                    IN THE COURT OF APPEALS OF IOWA

                                   No. 15-1949
                               Filed March 8, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

CHRISTOPHER LEE PERRY,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Linn County, Sean W. McPartland,

Judge.



      Christopher Perry appeals the judgment and sentence entered following

his convictions of first-degree arson and first-degree criminal mischief.

AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Melinda J. Nye, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Sheryl Soich, Assistant Attorney

General, for appellee.



      Considered by Potterfield, P.J., Doyle, J., and Scott, S.J.*

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

       Christopher Perry appeals the judgment and sentence entered after a jury

found him guilty of first-degree arson and first-degree criminal mischief.       He

challenges the sufficiency of the evidence to support his convictions and argues

the jury initially returned inconsistent verdicts.   Because substantial evidence

supports the verdicts and no inconsistency has been shown, we affirm.

       I. Background Facts and Proceedings.

       Perry and his girlfriend lived together in Perry’s apartment in Cedar

Rapids. When his girlfriend told him she was leaving him, Perry twice threatened

to “torch” her belongings. About five or ten minutes after he made his second

threat to set fire to her things, black smoke was seen coming out of an apartment

window. A fire, which began in the back bedroom of the apartment, eventually

engulfed the entire apartment, causing over $63,000 in damage to the building.

Neighbors pulled Perry from the burning apartment and observed him to be

intoxicated, as did emergency responders when they arrived at the scene.

       The State charged Perry with first-degree arson and first-degree criminal

mischief. At his trial, the court instructed the jury on the elements of first-degree

arson under count I, as well as its less-included offenses of second-degree

arson, third-degree arson, and reckless use of fire. The jury initially returned a

verdict finding Perry guilty of two offenses under count I: first-degree arson and

reckless use of fire. The jury also returned a verdict finding Perry guilty of first-

degree criminal mischief under count II. Concluding the jury misunderstood the

law, the court instructed the jury it “may use only one form of verdict under each

count,” and resubmitted the case. The jury then returned a verdict finding Perry
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guilty of first-degree arson under count I, in addition to its finding of guilt on count

II, the criminal-mischief charge.

       Perry moved for a new trial, arguing the jury’s initial two verdicts on count I

were inconsistent. After denying the motion, the court sentenced Perry to a

twenty-five-year term of incarceration on count I and a ten-year term of

incarceration on count II, ordering that they run concurrently, and imposed a fine

on count II, which it suspended.

       Perry appeals. He argues there is insufficient evidence to support his

convictions. He also alleges the jury’s initial verdict finding him guilty of two

charges under count I shows its verdict is legally inconsistent and, therefore, the

court erred in returning the matter to the jury for further deliberation.

       II. Sufficiency of the Evidence.

       We review claims regarding the sufficiency of the evidence to support a

conviction for correction of errors at law. See State v. Truesdell, 679 N.W.2d

611, 615 (Iowa 2004). In reviewing such claims, we view the evidence in the

light most favorable to upholding the verdict, making all inferences that may be

reasonably deduced from the evidence.            See id.    We affirm if substantial

evidence—that is, “evidence that a rational trier of fact could find the defendant

guilty beyond a reasonable doubt”—supports the defendant’s conviction. Id.

       Perry challenges the sufficiency of the evidence supporting both of his

convictions. To support a guilty verdict on the charge of first-degree arson, the

jury was instructed the State had to prove:

               1. On or about the 28th day of April, 2013, [Perry] caused a
       fire in or near property.
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             2. [Perry] intended to destroy or damage the property or
       knew the property would be destroyed or damaged.
             3. The presence of a person in the property could have been
       reasonably anticipated.

To support a guilty verdict on the charge of first-degree criminal mischief, the

State was required to prove:

              1. On or about the 28th day of April, 2013, [Perry] damaged
       or destroyed property . . . .
              2. [Perry] acted with the specific intent to damage or destroy
       the property.
              3. When [Perry] damaged or destroyed the property, he did
       not have the right to do so.

       Substantial evidence supports a finding that Perry caused a fire and that

the fire damaged or destroyed property. Perry twice stated his intention to burn

his girlfriend’s belongings. Smoke was seen coming from the apartment minutes

after Perry made the second threat to burn his girlfriend’s belongings.           An

investigation determined the fire began from an open flame. Given the short time

in which the fire began after Perry made his second threat, sufficient evidence

supports the jury’s finding that Perry intentionally started a fire in the bedroom of

his apartment.

       Perry notes he was intoxicated at the time the fire started. In order to

negate the specific-intent element of a crime, it is not enough that an offender is

intoxicated; the offender must be so intoxicated as to be unable to reason and

incapable of forming a felonious intent. See State v. Guerrero Cordero, 861

N.W.2d 253, 259 (Iowa 2015), overruled on other grounds by Alcala v. Marriott

Int’l, Inc., 861 N.W.2d 253 (Iowa 2016). The evidence does not support such a

finding here. Despite being intoxicated at the time the fire began, Perry made his

intentions clear and was able to follow through on his threat. Viewing the record
                                            5


evidence in the light most favorable to the State, there is substantial evidence by

which a reasonable fact finder could determine that Perry intentionally set the

fire.

        Finally, Perry argues the evidence is insufficient to support a finding that

he had the specific intent to damage the apartment or knowledge that the

property would be damaged,1 claiming that his statement he was going to “torch”

his girlfriend’s belongings does not equate with intent to destroy or damage the

building itself. We note that, given the nature in which fire spreads, those who

commit arson endanger more than the immediate area in which the fire is set.

See State v. Bartnick, 478 N.W.2d 878, 880 (Iowa Ct. App. 1991).

        [A]rson directed at any part of an occupied structure is deemed to
        be directed against the entire structure. This is true even if the
        portion of the building where the fire occurs is separate and distinct
        from the inhabited portion of the building. These principles reflect a
        realistic appreciation of the dangers of fire. When an arsonist sets
        a fire in one room of a structure, the danger from smoke, gases,
        and spreading flames is not confined to that room. Rather, the
        whole structure and anyone who may be present are threatened.

Id. (internal citations omitted). Based on the normally expected consequences of

his actions, the jury could infer Perry’s intent to damage the apartment or his

knowledge the apartment would be damaged. See State v. Evans, 672 N.W.2d

328, 331 (Iowa 2003).         Substantial evidence supports a finding that Perry


1
  The State asserts that Perry failed to preserve error on his claim regarding the
evidence supporting the specific-intent element because his trial counsel only argued
there lacked evidence of his specific intent with regard to the criminal-mischief charge.
Perry asks that we consider this claim under an ineffective-assistance-of-counsel rubric.
See State v. Brubaker, 805 N.W.2d 164, 174 (Iowa 2011) (holding trial counsel’s failure
to make a proper motion for judgment of acquittal at trial identifying the specific grounds
for the motion is ineffective assistance of counsel). We need only consider the merit of
the underlying sufficiency-of-the-evidence claim because it is dispositive of the
ineffective-assistance claim. See State v. Rice, 543 N.W.2d 884, 888 (Iowa 1996)
(holding counsel has no duty to make a meritless motion).
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intended to damage the apartment, or knew the apartment would be damaged, in

addition to his girlfriend’s belongings.

       III. Inconsistent Verdicts.

       After the jury initially returned verdicts of guilt of two offenses under count

I, the trial court concluded the jury was mistaken as to the law and directed it to

use only one form of verdict under each count. See Iowa R. Crim. P. 2.22(6)

(providing that “if it appears to the court that the jury was mistaken as to the law,

the court may direct the jury to reconsider it[s verdict]”). Perry argues the court

erred in resubmitting the case to the jury because its finding of guilt on the

charge of arson is legally inconsistent with its finding of guilt on the lesser-

included offense of reckless use of fire.

       If a verdict is truly inconsistent, it is invalid and must be set aside. See

State v. Halstead, 791 N.W.2d 805, 815 (Iowa 2010). “[T]he test to be applied is

whether the verdict is so logically and legally inconsistent as to be irreconcilable

within the context of the case.” State v. Fintel, 689 N.W.2d 95, 101 (Iowa 2004).

Perry claims the jury’s initial findings of guilt on the charges of first-degree arson

and reckless use of fire under count I are legally inconsistent because the intent

elements of each crime differ; arson requires specific intent while reckless use of

fire requires a finding of recklessness. Perry claims the jury’s finding he acted

with recklessness under the reckless-use-of-fire charge negates its finding of

specific intent under the arson charge.

       In rejecting Perry’s argument that the jury’s verdicts were inconsistent, the

trial court noted the crime of reckless use of fire is a lesser-included offense of

first-degree arson. See State v. Royer, 436 N.W.2d 637, 642 (Iowa 1989) (“We
                                          7


conclude that reckless use of fire meets the legal test of being a lesser-included

offense of arson in the first degree.”). Therefore, in order to commit first-degree

arson, Perry had to also commit all elements of reckless use of fire. See State v.

Miller, 841 N.W.2d 583, 587-88 (Iowa 2014) (“The test we have settled on to

determine whether a crime is a lesser included offense of a greater crime

generally inquires ‘whether the greater offense cannot be committed without also

committing all elements of the lesser offense.’” (citation omitted)). Because

“[r]ecklessness, although a lesser degree, is an included part of the element of

intent found in arson,” Royer, 436 N.W.2d at 641-42, the jury’s initial verdicts

under count I were not inconsistent. Rather, we agree with the trial court that in

returning two verdicts under count I, the jury was mistaken as to the law,

specifically with regard to the instruction requiring that it only return a single form

of verdict as to each count. Accordingly, the trial court took proper action in

directing the jury to reconsider its verdict under rule 2.22(6).

       AFFIRMED.
