                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-0552
                                Filed May 6, 2015

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JOSHUA TIMOTHY WILSON,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Scott County, Henry W. Latham III,

Judge.



      A defendant appeals his conviction for aiding and abetting an attempted

burglary. REVERSED AND REMANDED.



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

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Kevin Cmelik and Linda J. Hines,

Assistant Attorneys General, Michael J. Walton, County Attorney, and Dion D.

Trowers, Assistant County Attorney, for appellee.



      Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
                                           2



TABOR, J.

       Joshua Wilson contends the State failed to prove beyond a reasonable

doubt that he aided and abetted his friend Christopher Lyman in an attempted

burglary. Even viewing the evidence in the light most favorable to the State, we

find proof of little more than Wilson’s presence at the scene of the thwarted

break-in. Because the State did not offer substantial evidence to prove Wilson’s

specific intent to commit a theft or his active participation in or encouragement of

his friend’s alleged criminal act, we reverse the conviction and remand for

dismissal.1

       I.     Background Facts and Proceedings

       The jury could have found the following facts from the evidence presented

at trial. Davenport resident Troy Gutknecht went to bed around midnight on

October 21, 2013, but heard suspicious noises at his front door. He “got up to

investigate” and went to his kitchen where he had a direct view of the front door.

Gutknecht recalled: “I saw the handle wiggling and I saw a figure in the window

behind the blinds.” Gutknecht, who was in the nude, “charged the front door and

threw the blind open and started screaming at the person in the window.”

Gutknecht could see the man inside the storm door “working on the lock.”

Gutknecht yelled: “What the hell are you doing?”2




1
  Because we reverse on the sufficiency claim, we do not need to consider Wilson’s
remaining issues.
2
  Gutknecht said someone looking in the living room window could have seen his wife’s
computer and iPad mini sitting on the floor next to the couch and his wallet resting on a
table.
                                          3



          The would-be intruder, later identified as Christopher Lyman, said he was

looking for his friend Brandon’s house. Gutknecht yelled back: “You don’t have a

friend here and I’m calling the cops.” Gutknecht also recalled Lyman turning to

someone on his left, out of Gutknecht’s line of sight, and saying: “Look at this

MF’er tripping on me.” Lyman then took off, heading westbound down High

Street.

          Meanwhile, Gutknecht’s wife was on the phone with the 911 operator.

Gutknecht relayed the direction of Lyman’s departure to the police. Within about

five minutes, police responded to the dispatch and apprehended two suspects in

the vicinity of Gutknecht’s house. Gutknecht identified Lyman as the person at

his door. Davenport police searched Lyman and found two flashlights, a box

cutter, and black gloves.

          The police also identified a second suspect about fifty to seventy five

yards away from where they stopped Lyman. According to Officer Jacob Pries,

the second suspect, Joshua Wilson, “came walking out” of an alley.           Pries

testified Wilson “was breathing pretty heavily, he was sweating profusely. He

had the appearance of just having sprinted somewhere or for a fashion of time.”

But Pries said he did not know if Wilson was running from the police and also

stated the officers had not given Wilson a command to stop. Wilson cooperated

with the officers.
                                          4



       Police searched Wilson and found a small LED flashlight, a pair of orange-

handled children’s safety scissors, and a pair of mismatched gloves. 3 Wilson

later admitted to a detective that he had been standing on the street in front of

the Gutknecht residence that night and he was Lyman’s friend. He told the

detective he ran because “he was nervous when police were around.”

       The State charged Wilson and Lyman with attempted burglary in the

second degree and possession of burglary tools in a joint trial information filed on

October 31, 2013. Their cases were tried together before a jury on January 30,

2014. After the State’s case-in-chief, defense counsel moved for judgment of

acquittal on both counts. The court granted the motion on the second count,

finding no evidence had been presented that the common items possessed by

the defendants “could be considered burglary tools.”         The court denied the

motion on the attempted burglary count, and the jury returned verdicts finding

both defendants guilty of attempted burglary in the second degree.

       Wilson received an indeterminate five-year prison term for the class “D”

felony conviction. This appeal involves Wilson’s challenge to his conviction.

       II.    Standard of Review

       We review a challenge to the sufficiency of the evidence for legal error.

State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012). In deciding if the evidence

supports the guilty verdict, we view the record in the light most favorable to the

State, including all reasonable inferences that may be fairly drawn from the

evidence.    Id.   We consider all the evidence presented, not just inculpatory


3
 The record showed the temperature that night was about forty degrees and the officers
were also wearing gloves.
                                          5



evidence. State v. Keopasaeuth, 645 N.W.2d 637, 640 (Iowa 2002). We will

uphold the jury’s verdict if it is supported by substantial evidence. Id. Evidence

is considered substantial if it can convince a rational jury the defendant is guilty

beyond a reasonable doubt. Sanford, 814 N.W.2d at 615.

       III.   Substantial Evidence Analysis

       The jury convicted Wilson of aiding and abetting attempted burglary in the

second degree. Attempted burglary is defined as follows:

               Any person, having the intent to commit a felony, assault or
       theft therein, who, having no right, license, or privilege to do so,
       attempts to enter an occupied structure, the occupied structure not
       being open to the public . . . commits attempted burglary.

Iowa Code § 713.2 (2013).       A defendant commits attempted burglary in the

second degree if one or more persons are present when the defendant is

attempting to enter an occupied structure with the requisite specific intent, but the

defendant does not possess a dangerous weapon or explosive.              Iowa Code

§ 713.6(1)(b).

       In this case, the jury received the following marshalling instruction:

               1. On or about the 21st day of October, 2013, Defendant
       Joshua Timothy Wilson and Defendant Christopher Michael Lyman
       attempted to enter or break into 1316 West High Street, Davenport,
       Iowa.
               2. 1316 West High Street was an occupied structure as
       defined in Instruction 16.
               3. 1316 West High Street was not open to the public.
               4. The Defendant Joshua Timothy Wilson and Defendant
       Christopher Michael Lyman did not have permission or authority to
       enter or break into 1316 West High Street.
               5. The Defendant Joshua Timothy Wilson and Defendant
       Christopher Michael Lyman did so with the specific intent to commit
       a theft.
               6. A person was present in the occupied structure.
                                        6



       The State tried Wilson as an aider and abetter. The prosecutor told the

jury in closing argument: “Mr. Wilson is also charged under this aiding and

abetting theme.” The prosecutor emphasized Wilson acknowledged being at the

scene; was carrying gloves, a flashlight, and scissors; and ran away because he

was nervous: “If you’re just walking around with a random flashlight doing

nothing, why were you running and why are you telling police that?”

       An aider and abetter must “be associated in some way with the venture,

participates in it as something he or she wishes to bring about, and seeks to

make it succeed by his or her actions.” State v. Hustead, 538 N.W.2d 867, 870

(Iowa Ct. App. 1995).     To uphold a conviction on the theory of aiding and

abetting, the record must contain substantial evidence the accused “assented to

or lent countenance and approval to the criminal act either by active participation

or by some manner encouraging it prior to or at the time of its commission.”

State v. Tangie, 616 N.W.2d 564, 574 (Iowa 2000). The State must show Wilson

knew of the crime at the time of or before its commission. See id. Neither

knowledge of the crime nor proximity to the crime scene, standing alone, are

enough to prove aiding and abetting. Id. But the factfinder may consider the

factors of presence, companionship with the principal, and conduct before and

after the offense to infer the accomplice’s participation in the crime. Id.   And

when, as here, specific intent is an element of the crime charged, a defendant

may be guilty under a theory of aiding and abetting if he participates with either

the requisite intent, or with knowledge the principal possesses the required

intent. Id.
                                         7



       Wilson challenges the State’s proof that he and Lyman had the specific

intent to commit a theft. And even if the evidence could be considered sufficient

as to Lyman, Wilson contends the State failed to show he had the specific intent

to steal from the Gutknechts or knew of Lyman’s intent.             Wilson argues

possessing gloves on a cold October night and carrying a flashlight and

children’s scissors “did not sufficiently establish intent or knowledge of another’s

intent” to commit a theft.

       Intent can seldom be proved by direct evidence. State v. Furlong, 249

N.W. 132, 134 (Iowa 1933). Proof of intent usually arises from circumstantial

evidence and inferences reasonably drawn from the circumstances.           State v.

Olson, 373 N.W.2d 135, 136 (Iowa 1985). When police discover the accused

possesses tools, the jury may “start with the inference that the possession of the

tools had some purpose, either lawful or unlawful. Whether the purpose was a

sinister one would naturally be reflected by the circumstances surrounding such

possession.” Furlong, 294 N.W. at 134.

       In Wilson’s case, contrary to the prosecutor’s argument, we do not believe

the items he was carrying can be considered burglary tools.             In granting

judgment of acquittal on the possession-of-burglary-tools count, the district court

found as a matter of law the record did not support characterizing the flashlight,

children’s safety scissors, and mismatched gloves as burglary tools. As Wilson

argues, having gloves on a cold October night in Iowa is not unusual. Likewise,

many people carry flashlights when walking at night without a sinister purpose.
                                         8



As for the rounded-tip safety scissors, no State’s witness testified how they could

have been used as a tool in committing a burglary.

         With no reasonable inferences to be drawn from the items seized from

Wilson, all that remains of the State’s case is Wilson’s presence at the scene, his

friendship with Lyman, and his nervousness around police. Our courts have long

held a defendant’s “mere presence” at the scene of the crime is insufficient to

prove aiding and abetting. See State v. Wolf, 84 N.W. 536, 538 (Iowa 1900) (“It

has never been held, so far as we are advised, that mere presence at the scene

of crime constitutes aiding and abetting. Indeed, it is elementary that such is not

the case. Nor is it sufficient, in addition thereto, that the person present mentally

approves what is done.”); accord State v. Daves, 144 N.W.2d 879, 881 (Iowa

1966).     And on the issue of presence, Wilson only acknowledged to law

enforcement he was on the sidewalk, some twenty feet away from Gutknecht’s

house. Gutknecht recalled Lyman talking to someone out of the victim’s line of

sight, but the record does not show to whom Lyman was speaking, how close

that person was to the door, or if that person was actively participating in an

attempt to break into the house.

         Wilson’s companionship with Lyman also does not prove Wilson had the

specific intent to commit a theft or knew of Lyman’s intent. The only evidence of

the codefendants’ interaction was a single statement by the police detective that

Wilson admitted they were friends. Friendship aside, the State presented no

evidence Wilson shared a common purpose with Lyman to commit a burglary.

See Hustead, 538 N.W.2d at 870.
                                         9



       Finally, Wilson’s alleged flight from the scene is not a reliable indicator of

his guilt. See State v. Marsh, 392 N.W.2d 132, 134 n.1 (Iowa 1986) (quoting

Wong Sun v. United States, 371 U.S. 471 483 n.10 (1963) (“[W]e have

consistently doubted the probative value in criminal trials of evidence that the

accused fled the scene of an actual or supposed crime.”)). Officer Pries did not

actually see Wilson running from police but instead saw him walking toward the

investigators, albeit out of breath. From that point on, Wilson cooperated with the

investigation and explained he initially took off because he was nervous in the

presence of police. Wilson’s conduct after Gutknecht yelled at Lyman to get

away from his door was not sufficient to show Wilson had the requisite intent for

attempted burglary.    See Alberty v. United States, 162 U.S. 499, 511 (1896)

(observing citizens have all manner of reasons to prefer to avoid contact with

police).

       In this case, the State’s evidence cast suspicion on Wilson’s activities the

night of October 21, 2013, but fell short of proving he actively participated in an

attempt to break into the Gutknecht residence with the intent to commit a theft or

that Wilson lent countenance to his friend’s criminal actions.         Because the

State’s evidence was insufficient to prove Wilson aided and abetted the

commission of attempted burglary, the district court should have granted the

motion for judgment of acquittal. Accordingly, we reverse Wilson’s conviction

and remand for dismissal.

       REVERSED AND REMANDED.
