                    IN THE COURT OF APPEALS OF IOWA

                                   No. 13-0923
                               Filed May 29, 2014

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

STEVEN PAUL SEELYE JR.,
     Defendant-Appellant.
________________________________________________________________

       Appeal from the Iowa District Court for Marshall County, Dale E. Ruigh

(bench trial) and James A. McGlynn (sentencing), Judges.



       Steven Paul Seelye Jr., appeals from his convictions and sentences for

burglary in the second degree and theft in the fifth degree. AFFIRMED IN PART,

REVERSED IN PART, AND REMANDED.



       Mark C. Smith, State Appellate Defender, and Theresa R. Wilson,

Assistant Appellate Defender, for appellant.

       Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney

General, Jennifer Miller, County Attorney, and Paul Crawford, Assistant County

Attorney, for appellee.



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



MCDONALD, J.

       Following a bench trial, Steven Paul Seelye Jr., was convicted of burglary

in the second degree, in violation of Iowa Code sections 713.1 and 713.5 (2011),

and theft in the fifth degree, in violation of sections 714.1(1) and 714.2(5). The

district court sentenced Seelye as a habitual offender, pursuant to section 902.8,

to a term of incarceration not to exceed fifteen years on the burglary conviction

and thirty days in jail for the theft conviction, said sentences to run concurrently.

The court also imposed but suspended a $1000 fine and surcharge for the

burglary conviction. Seelye appeals his convictions and sentences.

                                         I.

       The State charged Seelye with burglary in the second degree and theft in

the second degree. Seelye waived his right to jury trial and stipulated to being a

habitual offender. Prior to trial, the State sought to admit the deposition of victim

Terry Dunham in lieu of his in-court testimony, arguing that Terry was unavailable

to testify in person due to a medical condition. The district court received the

deposition testimony over the defendant’s objection.

       Terry and Linda Dunham live in a single-family home in Marshalltown.

Attached to the home is an enclosed porch. The porch can be entered from the

outside through a set of double doors. The home can be entered from the porch

through a door leading into the kitchen. The Dunhams are antique collectors.

They store some of their antiques in cupboards and shelves located in the

enclosed porch.
                                        3



      The Dunhams and Seelye share an interest in antiques and have known

each other for many years. Seelye was a regular visitor to the Dunham’s home.

In the early afternoon of May 28, 2012, Linda was watching television alone in

the living room of her home. She saw Seelye pull up to the Dunham’s residence

and park his truck in the driveway. He exited the truck, entered the porch, and

knocked at the kitchen door. Linda ignored the knocking and continued watching

television. Three or four minutes later, after not hearing or seeing Seelye leave,

Linda looked out the window of the kitchen door into the enclosed porch. She

saw Seelye take an antique carpet ball out of a cupboard. When Seelye turned,

Linda noticed he also had one of the Dunhams’ antique rolling pins tucked under

his arm. Seelye left the porch, walked to his truck, opened the door, and started

entering the vehicle. Linda ran outside and yelled, “put the stuff back.” Seelye

then walked back towards Linda. Seelye offered no explanation for his conduct.

Linda took the items from him and went back inside. At that time, she noticed

other items missing from the porch. Linda phoned Terry, who told her to call law

enforcement. She did. Seelye was later arrested and charged.

                                        II.

      Seelye challenges the sufficiency of the evidence supporting his burglary

and theft convictions. The challenge is properly before the court. See State v.

Abbas, 561 N.W.2d 72, 74 (Iowa 1997) (“We similarly hold that when a criminal

case is tried to the court, a defendant may challenge the sufficiency of the

evidence on appeal irrespective of whether a motion for judgment of acquittal

was previously made.”).    “Sufficiency of evidence claims are reviewed for a
                                         4



correction of errors at law.” State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012).

Where the proceeding was tried to the court, the district court’s finding of guilt is

binding on us unless we conclude there was not substantial evidence in the

record to support such a finding. See State v. Taft, 506 N.W.2d 757, 762 (Iowa

1993). “In determining whether there was substantial evidence, we review the

record in the light most favorable to the State.” Id. “Substantial evidence means

such evidence as could convince a rational trier of fact that the defendant is guilty

beyond a reasonable doubt.” Id.

                                         A.

       We first address the burglary conviction. In its findings of fact, conclusions

of law, and verdicts, the district court concluded the State was required to prove

the following elements beyond a reasonable doubt:

       1. On or about May 28, 2012, Mr. Seelye broke or entered the
       enclosed porch [of the Dunhams].
       2. The porch on the residence was an “occupied structure.”
       3. The structure was not open to the public at the time in question.
       4. Mr. Seelye had no right, license, or privilege to break or enter
       the porch at the time in question.
       5. At the time he broke or entered the porch, he had the specific
       intent to commit a theft from the premises.
       6. One or more persons were present in the residence during the
       commission of the burglary.

The district court found that elements 1, 2, 3, and 6 were clearly established

beyond a reasonable doubt. Regarding elements 4 and 5, the district court ruled

as follows:

       Mr. Seelye did not have the “right, license, or privilege” to enter the
       porch on the Dunham residence on May 28, 2012. Even if he then
       had a general license or privilege to enter the porch for the innocent
       purpose of visiting the Dunhams, Mr. Seelye had no license or
       privilege to enter for the purpose of stealing things from the
                                        5



       Dunhams. The totality of the evidence also shows that, when he
       entered the porch, Mr. Seelye had the specific intent to commit a
       theft from the premises. The facts that the garage was visibly
       empty and that Mr. Seelye took the items from a cupboard on the
       porch as soon as no one answered his knock on the kitchen door
       circumstantially show the required specific intent.

       Seelye contends there is insufficient evidence the porch was not open to

the public. We agree. While the prosecutor argued the porch was not open to

the public and while the district court found the porch was not open to the public,

the testimony, even when viewed in the light most favorable to the State, is to the

contrary. Linda testified:

              Q: Was your home that day open to the public? That is,
       could anybody just walk in? A: They could the porch.

The State made no attempt to have Linda clarify or otherwise limit her testimony,

and Seelye’s attorney did not ask any questions regarding the issue on cross-

examination. It is thus uncontroverted that the porch of the Dunham home was

“open to the public.” Presumably, this would include Seelye.

       Even assuming, however, the porch was not open to the public, Seelye

contends he specifically had a right, license, or privilege to enter the porch. The

State argues that Seelye’s right, license, and privilege was limited to those times

when the Dunhams were home. According to the State, on the date at issue,

Seelye should have known the Dunhams were not home because the garage

was empty. Therefore, the State argues, Seelye should have known he did not

have permission to enter the porch. It is an interesting argument given that Linda

was, in fact, home. Setting aside that fact, the purported limitation on Seelye’s
                                         6



right, license, or privilege to enter the porch is not supported by the record. Linda

testified as follows:

               Q. It was not uncommon for Steve Seelye to open [the
       enclosed porch] door, walk in, and knock on the interior door
       [leading to the kitchen]? A. Yes.
               Q. So for him to come into your porch and knock on your
       interior kitchen door . . . was fairly common? A. Yeah. Yes.
               ....
               Q. Had you told him prior to May 28, 2012, to not come on
       your property? A. No.
               Q. Had you ever told him prior to May 28 he did not have
       permission to enter upon your porch like he had many times
       before? A. No. He always came in and sat down and visited
       where we usually were.
               ....
               Q. And again, he didn’t need to knock; he could just come in
       [to the enclosed porch] as he pleased? A. Yeah.
               Q. He had permission to do that always? A. Yeah. I mean,
       there was no reason for him not to.

The purported limitation on the right to enter the porch on only those occasions

the Dunhams were home was simply an argument made by the prosecutor

during closing argument.      The only evidence—not argument—regarding the

issue is Linda’s testimony, and she agreed Seelye “had permission . . . always”

to enter the porch.

       The State also argues, and the district court found, that even if the public,

including Seelye, had a general right to enter the porch, there is no right, license,

or privilege to enter the porch for the purpose of committing a theft. The State’s

argument is unavailing. “Iowa’s burglary statute has two essential elements: (1)

the defendant’s unlawful presence in or breaking of an occupied structure; and

(2) the defendant's intent to commit a felony, assault, or theft in the structure.”

State v. Walker, 600 N.W.2d 606, 608 (Iowa 1999). The State’s argument, and
                                         7



the district court’s conclusion, renders the first element a superfluous tautology.

We avoid interpreting statutes to render any provision of a statute without

meaning. See State v. Nicoletto, No. 12-1862, 2014 WL 1400077, at *5 (Iowa

Apr. 11, 2014) (“Moreover, we interpret statutes in a manner to avoid absurd

results and to avoid rendering any part of an enactment superfluous.”). The

argument also proves too much because it transforms every felony, assault, or

theft occurring inside an occupied structure into a burglary:

       We do not agree that permission to be present is automatically
       revoked once the defendant commences his criminal conduct. The
       mere commission of a crime in an occupied structure does not
       automatically constitute a burglary, nor does the defendant’s
       criminal intent substitute for proof that consent to remain has been
       revoked . . . . If the mere commission of a crime or the formation of
       a criminal intent could be used to support an inference that the
       defendant’s right to be in the premises has been revoked, every
       offense committed in an occupied structure would be transformed
       into a burglary.

Walker, 600 N.W.2d at 609-10 (emphasis added).

       The district court erred in concluding the defendant’s intent to commit a

theft inside the porch is, standing alone, sufficient evidence that the defendant

possessed no right, license, or privilege to be in the porch. The lawfulness of the

entry and the intent of the defendant are separate inquiries. The first relates to

and requires evidence regarding the defendant’s legal right to enter or remain in

the occupied structure. The second relates to and requires evidence regarding

the defendant’s intended criminal conduct.       The distinction between the two

elements and the proof required for each has long been recognized in our case

law:
                                        8



      There is no breaking in entering a building or room, and therefore
      no burglary, if the person entering has a right so to do, although he
      may intend to commit, and may actually commit, a felony, and
      although he may enter in such a way that there would be a
      breaking if he had no right to enter . . . .

State v. Peck, 539 N.W.2d 170, 173 (Iowa 1995) (emphasis added) (citation

omitted); State v. King, 344 N.W.2d 562, 563 (Iowa Ct. App. 1983) (finding the

State did not prove entry without consent because the defendant had “implied

consent to enter” and victims never effectively revoked consent). The distinction

is also recognized by leading secondary authority:

      Entering a place where one has a right to be, although with intent to
      commit a crime, is not burglary, but one having a general right to be
      in a building may be guilty of burglary where he or she enters at a
      time or place beyond his or her authority, or remains at a time or
      place beyond his or her authority.

12A C.J.S. Burglary § 25 (2004).

      The necessity of evidence establishing both wrongful presence and

criminal intent is also recognized in persuasive authority. We find the following

analysis persuasive:

      The People reason that a privilege to remain is necessarily
      conditioned on lawful purpose and behavior, because nobody
      consents to criminal acts on his or her premises. Thus, once a
      person with license engages in criminal behavior, consent and
      hence license is revoked, and the person who entered lawfully
      thereafter remains unlawfully.       This reasoning impermissibly
      broadens the scope of liability for burglary, making a burglar of
      anyone who commits a crime on someone else's premises. It
      erroneously merges two separate and independent elements that
      must coexist to establish burglary: First, the trespassory element of
      entry or remaining without license or privilege; Second, intent to
      commit a crime. An intrusion without license or privilege (unlawful
      entry) is the distinguishing element, the essence of burglary. It
      must be established separately and distinctly from the intention to
      commit a crime. The mere fact that a crime was committed or was
                                          9



       intended is an insufficient basis for finding that the entry or
       remaining was without privilege or authority.

People v. Hutchinson, 477 N.Y.S.2d 965, 967 (N.Y. Sup. Ct. 1984) aff’d, 503

N.Y.S.2d 702 (N.Y. App. Div. 1986) (mem.). Other authorities reach the same

conclusion.     See State v. Allen, 110 P.3d 849, 855 (Wash. Ct. App. 2005)

(“Essentially, the deputy prosecutor urged the jury to convict Allen of burglary if it

found that he had entered each building with the intent to steal. This argument is

inconsistent with long-standing Washington law.          A lawful entry, even one

accompanied by nefarious intent, is not by itself a burglary. Unlawful presence

and criminal intent must coincide for a burglary to occur.”); Davis v. State, 737

So. 2d 480, 484 (Ala. 1999) (“We reiterate that the evidence of a commission of a

crime, standing alone, is inadequate to support the finding of an unlawful

remaining . . . .”).

       The State failed to prove beyond a reasonable doubt that the Dunhams’

porch was not open to the public. The State also failed to prove Seelye had no

right, license, or privilege to enter the porch. The State further failed to prove

that Seelye remained in the porch after his right, license, or privilege expired.

Accordingly, the State has failed to prove an essential element of the burglary

conviction, and the judgment of the district court must be reversed.

                                         B.

       Seelye also challenges the sufficiency of the evidence supporting his

conviction for theft. To prove theft, the State was required to establish Seelye

took possession or control of the property of another with the intent to

permanently deprive the owner thereof. See Iowa Code § 714.1(1); State v.
                                            10



Schminkey, 597 N.W.2d 785, 789 (Iowa 1999). Seelye was charged with theft in

the second degree, which required the State to prove the property was in excess

of $1000 but not more than $10,000. See Iowa Code § 714.2(2). The district

court found Seelye guilty of the lesser-included offense of theft in the fifth degree.

Theft in the fifth degree requires the property not exceed $200 in value but does

not require proof of a minimum value. See Iowa Code § 714.2(5).

       “Because proof that the defendant acted with the specific purpose of

depriving the owner of his property requires a determination of what the

defendant was thinking when an act was done, it is seldom capable of being

established with direct evidence.” Schminkey, 597 N.W.2d at 789. “Therefore,

the facts and circumstances surrounding the act, as well as any reasonable

inferences to be drawn from those facts and circumstances, may be relied upon

to ascertain the defendant’s intent.” Id.

       Seelye did not have permission to take antiques from the Dunham

residence. Linda watched Seelye remove two items from the enclosed porch.

Seelye transported the items from the porch to his truck. These are not the types

of items that one might take for temporary use like, for example, a motor vehicle.

Linda watched Seelye start to enter the truck and prepare to leave from which it

can be reasonably inferred that Seelye intended to depart the residence with the

items. When Linda demanded that Seelye put the items back, he approached

her. Linda took the items from Seelye’s hands. Seelye offered no explanation

for his conduct to Linda upon being confronted by her. The minimum value of the

items Seelye took is immaterial to the conviction. Viewing the evidence in the
                                        11



light most favorable to the State, there was sufficient evidence that Seelye took

the antiques with the intent to permanently deprive the Dunhams of them.



                                        III.

      Seelye raises several other challenges to his convictions and sentences.

                                        A.

      Seelye contends the district court erred in admitting into evidence Terry

Dunham’s deposition transcript. The deposition was inadmissible hearsay, he

argues. Admission of the same, he further argues, violated his constitutional

right to confront and cross-examine the witness. “[W]e review the admission of

hearsay for errors at law, while Confrontation Clause issues are reviewed de

novo.” State v. Brown, 656 N.W.2d 355, 361 (Iowa 2003). “[B]oth the hearsay

rule and the Confrontation Clause operate to prevent the wrongful admission of

testimony to the prejudice of a defendant.” Id. “Neither rule requires the reversal

of a judgment if the defendant suffered no prejudice or harm from the admission

of inadmissible testimony.” Id. The Brown court set forth criteria to determine

prejudice and harm:

      There are two distinct tests to apply to determine whether the
      admission of inadmissible testimony is non-prejudicial or harmless
      under the two rules. In the hearsay context, where substantially the
      same evidence is in the record, erroneously admitted evidence will
      not be considered prejudicial. For Confrontation Clause purposes,
      the State must establish that the error was harmless beyond a
      reasonable doubt.        In making the Confrontation Clause
      assessment, a court must look at: [T]he importance of the witness’
      testimony in the prosecution’s case, whether the testimony was
      cumulative, the presence or absence of evidence corroborating or
      contradicting the testimony of the witness on material points, the
                                        12



       extent of cross-examination otherwise permitted, and, of course,
       the overall strength of the prosecution’s case.

Id. at 361-62 (citations and quotation marks omitted) (alteration in original).

Where we conclude the testimony was harmless beyond a reasonable doubt, we

need not address the issue of whether the witness was unavailable within the

meaning of Rule of Evidence 5.804(b)(1).

       We conclude the admission of the deposition testimony was harmless

beyond a reasonable doubt. First, Seelye’s burglary conviction is not supported

by sufficient evidence and must be reversed.        Thus, the relevant inquiry is

whether the testimony was harmless beyond a reasonable doubt with respect to

the theft conviction.     Terry’s deposition testimony provided background

information regarding the Dunhams’ relationship with Seelye.        Because Terry

was not at the house when Seelye removed the items, Terry was unable to

provide any information based on personal knowledge regarding Seelye’s

conduct that day. Terry also testified briefly on the value of the items removed

from the enclosed porch. Linda testified to the same.

       Not only was Terry’s testimony concerning the theft “substantially the

same evidence” as what Linda provided in the record, but Terry’s testimony was

not relied upon by the court, and in fact, was found to be unpersuasive. The

court rejected Terry’s valuation of the missing items, finding Seelye guilty only of

the lesser-included offense that does not require proof of value.        Under the

factors reiterated in Brown, it is clear the State proved any error in having Terry

not testify at trial was harmless beyond a reasonable doubt.          See State v.

Weaver, 608 N.W.2d 797, 805-06 (Iowa 2000) (finding allegedly inadmissible
                                         13



hearsay testimony harmless because “it is clear from the court’s findings in this

jury-waived trial that it did not rely on this evidence”); State v. Farnum, 397

N.W.2d 744, 746 (Iowa 1986) (“[T]here is less need for strict application of

evidence rules in a bench trial.”).

                                         B.

       Seelye contends imposition and suspension of the $1000 fine for the

burglary conviction was illegal.      The State concedes this point.       An illegal

sentence is one not authorized by statute. See Tindell v. State, 629 N.W.2d 357,

359 (Iowa 2011); see also Iowa R. Crim. P. 2.24(5)(a) (“The court may correct an

illegal sentence at any time.”). We agree that imposition and suspension of the

fine was impermissible where the defendant was sentenced as a habitual

offender and no statutory authority apart from the general sentencing provisions

provided for a fine. See Iowa Code § 902.8; State v. Halterman, 630 N.W.2d

611, 613-14 (Iowa Ct. App. 2001). Because we conclude the burglary conviction

is not supported by sufficient evidence and reverse the conviction, the argument

regarding the sentence is now moot.

                                         C.

       Seelye also contends his convictions and sentences are illegal because

the district court did not pronounce the verdict in open court. First, the issue is

now moot with respect to Seelye’s burglary conviction. Second, the defendant

failed to preserve error on the issue. Third, at trial, Seelye explicitly consented to

the court returning its verdict in writing and then reading the verdicts at the time

of sentencing. He thus waived the right. Fourth, the district court did read the
                                          14



verdict at sentencing. As such, Seelye suffered no prejudice and is not entitled

to relief. See State v. Jones, 817 N.W.2d 11, 21 (Iowa 2012) (“We also agree

with the state court decisions holding the defendant is not entitled to further relief

if the court later reads the verdict at sentencing.”).

                                          IV.

       We affirm Seelye’s conviction and sentence for theft in the fifth degree.

We reverse the judgment of the district court with respect to Seelye’s conviction

for burglary in the second degree and remand this matter for entry of judgment of

acquittal.

       AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
