                    IN THE COURT OF APPEALS OF IOWA

                                   No. 13-1638
                            Filed September 17, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

WANDA CARRUTHERS,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Des Moines County, Michael G.

Dieterich, District Associate Judge.



      Wanda Carruthers appeals from judgment and sentence imposed upon

her conviction of theft in the third degree in violation of Iowa Code sections

714.1(1) and .2(3) (2013). CONVICTION AFFIRMED, SENTENCE VACATED,

AND REMANDED FOR RESENTENCING.



      Mark C. Smith, State Appellate Defender, and Theresa R. Wilson,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Heather A. Mapes, Assistant Attorney

General, Patrick C. Johnson, County Attorney, and Todd Chelf, Amy Beavers,

and Justin Stonerook, Assistant County Attorneys, for appellee.



      Considered by Danilson, C.J., and Vogel and Bower, JJ.
                                        2


DANILSON, C.J.

      Wanda Carruthers appeals from judgment and sentence imposed upon

her conviction of theft in the third degree in violation of Iowa Code sections

714.1(1) and .2(3) (2013).     Carruthers contends the court failed to provide

adequate reasons for the sentence imposed, failed to consider her ability to

repay attorney fees, and imposed a sentence that is not supported by evidence

of an intent to permanently deprive the owner of the property.        We find the

evidence sufficient to support the jury’s determination that Carruthers intended to

permanently deprive the owner of the cell phone. We remand, however, for the

court to provide reasons for the sentence imposed.

I. Background Facts.

      At about 9:00 a.m. on February 4, 2013, Elizabeth Richers was playing

slot machines at Catfish Bend Casino and left her cell phone on the machine

when she moved to another. Carruthers later saw the cell phone, picked it up,

turned it off, and placed it in her pocket. When Richers went looking for her cell

phone and returned to the area where she thought she might have left it,

surveillance cameras show Carruthers was there at the machine.

      Richers checked with the casino’s lost and found without success. She

left the casino and was going to report the missing phone to her carrier, but

remembered the casino might be able to assist her by looking at surveillance

footage.   Richers returned to the casino and spoke with security personnel.

Special Agent Robert Bixler of the Iowa Department of Criminal Investigations

reviewed the security footage, which showed Carruthers picking up the phone,
                                            3


light shining from the phone as she held it, and Carruthers placing the phone in

her pocket.

           Agent Bixler was able to get Carruthers’ name and address from player

services.      He went to Carruthers’ home and spoke with one of Carruthers’

daughters, who told him Carruthers was picking up another daughter from the

library.     Agent Bixler advised Carruthers’ daughter he was investigating an

incident in the casino earlier that morning and requested she have Carruthers

call him when she returned. Less than five minutes later, Agent Bixler received a

call from Carruthers asking him to meet at her home.               When he did so,

Carruthers came out of her home and handed him the missing cell phone.

           At trial, Carruthers testified she did not intend to keep the cell phone and

she had intended to turn it in at the local police station. When asked on cross-

examination why she had turned off the cell phone she picked up, she said it was

“habit.”     She testified she did not notice Richers searching around the slot

machine Carruthers was playing. When asked why she did not turn in the phone

to the casino’s lost and found or to a security guard, she stated she just wanted

to keep playing the slot machines.

           The district court denied Carruthers’ motions for judgment of acquittal.

Carruthers was found guilty, and the court sentenced Carruthers to ninety days in

jail with all but five days suspended.          The court stated no reasons for the

sentence imposed. Carruthers was ordered to pay $480 in attorney fees in $50

monthly installments.

           Carruthers appeals.
                                          4


II. Sentencing Issues.

        We review a district court’s sentence for the correction of legal error.

State v. Rodriguez, 804 N.W.2d 844, 848 (Iowa 2011). Iowa Rule of Criminal

Procedure 2.23(3)(d) requires a sentencing judge to state the reasons for a

particular sentence on the record.      Although the reasons do not need to be

detailed, they must be sufficient to allow appellate review of the discretionary

action. State v. Jacobs, 607 N.W.2d 679, 690 (Iowa 2000). Here, no reasons

were given for the sentence imposed, and the State concedes resentencing is

required. We therefore vacate the sentence and remand to the district court for

resentencing.

        As for Carruthers’ claim that the court did not adequately consider her

ability to pay attorney fees,1 the issue can be addressed on remand at the time of

resentencing.

III. Sufficiency of the Evidence.

        “We review sufficiency-of-the-evidence claims for correction of errors at

law.”   State v. Showens, 845 N.W.2d 436, 439 (Iowa 2014).              We view the

evidence in the light most favorable to the State, including all reasonable

inferences fairly drawn from the evidence. Id.

        We will consider all the evidence presented, not just the inculpatory
        evidence. 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. “Inherent in
        our standard of review of jury verdicts in criminal cases is the
        recognition that the jury [is] free to reject certain evidence, and
        credit other evidence.”


1
  We make no determination as to Carruthers’ reasonable ability to pay the installments
imposed. See State v. Van Hoff, 415 N.W.2d 647, 648-49 (Iowa 1987).
                                         5

State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012) (citations omitted).

       A person commits theft when the person “[t]akes possession or control of

the property of another, or property in the possession of another, with the intent

to deprive the other thereof.” Iowa Code § 714.1. The intent to deprive “requires

more than a temporary dispossessing of another’s property.” State v. Berger,

438 N.W.2d 29, 31 (Iowa Ct. App. 1989). Our supreme court has noted that an

essential element of theft is the intent to permanently deprive the owner of her

property:

       Because proof that the defendant acted with the specific purpose of
       depriving the owner of his property requires a determination of what
       the defendant was thinking when an act was done, it is seldom
       capable of being established with direct evidence. Therefore, the
       facts and circumstances surrounding the act, as well as any
       reasonable inferences to be drawn from those facts and
       circumstances, may be relied upon to ascertain the defendant’s
       intent.

State v. Schminkey, 597 N.W.2d 785, 789 (Iowa 1999).

       A reasonable jury viewing the trial evidence and all reasonable inferences

arising therefrom could conclude Carruthers intended to permanently deprive the

owner of the cell phone.     Carruthers discovered a cell phone resting on the

screen of a slot machine. She picked it up, turned it off, and placed it in her

pocket. The jury could reasonably reject her explanation about why she turned

the phone off (“habit”) in light of her testimony she provided full-time care for her

epileptic and learning-disabled daughter, which would presumably require that

she remain reachable at all times. When the owner came back to the machine

looking for her cell phone, Carruthers was there and said nothing. Carruthers left

the casino with the cell phone. The jury was free to disbelieve Carruthers’ claim
                                        6


that she intended to turn the cell phone in to local police when she did not turn

the phone in to the casino’s lost and found or security personnel.

      We affirm the conviction, but vacate the sentence.

      CONVICTION AFFIRMED, SENTENCE VACATED, AND REMANDED

FOR RESENTENCING.
