                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-1941
                              Filed March 23, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

HARLEY SHUCK,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Fayette County, Joel A. Dalrymple,

Judge.



      Harley Shuck appeals from his conviction for attempted burglary in the

second degree. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Maria Ruhtenberg,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant

Attorney General, for appellee.



      Considered by Danilson, C.J., Potterfield, J., and Goodhue, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
                                            2


GOODHUE, Senior Judge.

      Harley Shuck appeals after being convicted by jury for the offenses of

robbery in the second degree, attempted burglary in the second degree, and

possession of a controlled substance. He only challenges the sufficiency of the

evidence to support his conviction for attempted robbery. We affirm.

   I. Background Facts and Circumstances

      Shuck and his sister, Mandi, were living with their parents in Oelwein,

Iowa, as of July 21-22, 2013. Acquaintances Jeremy Conerd and Megan Owens

also resided in Oelwein. On the night of July 21, Jeremy arranged for Mandi to

provide Jeremy and Megan a ride out of town. On the completion of their trip

they returned to Oelwein, where they heard a noise in their house, and Megan

went to investigate. They discovered an intruder was still in the home, but as

Jeremy approached, he saw someone exit the back door in a dead run. Jeremy

pursued the intruder, and as he was about to tackle him, the intruder spun

around and pointed a handgun in his face. The handgun was pointed between

Jeremy’s eyes and was only about a foot away from him. There was a streetlight

at the point of confrontation, and Jeremy recognized the intruder as Shuck. The

intruder backed towards an awaiting car, tucked his gun into his waist band,

entered the car, and drove away. Jeremy recognized the car as one owned by

Shuck and Mandi’s mother. Mandi testified that Megan had entered the house

before the intruder had exited, but both Megan and Jeremy stated that neither

had entered before the intruder had left.

      After the confrontation Jeremy ran back to the house, where Mandi was

waiting in the driveway. When Jeremy entered the house, he discovered that the
                                         3


clasp used to padlock the east door of the house had been broken. He also

noted valuables gathered from different locations within the house were

deposited on the kitchen floor. Shuck had been a guest at Jeremy and Megan’s

house on several occasions and, because of telephonic communications with

Mandi, had been informed that Jeremy and Megan were going to be absent from

their home for a period of time on the night in question.

       Jeremy called the Oelwein Police Department, and they came to his

home. Jeremy and Megan advised the police what had happened and explained

that Shuck was the intruder. Immediately, the police went to Shuck’s home.

Shuck was patted down, and among other things, the police recovered a CO2

pellet gun, a flashlight, a flashlight worn on a headband, two pocket knives, two

small screwdrivers, a pair of wire cutters, and a vial of methamphetamine. Shuck

was arrested. Subsequently, a trial information was filed charging Shuck with

robbery in the first degree, burglary in the second degree, and possession of a

controlled substance.

       Shuck was tried to a jury beginning August 27, 2014.          At the trial, a

firearms instructor testified that Shuck’s pellet gun, fired at a range of ten yards,

had the capacity to penetrate human flesh up to four inches and had the capacity

to kill a human being. The jury returned verdicts of guilty to the lesser-included

offenses of robbery in the second degree, attempted burglary in the second

degree, and possession of a controlled substance.            Shuck has appealed,

contending there was insufficient evidence to establish he was guilty of

attempted burglary in the second degree.
                                           4


   II. Preservation of Error

       The State concedes that Shuck’s motion for acquittal preserved his claim

of insufficient evidence.

   III. Scope and Standard of Review

       Sufficiency-of-the-evidence issues are reviewed for errors of law. State v.

Hagedorn, 679 N.W.2d 666, 668 (Iowa 2004). If the verdict is supported by

substantial evidence, a finding of guilt will be upheld. Id. Substantial evidence is

evidence upon which a rational trier of fact could find a defendant guilty beyond a

reasonable doubt. Id. at 668-69. Evidence that detracts from the verdict as well

as supporting evidence is considered, but the evidence is reviewed in the light

most favorable to the State. Id. at 669.

   IV. Discussion

       Shuck was charged with first-degree robbery but found guilty of the lesser-

included offense of second-degree robbery. Shuck contends under the facts of

this case, the only possible missing element reducing first-degree robbery to

second-degree robbery was the jury’s failure to find he was armed with a

dangerous weapon. See Iowa Code §§ 711.2, .3 (2013). Shuck then contends it

necessarily follows the jury found the CO2 pellet was not a dangerous weapon.

       The jury also found Shuck guilty of attempted burglary in the second

degree. In order to do so, they had to have found that Shuck was armed with a

dangerous weapon or, alternatively, one or more persons were present in the

house that was burglarized. See Iowa Code § 713.6(1)(a), (b). He argues that

since the jury had already necessarily found no dangerous weapon was involved

in returning the second-degree robbery charge, as opposed to first-degree
                                         5


robbery, the jury would have had to have found one or more persons were in the

burglarized house when he was present. He then contends the evidence was

insufficient to make such a finding.

       It is not necessary to examine the sufficiency of the evidence to establish

either Jeremy or Megan was in their home when the intruder was present. The

jury’s verdict may on its face be inconsistent, but the conviction of robbery in the

second degree is a lesser-included offense of robbery in the first degree. A jury’s

finding of a lesser-included offense is considered to be the possible result of a

jury’s exercise of its power of leniency and need not be reversed even though it

is inconsistent with the jury’s verdict on other counts included within the trial

information of a multiple count indictment. Dunn v. United States, 284 U.S. 390,

393-94 (1932); see also State v. Pearson, 547 N.W.2d 236, 241 (Iowa Ct. App.

1996). A jury has the right to express leniency by convicting a defendant of a

lesser-included offense even though the facts may clearly support the greater

charge. State v. Stump, 119 N.W.2d 210, 222 (Iowa 1963).

       Shuck was tried under a multiple count trial information; therefore, the

apparent inconsistency of the verdict is not a basis for reversal. There was

adequate evidence to establish that the CO2 pellet gun was in fact a dangerous

weapon.

       AFFIRMED.
