                    IN THE SUPREME COURT OF IOWA

                            No. 97 / 05-0561

                        Filed September 22, 2006


STATE OF IOWA,

      Appellee,

vs.

CHARLOTTE HUTCHISON, FRANK CORDARO,
JOSH PLANK, RITA HOHENSHELL, and EDWARD BLOOMER,
      Appellants.


      Appeal from the Iowa District Court for Polk County, Michael D.

Huppert, Judge.



      Defendants appeal their convictions for trespass. AFFIRMED.



      Sally Frank, Des Moines, for appellants.



      Thomas J. Miller, Attorney General, Darrel L. Mullins, Assistant

Attorney General, John P. Sarcone, County Attorney, and Justin Allen,

Assistant County Attorney, for appellee.
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TERNUS, Justice.

        Appellants, Charlotte Hutchison, Frank Cordaro, Josh Plank, Rita

Hohenshell, and Edward Bloomer, appeal their convictions for simple

misdemeanor trespass.      These convictions arose from the defendants’

participation in a protest near N.W. 78th Avenue in Polk County in the

vicinity of the STARC Armory. The defendants were arrested when they

crossed a painted line within the boundary of land leased to the State of

Iowa Army National Guard by the United States Army Corps of Engineers.

Because this line was within the right of way for N.W. 78th Avenue, the

defendants claimed they were on public land and therefore could not be

charged with criminal trespass. The jury rejected this claim and convicted

the defendants. On appeal, the defendants assert there was insufficient

evidence to support the jury’s finding that they trespassed on private land.

Because we find the evidence adequate to support the jury’s verdict, we

affirm.

        I. Background Facts and Proceedings.

        Sometime before November 16, 2003, the Iowa Army National Guard

(“Guard”) became aware that demonstrators planned an anti-war protest on

property owned by the Army Corps of Engineers (“Corps”) across the road—
N.W. 78th Avenue—from a gate to the STARC Armory.               Prior to the

anticipated demonstration, Lt. Col. Matthew Pitstick, chief training site

manager for the armory, used spray paint to mark the Guard’s property

line.

        A lease introduced at trial showed the Guard had leased a parcel of

land in the Saylorville Lake Flood Control Project from the Corps in 1989 for

the purpose of constructing an armory. Included in the lease was a 2850

foot, federally owned strip of land called N.W. 78th Avenue, which

connected Corps property near the Saylorville Dam and the armory to N.W.
                                      3

Beaver Drive.   Under the terms of the lease, this roadway—N.W. 78th

Avenue—was to be used for access to the Saylorville Lake Project, and the

Guard agreed to “assume total responsibility for the operation,

maintenance, repair and replacement” of the roadway, including

“maintain[ing] the road in good condition and . . . preserv[ing] a smooth

surface.”   The agreement specifies that the right of way for N.W. 78th

Avenue extends fifty feet in each direction from the center of the roadway.

The paved road itself is twenty-two feet wide. The line spray-painted by Lt.

Col. Pitstick was forty-five feet from the center of the road.

      On November 16, 2003, the defendants were members of a group that

peaceably assembled on the Corps property across from the armory. The

group was repeatedly informed by a Guard member that the Guard would

not allow a public gathering on its property, that the painted line

demarcated that property, and that crossing the line for such a gathering

would result in arrest. Notwithstanding these admonitions, following a

short statement, the defendants grasped hands and intentionally crossed

the painted line. As warned, they were arrested and charged with criminal

trespass, in violation of Iowa Code section 716.7(2)(b) (2003), a simple

misdemeanor.
      The cases against the defendants proceeded to a joint jury trial. At

the conclusion of the State’s evidence, the defendants moved for a judgment

of acquittal, asserting the State had failed to establish the offense of

trespass. They cited an Iowa Code provision that states a trespass cannot

take place “upon the right-of-way of a public road or highway.” Iowa Code §

716.7(4).   The court denied the motion, and after evidence from the

defendants, the case was submitted to the jury. The jury was instructed

that the State had to prove the defendants “entered upon the property of the

Iowa National Guard.” They were also told that “[t]he term ‘trespass’ does
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not mean the entering upon the right-of-way of a public road or highway.”

The jury returned verdicts finding each defendant guilty of simple

misdemeanor trespass. The defendants were sentenced to time served,

which amounted to one or two nights in jail for each defendant.

      The defendants appealed their convictions to the district court. The

issue, the district court noted, was whether N.W. 78th Avenue was a “public

road” and therefore exempt from trespass. The defendants argued to the

court that N.W. 78th Avenue was a public road under the doctrines of

prescription or dedication.        The court concluded the evidence was

insufficient to establish a public road under either theory and so affirmed

the jury’s verdicts.

      This court granted the defendants’ petition for discretionary review.

In this appeal, the defendants contend the State failed to present sufficient

evidence that the roadway in question was a private road. They claim the

evidence established that the road became a public roadway under the

doctrines of prescription and dedication. 1

      II. Scope and Standard of Review.

      The defendants claim the trial court erred in refusing to grant their

motion for judgment of acquittal based on the insufficiency of the evidence.
See generally State v. Allen, 304 N.W.2d 203, 206 (Iowa 1981) (“A motion for

judgment of acquittal is a means for challenging the sufficiency of the

evidence to sustain a conviction . . . .”). “If the jury’s verdict is supported by

substantial evidence, it is binding on the court.” State v. Corsi, 686 N.W.2d

      1The   defendants also complain that the district court reviewing the jury
verdicts erroneously placed the burden of proof as to the status of the road on the
defendants. Even if the defendants are correct, the supreme court’s review is
focused on the judgments of conviction entered by the trial court. There is no
claim made on appeal that the jury was incorrectly instructed as to the burden of
proof. Therefore, any error made by the district court sitting as a reviewing court
does not affect the validity of the jury’s verdict. Consequently, we do not consider
whether the reviewing court properly analyzed the issues presented to it.
                                        5

215, 218 (Iowa 2004). Therefore, our review is for correction of errors of

law. Id.

      In determining the correctness of a ruling on a motion for judgment of

acquittal, we do not resolve conflicts in the evidence, pass upon the

credibility of witnesses, or weigh the evidence. See State v. Williams, 695

N.W.2d 23, 28 (Iowa 2005). “[S]uch matters are for the jury.” Id. Instead,

we ascertain whether the evidence “ ‘could convince a rational jury of the

defendant’s guilt beyond a reasonable doubt.’ ” Corsi, 686 N.W.2d at 218

(citation omitted). Evidence that raises only a suspicion or generates only

speculation is not substantial. Id. In evaluating the evidence, we consider

all the evidence in the record, and we view it in the light most favorable to

the jury’s verdict. Id.

      III. Pertinent Statutes.

      The statute the defendants were found guilty of violating states that

criminal trespass includes
      [e]ntering . . . property without justification after being notified
      or requested to abstain from entering . . . by the owner, lessee,
      or person in lawful possession, or the agent or employee of the
      owner, lessee, or person in lawful possession . . . .
Iowa Code § 716.7(2)(b). Of particular significance to the present case, the

statute further provides that “[t]he term ‘trespass’ does not mean the

entering upon the right-of-way of a public road or highway.” Id. § 716.7(4).

      The trespass statute does not define “a public road or highway.”

However Iowa Code chapter 306, entitled “Establishment, Alteration, and

Vacation of Highways,” offers guidance on the definition of roads and public

road rights-of-way.       See id. § 306.3 (stating listed definitions apply to

chapter 306 and “any chapter of the Code relating to highways”); see also

State v. Sims, 173 N.W.2d 127, 128 (Iowa 1969) (applying in criminal
                                      6

prosecution the predecessor definition of the terms now defined in section

306.3(8)). This statute provides the following definitions:
             7. “Public road right-of-way” means an area of land, the
      right of possession of which is secured or reserved by the state
      or a governmental subdivision for roadway purposes. . . .

            8. “Road” or “street” means the entire width between
      property lines through private property or the designated width
      through public property of every way or place of whatever
      nature if any part of such way or place is open to the use of the
      public, as a matter of right, for purposes of vehicular traffic.
Id. § 306.3(7), (8).   Similarly, although not expressly applicable to the

trespass statute, chapter 321, entitled “Motor Vehicles and Law of the

Road,” contains a definition of “private road.” Id. § 321.1 (stating defined

words have specified meanings “for the purpose of this chapter”). This

provision states:
      “Private road” or “driveway” means every way or place in private
      ownership and used for vehicular travel by the owner and
      those having express or implied permission from the owner but
      not by other persons.
Id. § 321.1(54).

      IV. Discussion.

      The element of the State’s case challenged on appeal is the status of

N.W. 78th Avenue as a private road. We think the evidence, while in some
respects conflicting, was clearly sufficient to support the jury’s finding that

the road was private and not public.

      A. Review of evidence. The lease between the Corps and the Guard

supported the State’s position that the road was owned by the Corps and

leased to the Guard. This document also showed the Guard, not the county

or state, was responsible for the maintenance of that portion of N.W. 78th

Avenue passing through the leased land.         Lt. Col. Pitstick’s testimony

affirmed these facts. Pitstick testified the Guard assumed responsibility for

the road: the Guard filled potholes, cleared snow, removed road kill, and
                                      7

mowed the shoulders. He also testified the Guard has the authority to close

the road, and did so during the 1993 floods. Although the Guard provides

security on the roadway, it has entered into a 28E agreement with the Polk

County sheriff’s office for law enforcement on N.W. 78th Avenue.

      The defendants rely on testimony of Teresa McDermott of the Polk

County auditor’s office, who testified N.W. 78th Avenue is designated on an

aerial map in their office as a “right of way which is the public access or the

easement.” She also testified, however, that N.W. 78th Avenue could be a

private road, and she is aware that some private roads provide public

access, in parks for example. In addition to McDermott’s testimony, there

was evidence that the use of N.W. 78th Avenue was not restricted and this

roadway was used by the public in general.

      We think the record fully supports the jury’s finding. The State’s

evidence showed the road was owned by the Corps, leased, maintained and

controlled by the Guard, and used with the Guard’s implicit permission by

motorists seeking access to Saylorville Lake. See id. § 321.1(54) (defining

“[p]rivate road” as a way “in private ownership and used for vehicular travel

by the owner and those having express or implied permission from the

owner but not by other persons”). The same evidence negates that “the
right of possession” of the road was “secured or reserved by the state or a

governmental subdivision for roadway purposes.”           See id. § 306.3(7)

(defining “[p]ublic road right-of-way” as “an area of land, the right of

possession of which is secured or reserved by the state or a governmental

subdivision for roadway purposes”).

      The defendants claim, however, that the record established the road

in question was a public road by prescription and by dedication. Obviously,

the jury rejected these arguments when it found the defendants guilty.

Therefore, the question on appeal is whether the evidence established as a
                                      8

matter of law that N.W. 78th Avenue was a public roadway through

prescription or dedication, such that the trial court should have granted the

defendants’ motions for judgment of acquittal. See State v. Watkins, 659

N.W.2d 526, 535 (Iowa 2003).

      B. Dedication. “ ‘Dedication’ is ‘the setting aside of land for a public

use.’ ” Sons of the Union Veterans of the Civil War v. Griswold Am. Legion

Post 508, 641 N.W.2d 729, 733 (Iowa 2002) (citation and emphasis omitted).

Dedication requires three elements: “(1) intent to dedicate, (2) dedication,

and (3) acceptance by the public or the party to whom the dedication is

made.” Id. at 734. We think the evidence does not mandate a finding of

these elements as a matter of law.

      The evidence needed to establish dedication “ ‘may not be predicated

on anything short of deliberate, unequivocal, and decisive acts and

declarations of the owner, manifesting a positive and unmistakable

intention to permanently abandon his property to the specific public use.’ ”

Id. (citation omitted). Moreover, “ ‘mere permissive use of a way, no matter

how long continued, will not amount to a dedication.’ ”          Id. (citation

omitted); accord Bradford v. Fultz, 167 Iowa 686, 698, 149 N.W. 925, 929

(1914) (“No length of use of a private road will make it a public highway.”).
In addition, “an intention to dedicate must have existed at the time of the

beginning of the use which is relied upon to show dedication.” Mahaska

State Bank v. Kelly, 520 N.W.2d 329, 331 (Iowa 1994).

      The record is devoid of any evidence that the Guard or the Corps

intended to dedicate the road to the public when the road was first opened

for public use or at any time thereafter. At most, the evidence showed

permissive use by persons wanting access to the lake or a way around the

lake, a fact insufficient to support dedication. Although the defendants cite

McDermott’s testimony and the maps in the Polk County auditor’s office as
                                      9

showing a formal dedication, we think this evidence did not go far enough.

Although the witness and the county map confirmed that the roadway was

used for “public access,” this evidence left unanswered whether that use

was permissive or was the result of the owner’s intent to abandon the road.

Other evidence supplied that answer: the Corps, which owned the property,

expressly relinquished use and control of the property to the Guard, and the

Guard at all times retained control of the roadway, negating any intent to

abandon the road to the public. The record simply does not support a

finding that dedication was established as a matter of law.

      C. Prescription. The defendants contend the public acquired N.W.

78th Avenue by prescription based upon the public’s use of the road for

more than ten years and the owner’s acquiescence in this use.              An

easement by prescription “ ‘is similar to the concept of adverse possession.’

” Brede v. Koop, 706 N.W.2d 824, 828 (Iowa 2005) (citation omitted); see

also 3 Am. Jur. 2d Adverse Possession § 8, at 93-94 (2002) (stating the

principal difference between adverse possession and prescription is the

right acquired: full title to the property and an easement, respectively). It

“is created when a person uses another’s land under a claim of right or

color of title, openly, notoriously, continuously, and hostilely for ten years
or more.” Johnson v. Kaster, 637 N.W.2d 174, 178 (Iowa 2001).

      The defendants’ position that the public obtained a prescriptive

easement in the road is unsound because no right of prescription may be

acquired against the government. See United States v. Osterlund, 505 F.

Supp. 165, 168 (D. Colo. 1981); Sioux City v. Betz, 232 Iowa 84, 85, 4

N.W.2d 872, 873 (1942); Twining v. City of Burlington, 68 Iowa 284, 285, 27

N.W. 243, 243 (1886); 3 Am. Jur. 2d Adverse Possession § 268, at 305-06

(“[T]itle to public lands cannot be acquired by adverse possession as against

the United States, a state, or local governmental bodies, except as may be
                                       10

provided specifically by statute.”     (Footnotes omitted.)).   This rule was

explained many years ago by the United States Supreme Court in a dispute

between the state of California and the federal government over rights to

certain offshore property:
        And even assuming that Government agencies have been
        negligent in failing to recognize or assert the claims of the
        Government at an earlier date, the great interests of the
        Government in this ocean area are not to be forfeited as a
        result. The Government, which holds its interests here as
        elsewhere in trust for all people, is not to be deprived of those
        interests by the ordinary court rules designed particularly for
        private disputes over individually owned pieces of property; and
        officers who have no authority at all to dispose of Government
        property cannot by their conduct cause the Government to lose
        its valuable rights by their acquiescence, laches, or failure to
        act.
United States v. California, 332 U.S. 19, 39-40, 67 S. Ct. 1658, 1669, 91 L.

Ed. 1889, 1900 (1947), superceded on other grounds by statute, Submerged

Lands Act of 1953, ch. 65, 67 Stat. 29, as recognized in James v. State, 950

P.2d. 1130, 1134 (Alaska 1997).

        The lease admitted into evidence stated the road was a “federally

owned roadway.” There was no evidence that any other entity or person

owned the road in question. Therefore, as a matter of law, the defendants
cannot rely on the doctrine of prescription to establish that this federal land

had become a public road owned by the state or county.

        V. Summary.

        The evidence is sufficient to support the jury’s finding that the

defendants trespassed on private land when they stepped into the right-of-

way of N.W. 78th Avenue in front of the STARC Armory. The record also

supports a factual finding that this federally owned roadway is not a public

road.    The public use permitted by the Corps and the Guard did not

establish a dedication of the road to the public, and the public cannot

obtain prescriptive rights to this road because it is owned by the federal
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government. Finding no error in the trial court’s refusal to enter judgments

of acquittal, we affirm.

      AFFIRMED.
