                   IN THE COURT OF APPEALS OF IOWA

                                     No. 13-1522
                                 Filed June 25, 2014

IN THE INTEREST OF S.P.

S.P., Minor Child,
       Appellant.
________________________________________________________________

       Appeal from the Iowa District Court for Polk County, Carol Egly,

(adjudication) and Thomas Mott (disposition), District Associate Judges.



       A teenager appeals his juvenile delinquency adjudication for burglary in

the third degree. REVERSED AND REMANDED.



       Joseph Keith Strong of Youth Law Center, attorney and guardian ad litem

for appellant.

       Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney

General, John P. Sarcone, County Attorney, and Jennifer Galloway, Assistant

County Attorney, for appellee.



       Considered by Vaitheswaran, P.J., and Tabor and Bower, JJ.
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TABOR, J.

      Sixteen-year-old S.P. challenges the juvenile court’s determination he

committed the delinquent act of burglary in the third degree. He contends the

State’s circumstantial evidence fell short of showing beyond a reasonable doubt

he entered an occupied structure with the intent to commit a theft, or that he

aided and abetted someone who did.          Because we agree the State’s case

against S.P. rested on too many inferences to satisfy the burden of proof, we

reverse and remand for dismissal of the delinquency petition.

I. Background Facts and Proceedings

      On the morning of July 9, 2013, Aquanda Carter was out smoking on her

back deck when she saw a teenager, later identified as S.P., and his taller

companion, later identified as D.M., walking down the alley that ran between her

house and Charles Walker’s property at 1520 Clark Street.         She saw S.P.

carrying a bat or stick. Carter watched the pair walk onto the property at 1520

Clark Street. Carter lost sight of S.P. and D.M. when they went between two

buildings. Carter then heard pounding. She testified: “it sounded like wood, like

beating on wood.” Next she noticed the taller boy standing on the corner looking

west. She then went inside and called Walker’s wife Sandy and told her what

was going on.

      Charles Walker uses the building at 1520 Clark Street for storage. He

was at work on the morning of July 9 when his wife called him and relayed what

Carter had seen and heard. When he arrived at his building fifteen to thirty

minutes later, he noticed a plexiglass window had been broken. His wife Sandy
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was driving in the area and passed the two boys Carter described.         Walker

followed them in his truck until he met a police officer responding to the call.

Walker then returned to his property.

      Walker noticed a generator, miter box saw, and a small propane heater

were missing. He had stored all these items in the back of his building. He also

saw a glass window in the back of the building was broken out and a door in the

back was opened from the inside. Walker testified the open door was usually

locked. He estimated it was thirty feet from the back door to the alley. Walker

also testified that when he checked the building a few days earlier, nothing was

missing, no damage was done, and the doors were all secure.

      Officers Charles Guhl and Patrick Donahue of the Des Moines Police

Department responded to the call. Officer Donahue found two boys matching the

description given by Carter walking westbound on Clark Street from Walker’s

building. S.P. told him they were in the neighborhood looking for side jobs, such

as mowing lawns. At this point, S.P. no longer was carrying the bat.

      Officer Guhl went to the property and helped Walker look for the missing

items. After a search of the surrounding area, they were unable to find any of the

allegedly stolen property. They also could not locate a bat or stick as seen by

Carter.

      As the officers detained the boys, Walker had a chance to talk to them.

He said if they returned his belongings he would not “press charges.”        S.P.

looked down, but did not reply. Walker testified D.M. said something like “how
                                          4



could we carry a generator” though Walker had not told the boys he was missing

a generator. Walker had described the missing items to police.

       On July 10, 2013, the State charged S.P. with the delinquent act of

burglary in the third degree in violation of Iowa Code sections 713.1 and

713A.6(A)(1) (2013). The State later added a charge of criminal trespass in

violation of Iowa Code sections 716.7(2)(a) and 716.8(2) by amending the

delinquency petition on August 27, 2013.

       On September 3, 2013, the court held a delinquency hearing. At the close

of the hearing, the court made oral findings that the State had proved beyond a

reasonable doubt S.P. committed or aided and abetted in the commission of

burglary in the third degree. The court did not address the trespass charge,

finding it was a lesser included offense of the burglary. S.P. now appeals.

II. Standard of Review

       We review delinquency proceedings de novo. See In re A.K., 825 N.W.2d

46, 49 (Iowa 2013). “We presume the child is innocent of the charges, and the

State has the burden of proving beyond a reasonable doubt that the juvenile

committed the delinquent acts.”     Id.   Although we give weight to the factual

findings of the juvenile court, especially regarding the credibility of witnesses, we

are not bound by them. See In re J.D.F., 553 N.W.2d 585, 587 (Iowa 1996).

Because juvenile proceedings do not offer the right to a jury trial, a more in-depth

appellate review of the facts supporting and opposing adjudication is appropriate.

A.K., 825 N.W.2d at 51.
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         Delinquency adjudications are special proceedings that serve as an

alternative to a criminal prosecution—keeping the best interest of the child as the

objective. Id.; In re Henderson, 199 N.W.2d 111, 116 (Iowa 1972).

III. Analysis

         The State was required to prove beyond a reasonable doubt the following

elements of burglary in the third degree: S.P. entered or aid or abetted another

person who entered an occupied structure at 1520 Clark Street, without right,

license, privilege, or authority to do so; and did so with the intent to commit a

theft.

         The State acknowledged at the close of the delinquency hearing that it

offered “no direct evidence” that S.P. entered or left Walker’s property. But the

assistant county attorney highlighted “a variety of circumstantial evidence”

supporting the burglary elements. Here is the sum total of that evidence: (1) an

eyewitness identified S.P. walking down an alley with what appeared to be a bat;

(2) the witness saw S.P. and his companion go between buildings at 1520 and

1522 Clark Street; (3) she then heard pounding of wood on wood but could not

see the source of the pounding; (4) she saw S.P.’s companion looking out and

around the area of Clark and 16th Streets; (5) alerted by the witness to these

events, Walker arrived at his building in less than thirty minutes and found a

broken window, a door opened from the inside, and items missing; (6) Walker

testified the building was secure when he visited a few days earlier, and had not

noticed any damage when driving by earlier that morning on his way to work; and

(7) S.P.’s explanation for being in the area to find a lawn job was “inconsistent”
                                           6



with the amount of time the boys spent around Walker’s property. In her closing

argument, the assistant county attorney did not mention the specific intent

element of burglary nor explain how the juvenile court could infer S.P.’s specific

intent to commit theft from the State’s evidence.

       S.P.’s attorney pounced on the weaknesses in the State’s case in his

closing argument, concluding, “the only thing that’s been proven with any amount

of consistency is that [S.P.] was walking around in an alley. [S.P.] was walking

around in the street, and neither of those things are in any way illegal.” On

appeal, S.P. specifically challenges the State’s proof he entered the building at

1520 Clark Street or that he had the specific intent to commit a theft.

       Upon our de novo review—and by performing the in-depth appellate

examination of the facts supporting and opposing adjudication required by

A.K.1—we conclude the State’s evidence was insufficient to prove S.P. entered

the occupied structure with the intent to commit the theft, or aided and abetted

someone who committed the burglary.                Our law has no bias against

circumstantial evidence. See Iowa R. App. P. 6.904(3)(p) (expressing the “well-

established” legal proposition that “[d]irect and circumstantial evidence are

equally probative.”). But like direct evidence, it must raise a fair inference of

culpability; if circumstantial evidence does no more than create speculation,

suspicion, or conjecture, it is insufficient. See State v. Clarke, 475 N.W.2d 193,

197 (Iowa 1991).      We consider all the evidence in the record, not just the



1
  Our supreme court rejected the argument that the evidence in juvenile delinquency
cases should be viewed in the light most favorable to the State. A.K., 825 N.W.2d at 49-
50.
                                          7



evidence supporting the State’s case. See State v. Speicher, 625 N.W.2d 738,

741 (Iowa 2001). Here, the State’s evidence cast suspicion on S.P.’s activities

on the morning of July 9, 2013, but did not establish all the elements of burglary.

         The district court specifically found the testimony of Walker and Carter to

be credible. We do not question their credibility. But their testimony, even if

believed, did not prove S.P.’s culpability.

         Burglary has a specific intent element. Iowa Code § 713.1; Hughes v.

State, 479 N.W.2d 616, 618 (Iowa Ct. App. 1991). Specific intent is seldom

capable of direct proof. State v. Kirchner, 600 N.W.2d 330, 334 (Iowa Ct. App.

1999). The State may establish the intent element by circumstantial evidence

and reasonable inferences arising from that evidence. See State v. Acevedo,

705 N.W.2d 1, 5 (Iowa 2005). To establish liability as aider and abettor, the

State must introduce substantial proof to show the accused assented or lent

countenance and approval to the delinquent act. See State v. Allen, 633 N.W.2d

752, 754-755 (Iowa 2001). Knowledge of the crime is essential, but proof of

nothing more than knowledge or mere presence at the scene of the crime is not

enough to prove aiding and abetting. Id. The State was required to prove either

that S.P. had the specific intent to commit a theft when he or an accomplice

entered the building, or S.P. had knowledge the principal possessed the

necessary intent. See State v. Lockheart, 410 N.W.2d 688, 693 (Iowa Ct. App.

1987).

         Carter’s testimony placed S.P. in the vicinity of Walker’s building. She

saw him with a bat or stick, but then lost sight of him.                     Almost
                                           8



contemporaneously, she heard banging of wood on wood. She did not see S.P.

strike the building with the stick, she did not hear glass break, and she did not

see anyone entering the building, or any property being removed. In fact, no

witness saw anyone entering the building or taking any property. The bat or stick

described by Carter was never located.

          The police investigation of the reported break-in resulted in more

questions than answers. When officers and Walker inspected the building, they

found a broken glass window in the back and the door opened from the inside.

Walker testified someone with a “small frame” could have crawled through the

window; when asked whether S.P. could have done so, he responded:                 “I

question that myself a lot of times. I think he could. It would be difficult, but I

think he could.” Walker also noticed a plexiglass window on the front of the

building was broken out, but that possible entry point was visible from Clark

Street.     Walker testified he had last been inside his building the previous

weekend—three days before this incident. He testified it was possible someone

could have broken in during that time period without his knowledge.

          Office Guhl recalled police took the boys into custody just a block or two

from Walker’s shed. He testified it was “nontypical behavior” for perpetrators to

circle back to the scene of the crime rather than fleeing the vicinity.

          The State presented no evidence S.P. was familiar with the neighborhood

or otherwise knew anything of value was stored in Walker’s building. Likewise,

the State presented no evidence to show S.P. knew that D.M. or someone else
                                           9



had the intent to take something of value from the shed. Walker testified he had

not seen either boy before that day.

         Further missing from the State’s case was any link between the allegedly

stolen items and S.P. Iowa law allows an inference that an accused committed

burglary from the possession of recently stolen property. See State v. Lewis, 242

N.W.2d 711, 716 (Iowa 1976). But neither S.P. nor his companion were found in

possession of Walker’s property. The items missing from the shed were too big

to be concealed under clothing.        In fact, the generator weighed around forty

pounds and was stored on a wheeled cart. After detaining the boys about a

block from the shed and searching the area, police found none of the missing

items.

         On appeal, the State relies on a line from Walker’s testimony where he

recalled D.M. asking while being detained by police, “how could we carry a

generator?” even though Walker had not told the boys directly a generator was

gone. We do not read a great deal into this out-of-court statement. Walker

acknowledged telling the police what was missing and the record does not reflect

whether the boys were in earshot of that conversation.

         “An inference must do more than ‘create speculation, suspicion, or

conjecture.’ Evidence that allows two or more inferences to be drawn, without

more, is insufficient to support guilt.” State v. Brubaker, 805 N.W.2d 164, 172

(Iowa 2011) (internal citations omitted).      Carter’s testimony allowed for an

inference that S.P. pounded on the shed, while D.M. stood lookout. Walker’s

testimony concerning his missing items allowed for an inference that someone
                                        10



recently entered the shed and stole his belongings. But, to sustain its finding of a

delinquent act, the juvenile court was also required to infer—without additional

evidentiary support—that S.P. had the intent to commit a theft when entering the

shed, or knew of the specific intent of an accomplice who entered the shed.

Without any proof supporting S.P.’s intent or knowledge, this essential element of

burglary rests on mere conjecture. The State failed to prove its case beyond a

reasonable doubt.

       The State does not make an alternative argument on appeal that we

should consider the offense of criminal trespass.       And even if we were to

consider that offense, we note section 716.8(2) requires proof of damage totaling

more than $200 and Walker testified the damage to his building was “between

$200 or a little less.”

       REVERSED           AND   REMANDED        FOR     DISMISSAL       OF     THE

DELINQUENCY PETITION.
