                    IN THE COURT OF APPEALS OF IOWA

                                     No. 16-1087
                                  Filed May 3, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

EARL LEONARD NELSON JR.,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, David N. May, Judge.



      Earl Nelson Jr. appeals his convictions for burglary in the third degree and

possession of burglar’s tools. AFFIRMED.




      Mark C. Smith, State Appellate Defender, and Brenda J. Gohr, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Martha E. Trout, Assistant

Attorney General, for appellee.




      Considered by Vaitheswaran, P.J., Tabor, J., and Mahan, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2017).
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MAHAN, Senior Judge.

       Earl Nelson Jr. appeals his convictions for burglary in the third degree and

possession of burglar’s tools, challenging the sufficiency of the evidence to

support the jury’s findings of guilt and claiming the district court failed to state

sufficient reasons for the sentence imposed.

I.     Background Facts and Proceedings

       The State charged Nelson with burglary in the third degree, as an habitual

offender, and possession of burglar’s tools, following a burglary of an Ankeny

Best Buy storage unit. See Iowa Code §§ 713.1, 713.6A(1), 713.7, 902.9(1)(c)

(2015). Nelson pled not guilty, and the case proceeded to trial. The jury found

Nelson guilty on both counts, Nelson stipulated to two prior felony convictions to

establish his status as an habitual offender, and the district court entered

judgment and imposed sentences. Nelson appeals. Facts specific to his claims

will be set forth below.

II.    Standards of Review

       We review challenges to the sufficiency of the evidence for correction of

errors at law. State v. Howse, 875 N.W.2d 684, 688 (Iowa 2016). “In reviewing

challenges to the sufficiency of evidence supporting a guilty verdict, courts

consider all of the record evidence viewed in the light most favorable to the State,

including all reasonable inferences that may be fairly drawn from the evidence.”

State v. Showens, 845 N.W.2d 436, 439-40 (Iowa 2014) (citation omitted). The

jury’s verdict is binding on appeal unless there is an absence of substantial

evidence in the record to sustain it. State v. Leckington, 713 N.W.2d 208, 213

(Iowa 2006). Evidence is substantial if it would convince a rational trier of fact
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the defendant is guilty beyond a reasonable doubt. See Howse, 875 N.W.2d at

688.

       We review Nelson’s claim that the district court failed to state sufficient

reasons for the sentences imposed for an abuse of discretion. See State v.

Thacker, 862 N.W.2d 402, 405 (Iowa 2015).

III.   Sufficiency of the Evidence

       Nelson challenges the sufficiency of the evidence to sustain his

convictions.

       A.      Burglary in the Third Degree

       The jury was instructed the State would have to prove the following

elements of burglary in the third degree:

                1. On or about the 29th day of November, 2015, the person
       the defendant aided and abetted broke or entered into a Best Buy
       storage trailer located at 1955 SE Delaware, Ankeny, Iowa.
                2. The Best Buy storage trailer located at 1955 SE
       Delaware, Ankeny, Iowa, is an occupied structure as defined in
       Instruction No. 20.
                3. The person the defendant aided and abetted did not have
       permission or authority to break or enter into the Best Buy storage
       trailer located at 1955 SE Delaware, Ankeny, Iowa.
                4. The person the defendant aided and abetted did so with
       the specific intent to commit a theft.

See Iowa Code §§ 713.1, 713.6A. The jury was further instructed:

               “Aid and abet” means to knowingly approve and agree to the
       commission of a crime, either by active participation in it or by
       knowingly advising or encouraging the act in some way before or
       when it is committed. Conduct following the crime may be
       considered only as it may tend to prove the defendant’s earlier
       participation. Mere nearness to, or presence at, the scene of the
       crime, without more evidence, is not “aiding and abetting.”
       Likewise, mere knowledge of the crime is not enough to prove
       “aiding and abetting.”
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See Iowa Code § 703.1.        According to Nelson, “The State presented zero

evidence that Nelson approved and agreed to commit the burglary with [Brian]

Nall.”

         The jury was presented with surveillance video footage from an Ankeny

Kum & Go store depicting Nelson and Nall arriving to the store in a white van in

the early morning on November 29, 2015. Nelson and Nall entered the store and

purchased two drinks, two sandwiches, and cigarettes.        The video showed

Nelson and Nall leaving Kum & Go at approximately 1:45 a.m.; the Kum & Go

store was approximately five to ten minutes from Best Buy.

         Shortly after 2:00 a.m., Ankeny police officers responded to an alarm

sounding on a storage unit at Best Buy.      Officers discovered Nall inside the

storage unit.    According the Best Buy manager, no one had permission or

authority to be in the storage unit or remove anything from it.     The officers

discovered the white van nearby with its driver’s side door open; inside the van,

officers found bolt cutters and two bags containing boxes with the address of the

Ankeny Best Buy affixed to them. Also inside the van, officers found Nall’s cell

phone in the console, two drinks from Kum & Go, and an uneaten sandwich.

         Just before the officers found Nall inside the storage unit, one of the

officers observed a large male in a dark coat and gloves walking away from the

storage unit. Officers searched the area and discovered a checkered coat with

cigarettes and a cell phone in the front pocket, a mask, gloves, and part of a

padlock. The Kum & Go surveillance video depicted Nelson wearing a coat

similar to the coat discovered near the scene.
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       At 3:30 a.m., the Ankeny Walmart store contacted police with information

that Nelson was at Walmart, buying a sweatshirt and looking for a taxi ride.

Police responded to Walmart and questioned Nelson, who stated he had left his

coat in “Robin’[s]” car when she dropped him off at Walmart following an

argument. Meanwhile, the cell phone found in the checkered coat rang; the

caller was listed as “Robin.”

       We, like the district court, determine the record contains substantial

evidence from which the jury could infer Nelson’s participation in the burglary.

We affirm on this issue.

       B.     Possession of Burglar’s Tools

       The jury was instructed the State would have to prove the following

elements of possession of burglar’s tools:

              1. On or about the 29th day of November, 2015, the
       defendant aided and abetted a person who had in his possession
       bolt cutters.
              2. The person the defendant aided and abetted intended to
       use the bolt cutters to commit a burglary.

See id. § 713.7.

       According to Nelson, “The piece of the lock that was found near the scene

could not be positively identified as the lock from the Best Buy trailer,” and “the

State failed to prove that Nelson had any knowledge of the bolt cutters being in

Nall’s possession or that Nall intended to use the bolt cutters to commit a

burglary.”

       The jury was presented with evidence that Nelson drove a white van away

from Kum & Go at approximately 1:45 a.m.; the van was located shortly

thereafter at the Best Buy storage unit with its driver’s side door open. Inside the
                                         6


van were two different bolt cutters, as well as bags containing stolen property

from Best Buy.

       Circumstantial and direct evidence are equally probative, see State v.

O’Connell, 275 N.W.2d 197, 205 (Iowa 1979), and “[i]nferences are a part of our

law and the practice of identifying specific inferences that may be drawn from

general categories of evidence gives the jury an important focal point and

tightens the analysis to eliminate inferences not supported by the evidence.”

State v. Ambrose, 861 N.W.2d 550, 561 (Iowa 2015). Although the State did not

confirm the partial padlock the officers discovered was the padlock from the

storage unit, it was logical for the jury to find from the evidence that bolt cutters

were used to remove the storage unit’s padlock.          We determine the record

contains substantial evidence from which the jury could infer Nelson aided and

abetted the possession of burglar’s tools. We affirm on this issue.

IV.    Sentencing Decision

       Nelson also claims the district court failed to state sufficient reasons for

the sentence imposed. Before imposing Nelson’s sentences, the district court

heard the parties’ recommendations and reviewed the presentence investigation

report. The court sentenced Nelson to an indeterminate term of incarceration not

to exceed fifteen years, with a three-year mandatory minimum, for the charge of

burglary in the third degree as an habitual offender and an indeterminate term

not to exceed two years for the charge of possession of burglar’s tools; the court

ordered the sentences be imposed concurrently. The court stated its reasons for

the sentences as follows:
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             I have considered all the sentencing options provided for in
      Chapters 901 and 907 of the Iowa Code, and my judgment, relative
      to sentencing, is based on that which would provide maximum
      opportunity for your rehabilitation, at the same time protecting the
      community from further offenses by you and others.
             In selecting this particular sentence for you, I have
      considered your age, prior criminal record, employment history,
      family circumstances, nature of the offense committed, your interest
      in rehabilitation, and the potential for rehabilitation.

The court also set forth the same bases for the sentences in the written

sentencing order.

      Iowa Rule of Criminal Procedure 2.23(3)(d) requires the court to “state on

the record its reason for selecting the particular sentence.” According to Nelson,

the court failed to “elaborate the specific reasons that apply to [him] that would

justify the particular sentence imposed.”     “[T]he nature of the offense; the

attendant circumstances; and the defendant’s age, character, propensities, and

chances of reform are ‘minimal essential factors’ to be considered when

exercising sentencing discretion.” State v. Dvorsky, 322 N.W.2d 62, 67 (Iowa

1982) (quoting State v. Hildebrand, 280 N.W.2d 393, 396 (Iowa 1979)).

      Here, the sentences imposed were within statutory limits, see State v.

Neary, 470 N.W.2d 27, 29 (Iowa 1991) (“When a sentence is imposed within

statutory limits, it will be set aside only for an abuse of discretion.”), and the

court’s reasons were “sufficient to enable us to determine if an abuse of

discretion occurred.” State v. Boltz, 542 N.W.2d 9, 11 (Iowa Ct. App. 1995).

Discerning no abuse of discretion, we affirm Nelson’s sentences.
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V.    Conclusion

      Upon consideration of the issues raised on appeal, we affirm Nelson’s

convictions and sentences for burglary in the third degree as an habitual offender

and possession of burglar’s tools.

      AFFIRMED.
