amendment. State v. Lowe, 812 N.W.2d 554, 568 (Iowa 2012).

One of the exceptions to the warrant requirement are searches based on

consent. Id. “[T]he validity of a consent to search is whether the consent was

voluntarily given and not a result of duress or coercion, express or implied.”

State v. Pals, 805 N.W.2d 767, 777 (Iowa 2011). We consider a defendant’s

characteristics,

       such as age, education, intelligence, sobriety, and experience with
       the law; and features of the context in which the consent was given,
       such as the length of detention or questioning, the substance of any
       discussion between the [consenter] and police preceding the
       consent, whether the [consenter] was free to leave or was subject
       to restraint, and whether the [consenter’s] contemporaneous
       reaction to the search was consistent with consent.

Lane, 726 N.W.2d at 378.

       Whether a defendant’s consent is voluntary is a question of fact, to be

determined from all the circumstances. Pals, 805 N.W.2d at 777. It is the State’s

burden to show consent was voluntary. Lane, 726 N.W.2d at 378. Again, our

review on this constitutional issue is de novo. Short, 851 N.W.2d at 478.

       Officers went to the home of Lane’s parents on the morning of September

27, 2013, at about 5:41 a.m.2 Lane’s mother, Pamela, answered the door, and

they told her they needed to speak to Lane. Pamela woke him up, and he met


2
  There was evidence Lane worked a “third-shift type schedule,” where he often stayed
up until 5:00 or 6:00 a.m. and then slept into the afternoon.
                                       11



the officers on the front porch. The officers told Lane there had been an incident

at his former residence and asked him to come to the police station for an

interview. Lane asked if he could talk to them at his house, but the officers

stated they preferred for him to come to the station, and he agreed. Pamela

drove him to the police station.

       At the station, Pamela asked if she could accompany Lane, but because

he was an adult, the officers stated they would speak to him alone. Lane was

taken to an interview room, where he was informed he was free to leave at any

time. He retained possession of his cell phone throughout the interview. The

interview was described as “cordial,” and “[j]ust normal conversation,” by the two

officers conducting the interview. Lane responded appropriately to the officers’

questions. The interview was videotaped.

       Lane was wearing shorts, and the officers observed dried blood on his

knee. The officers asked to take a sample of the blood and to take a swab of the

inside of Lane’s mouth (to obtain a sample of his DNA). Lane was informed he

had the option to refuse to give his consent. Lane said, “I guess so.” He then

signed a written consent form. The written form states, “I have been informed of

my rights under the Fourth Amendment of the Constitution of the United States of

America, which states that I am secure from an unreasonable search and

seizure.”

       The district court found:

             In obtaining consent, there is nothing in the record which
       would indicate that defendant was threatened in any way to provide
       consent. No promises of leniency or promises of any kind were
       made to the defendant to obtain his consent. Examining the totality
                                         12



       of the circumstances, in light of all of the evidence presented at
       hearing, the court concludes that the consent was given freely,
       knowingly, intelligently, and voluntarily. Defendant was specifically
       informed that he did not have to consent.

       On our de novo review, we agree with the district court’s conclusions.

After examining the totality of the circumstances, we conclude the State met its

burden to show Lane’s consent to a search of his person was voluntary. The

evidence does not support Lane’s claim he was subjected to duress or coercion.

Lane was twenty-one years old and had a high school education. He had been

questioned for about one hour and twenty minutes when he consented to the

search. There is no evidence the officers engaged in aggressive or intimidating

tactics or that they improperly made promises of leniency. Lane was specifically

informed he was free to leave the interview room at any time and he was free to

withhold his consent to the search. We affirm the district court’s decision denying

Lane’s motion to suppress on the ground he did not knowingly, voluntarily, and

intelligently consent to a search of his person.3

III.   Sufficiency of the Evidence

       A.     Lane contends there is insufficient evidence in the record to support

his conviction for first-degree burglary. He asserts the State did not present

sufficient evidence to show he broke into the residence. He states the term

“break” implies damage or improper force. Lane claims he did not “break” into

the residence because he used a key and did not use improper force or cause

any damage.


3
   Because we have affirmed based on the district court’s ruling that Lane voluntarily
consented to a search of his person, we do not address the State’s alternative
arguments based on the inevitable discovery doctrine.
                                        13



       We review a challenge to the sufficiency of the evidence for the correction

of errors at law. State v. Keopasaeuth, 645 N.W.2d 637, 639-40 (Iowa 2002).

“The court views the evidence in the light most favorable to the State, including

all reasonable inferences that may be fairly drawn from the evidence.” Id. at 640.

A verdict will be upheld if it is supported by substantial evidence.       State v.

Sanford, 804 N.W.2d 611, 615 (Iowa 2012). “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. We consider all

of the evidence in the record not just the evidence supporting the verdict. State

v. Dalton, 674 N.W.2d 111, 116 (Iowa 2004).

       The trial information alleged that Lane committed first-degree burglary by:

       Having the intent to commit a felony or assault therein and having
       no right, license, or privilege to do so breaks an occupied structure
       in which one or more persons are present and has possession of a
       dangerous weapon or performs or participates in a sex act
       constituting sexual abuse.

The definition of burglary in section 713.1 applies to a person having the intent to

commit a felony, assault, or theft who enters an occupied structure or who breaks

an occupied structure.    The trial information in this case only refers to the

alternative of a person “who breaks an occupied structure.”        See Iowa Code

§ 713.1.

       The meaning of the term “breaking” was discussed in State v. Houghland,

197 N.W.2d 364, 365 (Iowa 1972), where the court stated, “‘Breaking’ means

making an opening into a building by trespass and occurs when an intruder

removes or puts aside some part of the structure relied on as an obstruction to
                                        14



intrusion. Opening an entrance door is a breaking.” See also State v. Clay, 213

N.W.2d 473, 480 (Iowa 1973) (quoting Houghland, 197 N.W.2d at 365).

“Breaking” has also been defined as “the act of entering a building without

permission.”    State v. McCall, 754 N.W.2d 868, 873 (Iowa Ct. App. 2008)

(quoting Black’s Law Dictionary 201 (8th ed. 2004)).

      We determine there is substantial evidence in the record to support the

district court’s conclusion, “Defendant clearly removed and put aside obstructions

to enter the front doorway of [the residence] and the doorway to J.C.’s private

room at that address.” Lane opened the entrance door to the residence and the

entrance door to J.C.’s bedroom. There is sufficient evidence in the record to

show Lane broke into an occupied structure.

      B.       Lane claims there is insufficient evidence in the record to show he

did not have permission or authority to enter the residence. He states he had a

“blanket privilege” to enter the residence. He asserts other tenants knew he still

had a key and continued to use it. He also states it was common for him to enter

the house without asking for permission.

      As an element of burglary, the State must prove a defendant did not have

the right, license, or privilege to enter a structure. State v. Franklin, 368 N.W.2d

716, 718 (Iowa 1985). A person does not commit burglary “if the person entering

has a right to do so, although he may intend to commit, and may actually commit,

a felony.” State v. Peck, 539 N.W.2d 170, 173 (Iowa 1995). A defendant does

not commit burglary if the residents of a house acquiesce to the defendant’s

presence or give him implied consent to enter. State v. King, 344 N.W.2d 562,
                                        15



563 (Iowa Ct. App. 1983). A person who has a general right of entry, however,

may be guilty of burglary “if he exceeds his rights either with respect to the time

of entering or the place into which he enters.” Peck, 539 N.W.2d at 173.

      Only one of the tenants at the residence, Johnson, was aware Lane still

had a key to the residence, and he had never seen Lane use it.             Johnson

testified Lane came over when he was invited, and he did not have any right or

authority to be in the house on his own. The evidence shows Lane did not have

a general right of entry to the residence, except when he was specifically invited

over. Even if Lane had a general right of entry to the common areas of the

residence, he did not have the right to enter the bedrooms of the tenants, which

they uniformly testified were considered private. Furthermore, J.C. specifically

testified Lane did not have permission to enter her bedroom.            On cross-

examination Lane also stated he did not have the right to ever go into J.C.’s

personal bedroom. We find there is sufficient evidence in the record to show

Lane did not have the right, license, or privilege to enter the residence or J.C.

private bedroom.

      C.     Lane asserts there is insufficient evidence in the record to show he

was armed with a dangerous weapon. The information alleged Lane committed

first-degree burglary under section 713.3(1)(b) (“The person has possession of a

dangerous weapon.”) or 713.3(1)(d) (“The person performs or participates in a

sex act with any person which would constitute sexual abuse.”).            The trial

information also alleged Lane committed second-degree sexual abuse under

section 709.3(1) (“During the commission of sexual abuse the person displays in
                                         16



a threatening manner a dangerous weapon, or uses or threatens to use force

creating a substantial risk of death or serious injury to any person.”). Lane claims

there is insufficient evidence to show he used the knife in a manner to indicate he

intended to inflict death or serious injury upon another.

       The term “dangerous weapon” is defined in section 702.7:

              A “dangerous weapon” is any instrument or device designed
       primarily for use in inflicting death or injury upon a human being or
       animal, and which is capable of inflicting death upon a human being
       when used in the manner for which it was designed, . . . .
       Additionally, any instrument or device of any sort whatsoever which
       is actually used in such a manner as to indicate that the defendant
       intends to inflict death or serious injury upon the other, and which,
       when so used, is capable of inflicting death upon a human being, is
       a dangerous weapon.

The parties agree the knife used in this case did not have a blade exceeding five

inches in length, and therefore, was not a dangerous weapon per se. See Iowa

Code § 702.7.

       The State asserts there was substantial evidence in the record to show

Lane actually used the knife in a manner so as to indicate he intended to inflict

death or serious injury upon J.C., and the knife was capable of inflicting death

upon a human being. “[A]n accused satisfies this definitional requirement when

the accused objectively manifests to the victim his or her intent to inflict serious

harm upon the victim.” State v. Ortiz, 789 N.W.2d 761, 767 (Iowa 2010). “[A]

defendant objectively indicates intent to inflict harm when the defendant engages

in a personal confrontation with another while possessing an instrument capable

of causing bodily harm.” Id.
                                         17



       The knife used by Lane was nine inches long, with a blade four and one-

eighth inches long. Lane stated he brought the knife to J.C.’s bedroom because

he wanted to scare her. When he entered the room, he told J.C., “If you scream,

I’ll kill you,” and held the knife against her arm. He continued to hold the knife to

her as he tore off her shirt and slapped her breasts. J.C. told a nurse Lane told

her, “he would cut her or harm her if she would move or scream and the threat

was to cut her throat.” We conclude there is substantial evidence in the record to

show Lane objectively manifested to J.C. his intent to inflict serious harm upon

her. See id. This satisfied the definitional requirement to show he actually used

the knife in a manner to indicate he intended to inflict death or serious injury upon

another. See id. Lane does not dispute the knife was capable of inflicting death

upon a human being. We conclude there is substantial evidence to show Lane

was armed with a dangerous weapon.

       D.     Finally, Lane claims there is not sufficient evidence in the record to

show he used or threatened to use force creating a substantial risk of death or

serious injury. He asserts he did not use sufficient force to create a substantial

risk of death or serious injury. He states that while J.C. was injured, she was

able to be treated and she healed completely.

       Under section 709.3(1), a person commits sexual abuse in the second

degree when “During the commission of sexual abuse the person displays in a

threatening manner a dangerous weapon, or uses or threatens to use force

creating a substantial risk of death or serious injury to any person.” (Emphasis

added.) “Violations of section 709.3 include acts of sexual abuse where the
                                        18



person displays a dangerous weapon, or uses or threatens force creating a

substantial risk of death or serious injury to any person.” State v. Oliver, 812

N.W.2d 636, 641 (Iowa 2012).        There is no requirement that the defendant

actually causes death or serious injury to the victim. State v. Taylor, 538 N.W.2d

314, 315-16 (Iowa Ct. App. 1995).

       The evidence shows that while displaying a knife, Lane threatened to kill

J.C. There was also evidence he threatened “he would cut her or harm her if she

would move or scream and the threat was to cut her throat.” Thus, there is

substantial evidence to show he threatened to use force creating a substantial

risk of death or serious injury.

       We affirm Lane’s convictions.

       AFFIRMED.
