                    IN THE COURT OF APPEALS OF IOWA

                                   No. 15-1150
                               Filed June 29, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

KRISTINA ANN MANASIL,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for O’Brien County, Don E. Courtney,

Judge.



      Kristina Ann Manasil appeals her conviction and sentence of arson in the

first degree and fraudulent insurance claim submission. AFFIRMED IN PART,

VACATED IN PART, AND REMANDED.




      Mark C. Smith, State Appellate Defender, and Patricia A. Reynolds,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Jean C. Pettinger and Kevin R.

Cmelik, Assistant Attorneys General, for appellee.



      Considered by Potterfield, P.J., and Mullins and McDonald, JJ.
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MULLINS, Judge.

       Kristina Ann Manasil appeals her conviction and sentence of arson in the

first degree and fraudulent insurance claim submission.           Manasil raises two

issues on appeal: (1) the district court erred in failing to find there was insufficient

evidence that the presence of a person in the property could have been

reasonably anticipated and (2) the district court erred by ordering Manasil to pay

a surcharge on the insurance fraud count. Because the surcharge imposed does

not apply to the code section under which Manasil was convicted, we vacate that

portion of her sentence. On her remaining claim, we affirm.

       I.     Background Facts and Proceedings

       In 2010, Manasil purchased Budd-Z’s Sports Bar and Grill with her

husband, Jon. They insured the business for approximately $1.2 million. The

couple divorced in 2013 and agreed to sell the business. In May 2013, they

entered into a purchase agreement with potential buyers. The buyers were to

assume the business’s debt and pay an additional $100,000 to be split between

Manasil and Jon. On May 14, 2013, the building burned down.

       Around 5:30 or 6:00 p.m. on May 14, 2013, two customers were in Budd-

Z’s and noticed the smell of something burning. The smell intensified, and an

employee came to their table and apologized, indicating he had burned

something. The customers left the premises at approximately 6:20 or 6:25. The

building was engulfed in flames by 6:44 p.m.

       Adam Sickles, Manasil’s former boyfriend, and Thomas Hansen, a Budd-

Z’s employee, both generally testified a fire had started accidently in a box in the

storage room. When Sickles went to extinguish the fire, Manasil instructed him
                                             3


to put paper in the box, light it on fire, and let the building burn down. Everyone

left the building, and Budd-Z’s closed early around 6:35.

       After the fire, Manasil submitted a claim to her insurance.

       A jury found Manasil guilty on May 5, 2015. Manasil appeals.

       II.     Standard and Scope of Review

       Sufficiency-of-the-evidence claims are reviewed for correction of errors at

law. See State v. Vance, 790 N.W.2d 775, 783 (Iowa 2010). “We will sustain the

jury’s verdict if it is supported by substantial evidence.”            Id.   “Evidence is

substantial if it would convince a rational trier of fact the defendant is guilty

beyond a reasonable doubt.” Id. (quoting State v. Jorgensen, 758 N.W.2d 830,

834 (Iowa 2008)).       Direct and circumstantial evidence are equally probative.

State v. Meyers, 799 N.W.2d 132, 138 (Iowa 2011).

       We review challenges to the legality of a sentence for correction of errors

at law. State v. Seats, 865 N.W.2d 545, 553 (Iowa Ct. App. 2010) (“We use the

correction of errors at law standard when the statute does not authorize the

sentence.”).

       III.    Analysis

               A.      Sufficiency of the Evidence

       As provided by the jury instructions, the State was tasked with proving, in

relevant part, that Manasil caused a fire with the intent to damage the property,

that “[t]he presence of a person in the property could have been reasonably

anticipated,”1 and that an insurer was exposed fraudulently to risk of loss or that


1
  At the time of the offense, section 712.2 provided, in relevant part, “[a]rson is arson in
the first degree when the presence of one or more persons can be reasonably
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these acts unreasonably endangered the property or life of another. Manasil

challenges only the element regarding the presence of a person in the property.

       The testimony at trial establishes the customers were in the building until

approximately 6:20 or 6:25 p.m. The building was closed by approximately 6:35

p.m. Sickles testified two female patrons were in the bar when he and Manasil

arrived and headed to the storage room and that, while in the storage room, he

attempted to pour water on the remaining embers but was stopped by Manasil

and told to restart the fire. Sickles indicated they were in the storeroom for only

minutes before the fire was set. When asked what he saw after leaving the

storage room, Sickles indicated, “I think the ladies had already left at that point.”

He further testified the building was open for business, the door was unlocked,

and a customer could have walked in at any time. Sickles recalled they locked

the door when the business was closed early.

       Hansen also testified at trial as follows:

              Q. . . . When [Manasil] came in with [Sickles], who was in
       the establishment? A. Justin, myself, Aaron and two ladies eating
       in the bar area.
              ....
              Q. And what happened next? A. They—[Manasil] called us
       to the back, into the storage room again to discuss the fire.
              ....
              Q. And were the customers still in the restaurant? A. They
       were.
              Q. And so who met in the storage room? A. [Sickles],
       myself, Aaron, Justin and [Manasil].
              Q. And what happened in the storeroom? A. We—it was
       discussed to start the fire back up.
              Q. What was said by Ms. Manasil? A. Basically, that we—
       she would like to start the fire back up and get everybody out.
              Q. Were the customers still in the building? A. Yes.

anticipated in or near the property which is the subject of the arson.” Iowa Code § 712.2
(2013) (emphasis added). However, the jury instruction omitted the phrase “or near.”
                                           5


               Q. What happened then? A. [Sickles] reached up with a
       lighter and reignited the flame.
               ....
               Q. And where did you go? A. We went back to the kitchen
       area, Justin and myself.
               ....
               Q. Were the customers still in the bar when you went by?
       A. To my knowledge, they were.
               Q. And that was after you saw [Sickles] li[ght] a fire? A.
       Yes.[2]

       In addition, witnesses testified the building was open for business and

customers were usually on the premises at that time.

       Manasil relies upon State v. Benson, No. 04-1036, 2006 WL 1229992

(Iowa Ct. App. Apr. 26, 2006), to support her claim she could not have

reasonably anticipated a person would be on the property.              In Benson, we

concluded the defendant could not have reasonably anticipated another person

would have been in the property where the property was the defendant’s house,

he was the sole resident of the home, he had recently changed the locks to the

house, and he had no reason to believe another party would gain entry to the

house.   Id. at *4.   This case is not analogous.        Here, there was testimony

establishing customers were present and the building was open for business. On

this record, and viewing the evidence in the light most favorable to the State,

there is substantial evidence upon which the jury could find the presence of a

person in the property could have been reasonably anticipated. See State v.

Vaughan, 859 N.W.2d 492, 498 (Iowa 2015) (finding evidence was sufficient

where, in part, the defendant’s mother was in the home at the time the fires were

set in the home and detached garage).

2
 Also in evidence was a video clip of a police interview of Hansen in which he stated he
believed the women had left before the fire was set and the women were not in danger.
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              B.      Surcharge

       As part of her sentence, Manasil was required to pay a law enforcement

initiative surcharge of $125, pursuant to Iowa Code section 911.3.             Manasil

contends the district court erred in imposing this surcharge; the State also

requests that the court sever that portion of the sentence, acknowledging that the

statute does not apply to Manasil’s offense.         The surcharge was applied to

Manasil’s conviction for insurance fraud under Iowa Code section 507E.3(2)(a).

Criminal violations under Iowa Code chapter 507 do not fall within the province of

section 911.3. See Iowa Code § 911.3 (providing “the court or clerk of the district

court shall assess a law enforcement initiative surcharge of one hundred twenty-

five dollars if an adjudication of guilt . . . has been entered for a criminal violation

under . . . [c]hapter 124, 155A, 453B, 713, 714, 715A, or 716 6 [or] . . . [s]ection

719.7, 719.8, 725.1, 725.2, or 725.3”). Accordingly, we find the district court

erred when it imposed this surcharge and vacate that portion of Manasil’s

sentence.

       IV.    Conclusion

       We affirm Manasil’s conviction but vacate the provision of her sentence

imposing a law enforcement initiative surcharge of $125 and remand for the clerk

of court to correct the record.

       AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
