                    IN THE COURT OF APPEALS OF IOWA

                                   No. 18-1623
                               Filed April 15, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ANTHONY FRANK ERNST,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Dubuque County, Michael J.

Shubatt, Judge.



      Anthony Ernst appeals his conviction of attempted burglary in the third

degree. REVERSED AND REMANDED.



      Martha J. Lucey, State Appellate Defender, and Bradley M. Bender,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney

General, for appellee.



      Considered by Vaitheswaran, P.J., Mullins, J., and Potterfield, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2020).
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MULLINS, Judge.

       Anthony Ernst appeals his conviction of attempted burglary in the third

degree in violation of Iowa Code section 713.6B (2017). He argues the State failed

to produce sufficient evidence to support the verdict and that it is against the weight

of the evidence. He also argues his trial counsel was ineffective in failing to object

to the admission of cell phone records.

I.     Background Facts and Proceedings

       On August 21, 2017, a break-in occurred in a garage of a home in a rural

area of Dubuque County that was owned by a probation and parole officer. The

homeowners testified the doors and windows in the garage were locked in the

morning. When a homeowner arrived around 4:30 p.m., he saw the door leading

from the garage to the yard was slightly open and appeared it had been forced

open with a pry bar.      The doorknob was still in the locked position.          Both

homeowners said weather stripping around the doorknob and bottom of the door

was damaged. Nothing was taken from the garage or appeared to be out of place.

       The home is located on a dead-end gravel lane, off another road accessed

by Highway 20. The lane is about 400 yards long with a business property at the

north end, a farm at the south end, and the subject home about half way between.

       Investigator Bill Grant of the Dubuque County Sheriff’s Department

observed the damage to the door but was unable to find any fingerprints or

footprints. The business at the end of the lane released surveillance footage to

Grant revealing only one vehicle that could not be accounted for: a 2006 to 2011

white Crown Victoria that was driven toward the home at 10:31 a.m. and away from

the home at 10:43 a.m. The car had only one occupant. A search revealed a
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white Crown Victoria was registered to Ernst, a parolee supervised by one of the

homeowners. Still photos from both surveillance and city traffic footage were

provided to the homeowner, who identified the car as Ernst’s based on specific

rust and paint-damage patterns.

       Ernst denied any involvement in the burglary. He said he visited both a

sister and his mother, who live in other rural areas of the county, the morning of

the incident and then attended an unrelated court proceeding in the afternoon. City

traffic cameras showed Ernst left the city of Dubuque at 8:55 a.m. and returned at

12:20 p.m. Ernst’s sister initially said he was not at her home on August 21 but

testified at trial he visited her that morning. Ernst’s mother testified he arrived at

her home around 11:15 a.m. and remained there until 12:00 p.m., when they both

went to Dubuque. Testimony showed Ernst and his sister discussed knowing

where the parole officer lived or at least assuming the home belonged to the parole

officer.

       Grant testified to cell phone records showing Ernst called his mother at

11:45 and 11:48 a.m., when Ernst’s mother testified he was at her home. Grant

also testified on historical cell site data, stating the towers used for the calls were

those near the location of the alleged crime, not near Ernst’s mother’s home.

       The State’s trial information charged Ernst with burglary in the third degree

with the intent to commit a theft, assault, or felony. The district court only submitted

the theft alternative to the jury. The jury convicted Ernst of attempted burglary in

the third degree, a lesser-included offense. Ernst filed a motion for new trial and

a motion in arrest of judgment; both were unsuccessful. Ernst appeals.
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II.    Standard of Review

       On the sufficiency-of-the-evidence claim, our review is for correction of

errors at law. State v. Huser, 894 N.W.2d 472, 490 (Iowa 2017) (citing State v.

Sanford, 814 N.W.2d 611, 615 (Iowa 2012)). Evidence is viewed “in the light most

favorable to the State.” Id. (quoting State v. Keopasaeuth, 645 N.W.2d 637, 640

(Iowa 2002)).

III.   Analysis

       Ernst argues insufficient evidence was presented by the State to support a

conviction of attempted burglary in the third degree. A verdict will be upheld “if

substantial record evidence supports it.” Sanford, 814 N.W.2d at 615 (quoting

State v. Nitcher, 720 N.W.2d 547, 556 (Iowa 20016)). Evidence is substantial if “it

can convince a rational jury that the defendant is guilty beyond a reasonable

doubt.” Id.

       The State bears the burden of proving every element of a charged offense.

State v. Armstrong, 787 N.W.2d 472, 475 (Iowa Ct. App. 2010). Ernst does not

challenge the jury instructions employed at trial for the charged crime. As such,

the instructions serve as the law of the case for purposes of reviewing the

sufficiency of the evidence. See State v. Banes, 910 N.W.2d 634, 639 (Iowa Ct.

App. 2018). The jury was instructed on attempted burglary as follows.

       The State must prove all of the following elements of Attempted
       Burglary:

              1. On or about the 21st day of August, 2017, the defendant
       attempted to enter a garage. . . in Cascade, Iowa.
              2. The garage was an occupied structure as defined in
       Instruction No. 18.
              3. The defendant did not have permission or authority to enter
       the garage.
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              4. The defendant did so with the specific intent to commit theft.

               If the State has proved all of these elements, the defendant is
       guilty of Attempted Burglary in the Third Degree. If the State has
       failed to prove any one of the elements, the defendant is not guilty.

Ernst argues the State failed to prove the elements of the offense of attempted

burglary. The State concedes he preserved error to challenge identity, attempted

entry, and specific intent.

       The jury heard evidence on Ernst’s car. Testimony showed that the paint

primer used on Crown Victoria vehicles between 2006 and 2011 was faulty and

those vehicles have sustained paint and rust damage. That damage is not uniform,

meaning each car has an individual, specific pattern of damage. The security-

camera footage showed that a white Crown Victoria with paint and rust damage

matching Ernst’s car was in the immediate vicinity of the home on the morning of

the break-in. The car had only one occupant, the driver. All other cars on the road

were identified as having business associated with the farm. The footage showed

the car drove toward the home on the short, dead-end road, and drove away about

thirteen minutes later. The only structures past the security cameras are the home

and a farm. There is no business or public property past the business with the

security cameras. The jury heard testimony that the side garage door on the home

was locked on the morning of the break-in and from both the homeowners and

investigating officer that it had been forced open. Thirteen minutes is sufficient

time to arrive at the home, park, force entry into a door, and retreat away from the

home, returning by the same surveillance camera.

       The State presented evidence from traffic cameras and a call log from

Ernst’s cell phone. Ernst’s mother testified he arrived at her home between 11:00
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and 11:30 a.m. and stayed until the pair left for Dubuque at noon. But phone

records show Ernst’s mother called his cell phone twice, at 11:45 and 11:48 a.m.

Testimony showed the first call was unanswered, but the second lasted for 113

seconds. Ernst’s mother provided no explanation for the phone calls and admitted

she did not think Ernst would call her if he was at her home. Ernst’s mother also

testified the pair ran errands together in Dubuque before he dropped her off to see

a grandchild. But traffic cameras in Dubuque showed Ernst was in town alone.

       The jury heard testimony regarding Ernst’s knowledge his parole officer

owned the home. Ernst’s sister testified that she and Ernst were on a website that

showed property owner information and discovered the home. She stated that she

and Ernst had a discussion in which they realized, or at least suspected, that the

home belonged to Ernst’s parole officer. Ernst’s sister was familiar with the parole

officer because her fiancé had the same parole officer. When questioned about

the break-in, Ernst’s sister told police that Ernst knew the home belonged to his

parole officer. She also told police Ernst was not with her on the morning of the

break-in, but she later testified he was with her.

       There was evidence that it was possible Ernst and the other homeowner

had encountered each other on construction sites while working for their respective

employers. From that, the State theorized Ernst may have knowledge of that

homeowner’s work schedule. In addition, the State argued that because of Ernst’s

own appointments with his parole officer, he could have believed the home would

be unoccupied during the 10:00 a.m. hour. And, in arguing against the motion for

judgment of acquittal, the prosecutor explained:
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      His intent to do something bad in that garage is something where the
      circumstantial evidence is overwhelming. . . . So a garage in an
      isolated house when he has the morning off might be a good place
      to commit a theft of someone’s garage. . . . [G]arages are places
      that burglars typically identify as somewhere to steal something
      small.

      In its ruling on Ernst’s motion for judgment of acquittal, the district court

explained:

      I think viewing the evidence in a light most favorable to the State,
      there is circumstantial evidence of entry. That would be the pry
      marks and, you know, the evidence that the State asserts places
      Defendant at the scene. The attorneys certainly can argue to the
      jury whether that evidence is reliable or not reliable.
              I’d like to hear a little bit further from [the State], because the
      bigger question in my mind is the threshold as to the specific intent
      element of the crime. And having heard the evidence, while I think
      that there’s enough evidence to go to the jury that—for them to
      determine whether or not Mr. Ernst made unauthorized entry into that
      residence, I’m still trying to sort through the evidence what would
      suggest that he did so with the specific intent to commit a theft or an
      assault . . . .

(Emphasis added.) After further arguments by counsel, the Court added:

      Having heard the arguments of counsel, I think the State’s case is
      challenged as to the specific intent element. However, I’m viewing it
      in a light most favorable to the State. And based on, you know, [the
      State’s] argument to this point, I’m willing to accept that there is at
      least a circumstantial element of a specific intent to commit a theft
      because that would be a natural reason for someone to gain entry—
      unauthorized entry into a residence or a garage. Regardless of
      whether anything was taken or not, that would be a motive to gain
      entry.
              I do not find any evidence at all in the record that would
      suggest or support an allegation that there was a specific intent to
      commit an assault toward [the parole officer]. A person can
      speculate as to that, but there’s been no evidence that I can recall,
      unless somebody can point it out to me, of any particular animus of
      the Defendant towards [the parole officer], any motive to assault [the
      parole officer] other than the fact that he was subject to [the parole
      officer’s] supervision along with 55 other people or thereabouts. I
      just don’t think there’s been any evidence of a specific intent to
      assault.
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              So I am going to grant the motion as to any instruction or
       argument that there was a specific intent to assault. But based on
       the other rulings, the circumstantial evidence of entry and the
       circumstantial evidence of a specific intent, I’ll let the parties make
       their argument to the jury. So the motion is granted on that small
       point but otherwise denied.

(Emphasis added.)

       “Mere presence at the scene of a crime is not enough to prove defendant

committed the offense.” State v. Kittelson, 164 N.W.2d 157, 162 (Iowa 1969).

Evidence, circumstantial or direct, “must generate something more than suspicion,

or speculation, or conjecture.” Id. It “must be sufficient to raise a fair inference of

guilt.” Id. “Where circumstantial evidence alone is relied upon, the circumstances

must not only be consistent with defendant’s guilt but inconsistent with any rational

hypothesis of defendant’s innocence.” Id. “There must be substantive proof of

guilt—some fact proven which tends to establish the substantive facts upon which

the state relies for conviction.” State v. Keyser, 130 N.W.2d 701, 704 (Iowa 1964).

       For the sake of this analysis, we will assume—without deciding—the

evidence was sufficient for the jury to conclude that Ernst was the person who

pried the door open. However, we share the district court’s concerns about specific

intent. It found there was not enough evidence to submit to the jury on intent to

commit an assault, but found there was enough evidence to submit to the jury on

intent to commit theft.

       This is not a case where there is direct evidence of forced entry and who

committed it, followed by circumstantial evidence pointing to an intent to commit

theft. The case starts with direct evidence Ernst was in the area, and it is a

combination of a number of circumstances that warrant a conclusion that
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circumstantial evidence supports a finding he pried the door open. The State takes

that conclusion based on circumstantial evidence, and without additional evidence

argues circumstantial evidence is sufficient to prove beyond a reasonable doubt

Ernst had the specific intent to commit theft.

       We do not agree the evidence is consistent with guilt and inconsistent with

any other rational hypothesis. See id. The State’s arguments, both in response

to the motion for judgment of acquittal and in its summation to the jury, are based

on suspicion, theory, and conjecture. The fact that people often store items in a

garage and an argument that burglars often steal from garages for financial gain,

without more, do not constitute substantive proof that Ernst is guilty beyond a

reasonable doubt of intent to commit theft. See id. Thus, after considering the

evidence in a light most favorable to the State, we part ways with the district court

on its conclusion the evidence was sufficient to show specific intent to commit theft,

and reverse and remand for judgment of acquittal.

       Given this disposition, we need not address other issues on appeal.

IV.    Conclusion

       Because the evidence is not sufficient to support the jury’s verdict, we

reverse and remand for judgment of acquittal.

       REVERSED AND REMANDED.
