                    IN THE COURT OF APPEALS OF IOWA

                                  No. 13-0618
                             Filed August 27, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DAVID HOWARD ROONEY,
     Defendant-Appellant.
________________________________________________________________

       Appeal from the Iowa District Court for Pottawattamie County, Richard H.

Davidson, Judge.



       Defendant appeals his conviction for burglary in the third-degree.

AFFIRMED.



       Mark C. Smith, State Appellate Defender, and Vidhya Reddy, Assistant

Appellate Defender, for appellant.

       Thomas J. Miller, Attorney General, Tyler Buller, Assistant Attorney

General, Matthew Wilber, County Attorney, and Tom Nelson, Assistant County

Attorney, for appellee.



       Considered by Vogel, P.J., and Tabor and McDonald, JJ.
                                          2


VOGEL, P.J.

      David Rooney appeals his conviction for burglary in the third degree. He

claims there was insufficient evidence supporting the jury’s conclusion he

“entered” an “occupied structure” as defined in the Iowa Code, and that the

district court erred in submitting the “overnight accommodation” and “storage or

safekeeping anything of value” alternatives defining an occupied structure to the

jury. He further claims the court erred in overruling his motion for mistrial based

on alleged prosecutorial misconduct during closing argument. We conclude the

house in this case, although abandoned, satisfies the definition of “occupied

structure,” and therefore sufficient evidence supported Rooney’s burglary

conviction. Additionally, no comments made by the prosecutor during closing

arguments rose to the level of misconduct such that Rooney was denied a fair

trial, and therefore the district court properly overruled Rooney’s motion for

mistrial. Consequently, we affirm.

I. Factual and Procedural Background

      On November 4, 2012, Council Bluffs Fire Department responded to a fire

at a dilapidated city-owned house. The fire department investigator found signs

of forcible entry. He also found indicia that copper wiring and a cast-iron radiator

had been removed from the house. Witnesses reported seeing two men loading

a radiator or heat register from the house onto a jimmy-rigged flatbed pickup

truck a few hours before the fire started. Law enforcement later discovered the

reported vehicle. Two men were with the vehicle, one of which was Rooney.

Although Rooney denied any involvement with the fire, he admitted to “being at

the property that day scrapping metal.”
                                         3


        The house in question had not been lived in since 2002, and since 2007

the house had been owned by the City of Council Bluffs (City). The house was

built about 1890, and was thought to be the oldest residence in Council Bluffs.

The goal was to preserve its historic value; however, all efforts to secure a

developer to restore the house had failed. On the date of the fire, the house did

not have any power or electricity, insulation was down, walls and wires were

exposed, the drywall was punctured, and the pipes were disconnected. The

investigator for the fire department described the house as being in disrepair,

vacant, and completely boarded up, while a neighbor described the house as

“just an old, abandoned, nobody-lives-there house, falling apart, boarded up.”

While the house was unoccupied, evidence in the record showed transient

people occasionally spent the night there.

        On December 12, 2012, Rooney was charged with burglary in the third

degree, in violation of Iowa Code sections 713.1 and 713.6A(1) (2011).

Following a jury trial, he was convicted on February 20, 2013, and sentenced to a

term of incarceration not to exceed five years. Rooney appeals.

II. “Entering” an “Occupied Structure”

        Rooney first claims insufficient evidence supported the jury’s verdict he

“entered” an “occupied structure” as contemplated in Iowa Code section 713.1,

because, he asserts, an abandoned house does not meet the definition of an

occupied structure under section 702.12.

        A. Standard of Review

        “Sufficiency of evidence claims are reviewed for a correction of errors at

law.”   State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012).          “In reviewing
                                         4


challenges to the sufficiency of evidence supporting a guilty verdict, courts

consider all of the record evidence viewed ‘in the light most favorable to the

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

evidence.’” Id. (citation omitted). We will uphold a verdict if it is supported by

substantial evidence. Id. “Evidence is considered substantial if, when viewed in

the light most favorable to the State, it can convince a rational jury that the

defendant is guilty beyond a reasonable doubt.” Id.

       B. Definition of “Occupied Structure”

      Iowa has historically followed the common law approach to defining

burglary. See id. At common law, only a “dwelling house” could be the subject

of the offense of burglary. See State v. Pace, 602 N.W.2d 764, 769 (Iowa 1999).

The General Assembly expanded the scope of the burglary statute in 1978

beyond “dwelling houses” to “occupied structures.” Id. The Iowa Code now

defines burglary 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, enters an
      occupied structure, such occupied structure not being open to the
      public, or who remains therein after it is closed to the public or after
      the person’s right, license or privilege to be there has expired, or
      any person having such intent who breaks an occupied structure,
      commits burglary.

Iowa Code § 713.1. Iowa Code section 702.12 defines an “occupied structure” in

the following manner:

      [A]ny building, structure, appurtenances to buildings and structures,
      land, water or air vehicle, or similar place adapted for overnight
      accommodation of persons, or occupied by persons for the purpose
      of carrying on business or other activity therein, or for the storage
      or safekeeping of anything of value. Such a structure is an
      “occupied structure” whether or not a person is actually present.
                                         5


(Emphasis added.)

       The statute is written in the disjunctive, such that proof is required on only

one of the three alternatives. See Powers v. McCullough, 140 N.W.2d 378, 385

(Iowa 1966) (“With few exceptions the doctrine is well settled that when two or

more acts are enumerated in a statute disjunctively, and are not repugnant to

each other, they may be alleged conjunctively in an indictment or information

without duplicity.”). At issue here is the jury instruction defining a structure as

“occupied” if it is either “adapted for overnight accommodations” or for the

“storage and safekeeping of anything of value.”

       C. Adapted for Overnight Accommodations

       The record supports this house as meeting the definition of “occupied

structure” under the “adapted for overnight accommodations.” It is undisputed

that the house in question is a structure that was built for overnight

accommodations. Therefore, because the statute is written in the disjunctive, the

house satisfies the definition of occupied structure under this alternative. See

Iowa Code § 702.12 (“An ‘occupied structure’ is any building, structure,

appurtenances to buildings and structures, land, water or air vehicle or similar

place adapted for overnight accommodation of persons”); see also State v.

Sinclair, 622 N.W.2d 772, 780 (Iowa Ct. App. 2000) (holding sufficient evidence

supported the defendant’s burglary conviction where he entered the home of his

ex-wife and proceeded to commit several felonies).1


1
 The two-prong test of whether a building is an occupied structure found in Pace, 602
N.W.2d at 769, is utilized when the structure is not clearly “adapted for overnight
accommodations of persons. See id. (analyzing a porch, stoop, and driveway under the
test, and noting that these were appurtenances to the house). See also Sanford, 814
                                          6


       Regardless of its poor condition, one of a house’s primary purposes—

abandoned or otherwise—is accommodating people to stay overnight.2 As the

evidence in this case demonstrated, people did occupy the house on an

overnight basis, albeit they were transients who, regardless of the houses

dilapidated condition, sought shelter. Aware of this use, the City had contacted

personnel with an emergency homeless shelter to help board up the site. One

neighbor testified that although the house was boarded up, it had been broken

into on many occasions. Boards would be down and doors open on a fairly

routine basis. The neighbor further stated that in the months before the eventual

demolition of this house, her husband “had ran a few people out of there he seen

going in there” and had called the police.

       This testimony aligns with the fact that abandoned houses are notorious

for being “occupied” by trespassers, sometimes in the context of the perfect

shelter to harbor illegal activity. See In re A.K., 825 N.W.2d 46, 53 (Iowa 2013)

(finding juvenile did not commit an assault against victim who followed juvenile to

an abandoned house); State v. Cline, 717 N.W.2d 277, 279 (Iowa 2000) (noting

ongoing drug activity and methamphetamine lab at fire-damaged, uninhabitable

house); State v. Hustead, 538 N.W.2d 867, 869 (Iowa App. 1995) (describing

burglary suspects’ use of an abandoned farm house to harbor stolen property).

The conclusion that an abandoned, seemingly uninhabitable house would fit into

N.W.2d at 615 (applying the test to determine whether a vehicle was an occupied
structure). Because a house is the quintessential occupied structure, the two-pronged
test set forth in Pace does not apply.
2
  We acknowledge the prosecutor, in his closing argument, seemed to concede that the
house was no longer adapted for overnight accommodations because it was a “bad
house.” However, that comment was not evidence, and we agree with the district court’s
determination the State’s case created a jury question as to whether the house was
adapted for overnight accommodations.
                                           7


the broad scope of an “occupied structure” squares with the traditional purpose of

our burglary laws, which are “designed primarily to protect against the creation of

a situation dangerous to personal safety caused by unauthorized entry.”

Sanford, 814 N.W.2d at 618 (citation omitted). It is also consistent “with the

fundamental common law concept of burglary as an offense against security of

occupancy,” given that “[t]he laws are primarily designed . . . not to deter the

trespass and the intended crime, which are prohibited by other laws, so much as

to forestall the germination of a situation dangerous to personal safety.” Pace,

602 N.W.2d at 768, 771. Consequently, this record supports that an abandoned

house, even if it is condemned, can and did harbor persons, such that it satisfies

the definition of an occupied structure for the purpose of our burglary statute.3

       D. Adapted for Storage or Safekeeping Items of Value

       The evidence presented also showed the house satisfied the definition of

“adapted for storage or safekeeping items of value” alternative to “occupied

structure.” At trial, the jury heard testimony regarding certain historical features

of the property. Tina Hochwender, Community Project Coordinator for the City of

Council Bluffs and the individual overseeing the house, testified that the house

contained special historic features, including the carpentry and the fireplace

mantel. When asked why the City took steps to secure the property by boarding

it up, she testified: “Because there were items in the property that were historical

and were trying to be maintained and kept, because we could receive additional


3
  We note the legislature has defined an “occupied structure” under section 702.12
broader than a “dwelling” under section 702.10, which is defined as a structure “adapted
for overnight accommodation of persons, and actually in use by some person or persons
as permanent or temporary sleeping quarters, whether such person is present or not.”
                                             8


financial assistance if there’s historical significance to this site.” This testimony

shows the interior features of the house had historical significance and intrinsic

value. It also had extrinsic value due to the City’s ability to receive more financial

assistance by maintaining those features. Hochwender testified that on many

occasions the City was notified that boards had been removed, “[a]nd so we

assumed someone probably broke in so we would call people and have them

secure the site.” The reason for buying and attempting to protect the house from

intruders was to store and keep safe those historic interior features. Even after

the November 4 fire, while the house was slated for demolition, Hochwender

testified: “People still wanted stuff out of there, so it still had value.”

       Furthermore, Iowa case law broadly interprets the language of section

702.12. See State v. Hill, 449 N.W.2d 626, 628 (Iowa 1989) (“By virtue of the

fact that some of the business activities of the automobile parts store were

carried on within the fenced enclosure, and the fact that the store used the

enclosure to store used parts of some value, we find that the enclosure was an

‘occupied structure.’”); State v. Williams, 409 N.W.2d 187, 188–89 (Iowa 1987)

(holding entry into a camper shell mounted on the bed of a pickup truck to

remove tires stored in shell constituted burglary); State v. Sylvester, 331 N.W.2d

130, 132 (Iowa 1983) (holding that “storage or safekeeping of anything of value”

includes “those portions of enclosed delivery trucks containing products to be

carried and delivered.       An enclosed delivery truck does not only transport

products; it holds them in safekeeping until they are removed in their turn for

delivery.”). Additionally, this record revealed that Rooney admitted to being at

the property on November 4, “scrapping metal,” after which copper wiring and a
                                        9


cast-iron radiator were missing from the house. Given our case law and the

testimony offered, sufficient evidence supported the conclusion the house was

used for the storage or safekeeping items of value.

      E. “Entering” the House

      The record also conclusively demonstrated Rooney “entered” the house.

Two unrelated witnesses reported seeing two individuals loading a radiator into a

pickup truck. The investigator for the fire department noticed one of the radiators

from the house was missing. When the pickup truck was eventually discovered

and Rooney was interviewed, Rooney admitted to being at the house “scrapping

metal.” Therefore, considering “all of the record evidence viewed in the light

most favorable to the State, including all reasonable inferences that may be fairly

drawn from the evidence,” Sanford, 814 N.W.2d at 615, a rational jury could

conclude Rooney “entered” the house. Therefore, sufficient evidence supported

the jury’s verdict that Rooney entered an occupied structure.

III. Jury Instructions

      Rooney further contends the district court erred in overruling his objection

and submitting to the jury the “adapted for overnight accommodation” and

“storage or safekeeping of anything of value” alternatives for the definition of

“occupied structure.” Challenges to jury instructions are reviewed for correction

of errors at law. State v. Anderson, 636 N.W.2d 26, 30 (Iowa 2011). “Our review

is to determine whether the challenged instruction accurately states the law and

is supported by substantial evidence.” State v. Hanes, 790 N.W.2d 546, 548

(Iowa 2010).
                                        10


       As noted above, sufficient evidence supported both the “adapted for

overnight accommodations” and “storage or safekeeping anything of value”

alternatives.   Consequently, the district court properly overruled Rooney’s

objection.

IV. Prosecutorial Misconduct

       Finally, Rooney contends the district court erred in overruling his motion

for mistrial based on alleged prosecutorial misconduct during closing argument.

Rooney takes issue with the following statement:

               You saw what the house was like, and people just—they’re,
       like, who cares. “Let's go into this house. We don’t need
       permission. Let’s just go take it.” Okay. So that’s what happened
       in this particular case except that people do care. They did not
       have permission. And when he entered with the specific intent to
       commit a theft and later was discovered and confessed to it, people
       do care. And that’s why we’re here. Okay.
               ....
               With regard to whether or not this case is that big of a deal,
       okay, ladies and gentlemen, what’s really going on here? Things
       taken from a vacant house. Who cares? I want to give you a
       reason to care. Tina Hochwender cared. She was on that stand
       when she was questioned with regard to this was a vacant old
       house, was basically a line of questioning. She didn’t appreciate it.
       She cared about that house. She wanted to see something done
       with it. She cared that it was broken into. She reported it. She got
       calls right up to a couple weeks until it was demolished about trying
       to do something with this house. Okay. So who cares? Tina
       Hochwender cares about what happens in this case and what the
       verdict is and what people were doing in this house. So I want to
       give you a reason to care. With her, and also, ladies and
       gentlemen, the insinuation that a vacant house cannot be
       burglarized should offend you. Just because this was a vacant old
       house doesn’t mean people should be able to enter without
       authority or permission and take what they wanted. Okay. Vacant
       houses, people care about vacant houses. People cared about this
       vacant house. So to say that metal has no value or try to get off on
       some type of technicality like that, ladies and gentlemen, that
       should offend you.
               Burglary, occupied structure, things were deemed an
       occupied structure such as garages, occupied structure such as
                                         11


       storage units, things like that.    They are deemed occupied
       structures. Vacant houses are deemed occupied structures for a
       reason. That’s so when somebody is alleged to commit a crime,
       we have jury instructions to give you and a way in order for the
       elements to be neat in order to prove somebody guilty. So that
       house was an occupied structure just because it was a vacant
       house. Don’t not care.

       We review rulings on a motion for mistrial for abuse of discretion. State v.

Greene, 592 N.W.2d 24, 30 (Iowa 1999). An abuse of discretion will be found

“where (1) there is misconduct, and (2) the defendant was so prejudiced by the

misconduct as to deprive the defendant of a fair trial.” Id.

       We do not agree with Rooney’s contention the prosecutor’s comments

rose to the level of misconduct.       The closing argument responded to the

defense’s theory of the case, which argued against the jury finding the

abandoned house to be an “occupied structure” within the meaning of the

burglary statute, and noting how the house was unoccupied and in a state of

disrepair. This was a permissible strategy on the part of the State. See State v.

Thornton, 498 N.W.2d 670, 674 (Iowa 1993) (“A prosecutor is not required to sit

mute and let the defendant’s interpretation of evidence go unchallenged.”). We

therefore conclude no misconduct took place and Rooney was not deprived of a

fair trial. See Greene, 592 N.W.2d at 30. Consequently, we affirm the district

court’s denial of Rooney’s motion for mistrial.

       Having considered Rooney’s arguments, we affirm his conviction and

sentence for burglary in the third degree.

       AFFIRMED.

       Tabor, J., concurs; McDonald, J., dissents.
                                         12


MCDONALD, J., (dissenting)

       When viewed in the light most favorable to the State, there is not

substantial evidence this waiting-to-be-bulldozed structure was an “occupied

structure” within the meaning of Iowa Code sections 702.12 and 713.1. The

contrary conclusion ignores the common law foundations of the statute, the

statutory text, controlling authority interpreting the statutory text, and the purpose

of the statute. Accordingly, I respectfully dissent.

       “We interpret statutes consistent with common law unless the language of

the statute clearly negates the common law.” State v. Pace, 602 N.W.2d 764,

771 (Iowa 1999).      At common law, burglary was “defined as breaking and

entering any dwelling-house by night with intent to commit a felony therein.”

Oliver Wendell Holmes, Jr., The Common Law 74 (Dover Publ’ns, Inc. 1991)

(1881).   “The object of punishing such a breaking and entering [was] not to

prevent trespasses, even when committed by night, but only such trespasses as

[were] the first step to wrongs of a greater magnitude, like robbery or murder.”

Id. Burglary at the common law vindicated the “right of habitation,” that is the

right of use. 4 William Blackstone, Commentaries on the Laws of England 223

(1769), available at http://avalon.law.yale.edu/subject_menus/blackstone.asp.

Thus, common law burglary did not include “breaking open of houses wherein no

man resides.” Id. at 225.

       Iowa’s earliest criminal code essentially mirrored the common law

formulation of burglary. See, e.g., State v. Jones, 10 Iowa 206, 208 (1859) (“At

common law the intent to commit a felony was necessary to constitute the

offense of burglary; but under our statute the offense is made to consist in
                                         13


breaking and entering any dwelling-house in the night time with intent to commit

the crime of murder, rape, robbery, larceny or any other crime made felony under

our laws.”). Iowa Code section 702.12 expanded the types of structures that can

be subject to burglary beyond mere dwelling houses to include any “building,

structure, appurtenances to buildings and structures, land, water or air vehicle, or

similar place . . . .” By necessity, section 702.12 also expanded the interests

subject to protection beyond the mere right of habitation.        The statute now

protects interests in structures “adapted for overnight accommodation of persons,

or occupied by persons for the purpose of carrying on business or other activity

therein, or for the storage or safekeeping of anything of value.” While the scope

of property and uses protected by the burglary statute has expanded, the code

revisions did not alter the purpose for making burglary a criminal act: to protect a

legally cognizable interest in using the place protected.

       Our cases interpreting sections 702.12 and 713.1 have reiterated the

requirement that the place must have a statutorily defined purpose or use to

qualify as an “occupied structure.” In State v. Pace, our supreme court stated:

“our definition of an occupied structure has two prongs. The first describes the

type of place that can be the subject of burglary, and the second considers its

purpose or use.” Pace, 602 N.W.2d at 769. The first prong requires evidence

the place is the type of place that can be the subject of burglary. The second

prong requires evidence the structure has some statutorily recognized purpose or

use contemporaneous with entry:

              Burglary was never intended to cover all structures, but only
       those occupied by reason of some activity occurring in the
       structure. Although our legislature expanded the definition of
                                         14


       ‘occupied structure’ beyond a common law ‘dwelling house’
       concept, it specifically retained the requirement that the subject
       matter of burglary be occupied in conjunction with some activity
       which takes place in the structure.

Id. at 771. The contemporaneous purpose or use requirement is consistent “with

the fundamental common law concept of burglary as an offense against security

of occupancy.” Id. The contemporaneous purpose or use requirement set forth

in Pace is not new—our cases have recognized this as an essential element of

the offense for over one hundred years. See e.g., State v. Burns, 80 N.W. 545

(Iowa 1899) (“At the common law, to break and enter a building, other than a

mansion or dwelling house, was not burglary; nor is it under the above statute,

unless the enumerated articles are kept therein for the purposes defined. The

particular use to which the building is put, then, is of the essence of the crime.”

(emphasis added)).

       The majority distinguishes Pace on the ground the two-prong test applies

only where it is not obvious the place is adapted for overnight accommodation.

There is nothing in the common law supporting the distinction.          Indeed, the

common law is to the contrary. There is nothing in the statutory text supporting

the distinction.   On the contrary, the plain language of the text shows the

enumerated purposes qualify each of the enumerated places.            See State v.

Newman, 313 N.W.2d 484, 488 (Iowa 1981) (Uhelnhopp, J., dissenting)

(explaining the first part of the statute describes the types of places subject to

burglary and the latter part of the statute qualifies the first). There is nothing in

Pace supporting the distinction.     Indeed, the majority’s distinction is directly

contrary to Pace, which provides the place and purpose tests are elements that
                                       15


must be proved in all burglary cases. There is nothing in our case law, generally,

that supports the distinction. Indeed, our courts repeatedly have required the

State to prove an enumerated purpose or use even where the place is the

“quintessential” place protected by statute.   See, e.g., State v. Sanford, 814

N.W.2d 611, 616 (Iowa 2012) (stating “[Defendant’s] Dodge Stratus is clearly a

land vehicle. This means that the pivotal issue in this case is whether the second

prong of the definition found in section 702.12 has been satisfied”); State v.

Sangster, 299 N.W.2d 661, 663 (Iowa 1980) (holding evidence was sufficient

where garage was used to store automobile); State v. Sylvester, 331 N.W.2d 130

(Iowa 1983) (applying two-pronged test to delivery truck); Burns, 80 N.W. at 545-

46 (applying two-prong test to a “building, to wit, a printing office” and holding

evidence sufficient where goods, merchandise, and valuable things were kept for

sale”); State v. Dixon, No. 11-1750, 2012 WL 6193877 (Iowa Ct. App. Dec. 12,

2012) (applying two-prong test to automobile). Other courts have conducted a

similar purpose and use analysis when determining whether a house was subject

to burglary.   See, e.g., State v. Albert, 426 A.2d 1370, 1373-74 (Me. 1981)

(applying purpose and use test to summer cottage); Trotter v. State, 623 S.W.2d

504, 505 (Tex. Ct. App. 1981) (applying purpose and use test to mobile home).

         I agree with the majority’s attempt to distinguish Pace in one limited

sense.     In the typical case, a house is the quintessential place adapted for

overnight accommodation or one of the other enumerated purposes.           In the

typical case, it is thus very easy for the State to prove the house at issue was

adapted for overnight accommodation or used for one of the other enumerated

purposes. The majority errs, however, in concluding that because it is typically
                                       16


easy for the State to prove a house is used for an enumerated purpose, then

purpose is no longer an element of the offense.          As set forth above, that

conclusion is contrary to controlling authority.    That conclusion is also not

consistent with the jury instruction given in this case, in which the jury was

instructed the State was required to prove beyond a reasonable doubt this house

was used for a particular purpose. Taken to its final conclusion, the majority’s

interpretation of Pace would require the jury be instructed that a house, as a

matter of law, is a place adapted for overnight accommodation.           Given my

conclusion that the State must prove a statutorily recognized purpose or use at

the time of entry, I cannot conclude there is substantial evidence supporting the

verdict.

       The   State   contends   the   property     was   adapted   for   overnight

accommodation of persons. On the date Rooney allegedly burgled the property,

it is not disputed the property was not habitable. The majority sets forth with

sufficient detail the physical condition of the property. Three things should be

emphasized, however. First, the City had boarded the house with plywood to

prevent people from entering the property because the City was not using, nor

did it want to use, the property for overnight accommodation. Second, on the

offense date, the property already was past a scheduled demolition date. Third,

the property was demolished several days after the offense date. Thus, at the

time of Rooney’s entry, the City had no intent to use the property for overnight

accommodation.

       The majority seems to take the position that because “[o]ne of a house’s

primary purposes—abandoned or otherwise—is accommodating people to stay
                                        17


overnight,” then a house is by definition an occupied structure. This is contrary to

the common law rule that burglary did not include “breaking open of houses

wherein no man resides.”       4 Blackstone at 225.       This is contrary to the

contemporaneous purpose or use requirement set forth in over one hundred

years of precedent as articulated in Burns and Pace. This is contrary to the

rationale for making burglary a criminal act, which is to protect activity and use

inside the building and not just the building itself. See Pace, 602 N.W.2d at 768

(stating burglary “was not designed to protect property or ownership, [but] rather

the notion that people should be able to feel secure in their homes”). This is

contrary to our rules of statutory construction.     The majority’s interpretation

renders the contemporaneous purpose or use requirement in the statute a nullity.

If the statute does not require proof of purpose or use contemporaneous with

entry, then the statutory qualifications serve no independent purpose. See State

v. Nicoletto, 845 N.W.2d 421, 427 (Iowa 2014 (“[W]e interpret statutes in a

manner to avoid absurd results and to avoid rendering any part of an enactment

superfluous.”)

       The majority also relies on the “fact that abandoned houses are notorious

for being ‘occupied’ by trespassers, sometimes in the context of the perfect

shelter to harbor illegal activity,” as evidence abandoned houses are occupied

structures. While it may be true that some abandoned properties are so used, to

conclude that all or even substantially all are so used appears to be an

adjudicative fact of which we should not take judicial notice.        See State v.

Stevens, 719 N.W.2d 547, 550 (Iowa 2006) (“To be capable of being judicially

noticed, a matter must be of common knowledge or capable of certain
                                          18


verification.” (citation omitted)). Second, and related, the conclusion suffers the

fallacy of division.   We cannot soundly conclude this particular building was

occupied by trespassers merely because some other abandoned buildings may

be occupied by trespassers. Finally, the fact trespassers may use abandoned

properties, in general, and may have used this property, in particular, is not

relevant. “[B]urglary is an invasion of the possessory property rights of another

. . . .” State v. Hagedorn, 679 N.W.2d 666, 671 (Iowa 2004) (citation omitted);

see Pace, 602 N.W.2d at 768 (stating burglary is not intended to protect

property); State v. Morrisey, 22 Iowa 158, 160 (Iowa 1867) (holding the injury to

be protected is to the owner of the property); State v. Tyerman, No. 09-0113,

2010 WL 787935, at * 12 (Iowa Ct. App. Mar. 10, 2010) (stating the purpose of

the burglary law is to protect the person with custody and control of the property

(citation omitted)). The statutory requirement of contemporaneous purpose or

use refers to the purpose or use put to the property by the party with a legally

cognizable interest in the property. Trespassers have no cognizable interest in

this property; their use of the property is immaterial.

       The only evidence material to the overnight accommodation prong was

the City—the entity with legal interest in the property—had concluded the

property was not suitable for overnight accommodation, had boarded up the

property to prevent the property being used for overnight accommodation, and

had entered into an agreement to raze the property. Although his statement to

the jury is not evidence, it should be noted the prosecutor concluded there was

insufficient evidence supporting the overnight accommodation prong and the

purpose of the statute was not to protect past purposes or uses:
                                        19


      I’m kind of more of a cut to the chase type of guy. This was a bad
      house. Nobody was living there. I’m not saying it was adapted for
      accommodations. I couldn’t say why don’t you guys find for me on
      that element because at one time it was adapted for overnight
      accommodations. That’s not what the law is designed to [do]. I
      don’t think that really is fair here.

The prosecutor’s statement to the jury was correct.      There is nothing in the

record to support the verdict on this ground.

      The State argues the property was an occupied structure because the

property was being used for storage or safekeeping things of value. The State

argues that because the evidence showed the structure had fixtures or

components (wiring, metal, mantel) with scrap value, then the structure was used

for the storage or safekeeping things of value. The fact the house itself had

scrap value is not material to the question of whether the house was adapted “for

the storage or safekeeping of anything of value.” The common understanding of

the phrase “adapted for storage or safekeeping of anything of value” would seem

to mean storing or safekeeping something of value inside the structure but

separate and distinct from the structure. In common usage, one would not state

she “stores” her copper wiring within the walls of her home; the copper is part

and parcel of the structure itself and not something placed for storage or

safekeeping in the structure.

      Even assuming, however, that there were fixtures of other parts of this

property that were effectively being stored or maintained, the City was no longer

using this property for this purpose on the date of the offense. On the date of the

offense, the building was past its scheduled demolition date. While Hochwender

testified the City previously had tried to salvage items from the property, it had
                                         20


abandoned those plans by the offense date. Hochwender testified no person

went to retrieve anything of value between the offense date and the date of

demolition. The fact the building was demolished without the alleged things of

value being retrieved is contrary to the concept of “storing” and “safekeeping,”

both of which connote keeping the items for future use rather than destruction.

See Webster’s Third New Int’l Dictionary 1998 (1993) (defining “safekeeping” as

“the act or process of preserving in safety from injury, loss, or escape.”); see

Storage        Definition,         Merriam-Webster,               www.merriam-

webster.com/dictionary/storage                 (last   visited   August   11,   2014)

(defining “storage” as “the act of storing: the state of being stored; especially: the

safekeeping of goods in a depository (as a warehouse)”). See also Pace, 602

N.W.2d at 772 (“Additionally, the word “storage” connotes some degree of

permanency, not transience.”).

       The cases from other jurisdictions upon which the State relies are

distinguishable. In Askew v. Commonwealth, No. 2008-CA-000240-MR, 2009

WL 875059, at *2 (Ky. Ct. App. Apr. 3, 2009), the court affirmed a burglary

conviction where the defendant burgled “an uninhabited, dilapidated, condemned

house.”    However, Kentucky’s burglary statute defined “building” as “any

structure that meets the definition of a building as used in common parlance,

including abandoned, uninhabitable, and condemned structures”              Id. at *1.

Unlike Iowa, Kentucky law does not require proof of “activity which takes place in

the structure.” See Pace, 602 N.W.2d at 771. In Herrick v. State, 965 P.2d 844

(Kan. Ct. App. 1998), the court affirmed a burglary conviction regarding a

dilapidated home, but not so dilapidated, as here, that it raised the issue of
                                        21

whether it could be used as a human habitation. See id. at 848. Further, the

court noted its burglary statute had a “broad definition” and it was sufficient to

show the building at one point in time “was intended for use as a home.” Id. at

847.   In contrast, our cases hold there must be some use or purpose

contemporaneous with the offense. See Pace, 602 N.W.2d at 771. The last

case relied on by the State, State v. Kowski, 423 N.W.2d 706, 707 (Minn. Ct.

App. 1988), involved the burglary of an under-construction summer cabin used

by the victim as a temporary residence.          The burglary statute in Kowski

encompassed buildings used as a “permanent or temporary residence.”             423

N.W.2d at 709. I conclude such a structure would fall within the ambit of the

burglary statute because the structure was to be used as a place for overnight

accommodation.      In our case, however, the property owner concluded the

property no longer had any use, unless waiting for demolition is considered a

use.

       Finally, the State argues the failure to include dilapidated buildings as

falling within the burglary statute will incent crime against blighted property.

While that policy consideration is important, the State’s fear is overstated. First,

the facts of this case are limiting.   Second, and related, there is a material

distinction between blighted property and property scheduled for demolition. In

the latter case, the person with a cognizable interest in the property determined

the property no longer has a purpose or use of any sort. Third, the State’s

argument is premised on a false dichotomy: either Rooney’s acts constituted

burglary or the acts are not subject to criminal sanction.          Other criminal

statutes—including, for example, theft, criminal mischief, and trespass—can be
                                       22


used to advance the State’s interest in protecting blighted properties. Likewise,

other criminal statutes can be used to protect the State’s interest in deterring

conduct that may occur in blighted property.

       As a general rule, “acts are rendered criminal because they are done

under circumstances in which they will probably cause some harm which the law

seeks to prevent.” Holmes at 75. “The test of criminality in such cases is the

degree of danger shown by experience to attend that act under those

circumstances.” Id. The act of burglary is rendered criminal to protect a legal

interest in the use of the place subject to protection.    Where, as here, the

possessor concluded the property had no purpose or use and had contracted for

the property’s destruction, the harm the law seeks to prevent no longer exists.

Accordingly, I respectfully dissent.
