                    IN THE COURT OF APPEALS OF IOWA

                                  No. 18-0323
                           Filed November 27, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

MARLON DERELL HARRIS, JR.,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, Bradley J.

Harris, Judge.



      Marlon Harris Jr. appeals his convictions of first-degree robbery and

second-degree theft. AFFIRMED.



      Christopher A. Clausen of Clausen Law Office, Ames, for appellant.

      Thomas J. Miller, Attorney General, and Israel Kodiaga, Assistant Attorney

General, for appellee.



      Considered by Vaitheswaran, P.J., and Potterfield and Mullins, JJ.
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VAITHESWARAN, Presiding Judge.

       The State charged Marlon Harris Jr. with several crimes arising from the

robbery of a Waterloo liquor store and the subsequent theft of a truck and some of

its contents. Following a bench trial, the district court found Harris guilty of first-

degree robbery, second-degree theft, and possession of a controlled substance.

On appeal, Harris challenges the sufficiency of the evidence supporting the

robbery and theft charges.

       The district court required the State to prove the following elements of first-

degree robbery:

              1. That on or about the 8th day of January, 2017, the
       defendant had the specific intent to commit a theft.
              2. To carry out his intention or to assist him in escaping from
       the scene, with or without the stolen property, the defendant:
                      a. Committed an assault upon another,
                      b. Threatened another with or purposefully put another
              in fear of immediate serious injury, or
                      c. Threatened to commit immediately any forcible
              felony.
              3. The defendant was armed with a dangerous weapon.

Harris does not challenge the evidence supporting the first two elements. He

focuses on the third element—being armed with a dangerous weapon. When the

State did not produce the firearm used in the robbery, Harris offered and had

admitted a BB gun, which he testified was the gun seen on video footage of the

liquor store. He argues the “BB gun was designed for target practice and little else”

and “[t]here is no evidence in the record to show that a BB gun of this nature was

designed to kill or injure a person or an animal.”

       A “dangerous weapon” is statutorily defined as:

       [A]ny instrument or device designed primarily for use in inflicting
       death or injury upon a human being or animal, and which is capable
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       of inflicting death upon a human being when used in the manner for
       which it was designed, except a bow and arrow when possessed and
       used for hunting or any other lawful purpose. 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. Dangerous weapons include but are not limited to any
       offensive weapon, pistol, revolver, or other firearm, dagger, razor,
       stiletto, switchblade knife, knife having a blade exceeding five inches
       in length, or any portable device or weapon directing an electric
       current, impulse, wave, or beam that produces a high-voltage pulse
       designed to immobilize a person.

Iowa Code § 702.7 (2017). The district court found that the gun used in the robbery

of the liquor store was a firearm:

               The State admitted into evidence State’s exhibit A which was
       a CD of the video cameras in place at [the] liquor store. Camera
       number 3 as shown on State’s exhibit A at 2:13 shows the item which
       defendant removed from his pants at [the] liquor store. Although
       similar to the BB gun admitted as defendant’s exhibit 1, the item
       shown in State’s exhibit A does not have a black space on the top
       silver portion of the object. This discrepancy and defendant’s prior
       felony conviction and convictions for offenses involving truthfulness
       cause the court to find the testimony of the store employees to be
       more believable. The court therefore determines that the State has
       proven beyond a reasonable doubt that defendant did have in his
       possession during the time he was present in [the] liquor store a
       firearm.

The court’s findings are supported by substantial evidence.           See State v.

McFadden, 320 N.W.2d 608, 614 (Iowa 1982). One of the liquor store employees

had a clear view of the gun from “[o]ne f[oo]t away,” “[l]ike he was right there.” He

could see “the trigger, the handle, and some of the stock part.” He described the

gun as “metal” and having “a black handle and silver top.” He believed the gun

was real. Another store employee also saw the gun. She was familiar with guns

and testified Harris’ firearm did not appear to be a BB gun or pellet gun. She
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described it as a black metal semi-automatic, with a flat-tipped hammer, “almost

like a 9 millimeter.”

       The district court reasonably credited the employees’ testimony over

Harris’s description of the gun. State v. Dalton, 674 N.W.2d 111, 118 (Iowa 2004)

(“A fact-finder, of course, may choose to believe one witness and not another.”).

But, even if the gun was a BB gun, there was substantial evidence from which the

district court could have found it was a dangerous weapon. See State v. Dallen,

452 N.W.2d 398, 398 (Iowa 1990) (concluding the State presented sufficient

evidence to permit the jury to find a BB gun was a dangerous weapon); State v.

Johnson, No. 05-0558, 2006 WL 1279119, at *2–3 (Iowa Ct. App. May 10, 2006)

(citing cases and noting question of whether BB gun is a dangerous weapon was

a question for the fact-finder).

       Moving to the theft charge, the district court required the State to prove the

following elements of second-degree theft:

              1. On or about the 8th day of January, 2017, the defendant
       took possession or control of property of Cole Siegle.
              2. The defendant did so with the intent to deprive Cole Siegle
       of the property.
              3. The value of the property taken . . . exceeds $1000 but does
       not exceed $10,000.

The court found that, after the incident at the liquor store, Harris went to a

convenience store and “drove off in a pickup truck owned by Cole Siegle.” The

truck contained “a toolbox, a laptop computer in bag, a blue socket kit, a cellphone

and several other tools” as well as another “large toolbox also filled with tools.” An

officer saw a person later identified as Harris standing in the doorway of an
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apartment building with “a large object in his hands.” As she approached, the man

dropped what he was holding and ran. The court further found the following facts:

               Located inside the apartment building were several items
       identified by Cole Siegle as having been located within the cab of
       his truck when it was taken from [the convenience store]. In the
       parking lot, Siegle also identified his truck with those tools which
       had been in the back of the truck still in their original position.
       Siegle testified that the value of all the tools located in his truck as
       approximately $20,000 but that the value of those tools which had
       been removed from the cab of his truck included a toolbox valued
       at approximately $3000, a laptop computer and bag valued at
       $800, a cellphone valued at $700, a key fob valued at $170,
       miscellaneous tools valued at between $300 and $400.

Harris admits taking the truck but contends, “[N]o one found [him] with tools or any

items from the truck.” To the contrary, the officer who saw the man drop an object

outside the apartment building later identified the man as Harris. The dropped

object was later identified as property taken from Siegle’s truck. Again, the court’s

findings are supported by substantial evidence.

       We affirm Harris’ judgment and sentence for first-degree robbery and

second-degree theft.

       AFFIRMED.
