Opinion
No. 5-756 / 05-0021
Filed November 9, 2005
Appeal from the Iowa District Court for Sioux County, James D. Scott, Judge.
Defendant appeals from the district court's findings of guilt, challenging the sufficiency of the evidence. JUDGMENT AND SENTENCES VACATED AND REMANDED WITH DIRECTIONS.
Linda Del Gallo, State Appellate Defender, and James G. Tomka, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Thomas S. Tauber, Assistant Attorney General, Melissa O'Rourke, County Attorney, and Coleman McAllister, Assistant County Attorney, for appellee-State.
Considered by Zimmer, P.J., and Miller and Vaitheswaran, JJ.
A house caught fire and sustained substantial damage. The district court found the ex-husband of the home's occupant guilty of several crimes associated with the fire. On appeal, the ex-husband challenges the sufficiency of the evidence supporting the court's findings of guilt. Although we find the evidence sufficient, we vacate and remand to correct an inconsistency in the court's judgment and sentences.
I. Background Facts and Proceedings
A finder of fact could have found the following facts. Luis Perez-Perez was married to Sarah Buss for two years. The marriage ended in divorce. Following the divorce, Perez-Perez forced Buss to continue living with him. Eventually, Buss's parents purchased a home for her near their own home.
After Buss moved into the home, Perez-Perez continued to call her with statements such as, "[Y]ou're mine. You can't leave me." He also followed her home from work and entered her house without her permission. Fearing for her safety, Buss began spending most nights at her parents' house. On the few occasions when she stayed at her house, her brother stayed with her.
Buss later discovered some of Perez-Perez's belongings inside her house and learned that he had a key to her home. She changed the locks and reported the unauthorized entry to the police. They instructed her to place Perez-Perez's belongings in a bag and to put the bag where he could retrieve it. Buss placed a necklace, cross, and several rings belonging to Perez-Perez in her jewelry box. She placed the remaining items in a black plastic trash bag, and put the bag in her garage, which was not attached to the house and was never locked. Also in the garage was a red plastic can containing gasoline.
When Perez-Perez next called Buss, she told him his belongings were in the garage and he should retrieve them. He responded, "[D]on't put my stuff out . . . I live there too, you're my girlfriend." The black trash bag remained in Buss's garage.
Two or three days before the fire, Perez-Perez called Buss on a stolen cell phone, while driving a stolen car. Perez-Perez asked her who was there with her and why her lights were on. He threatened to kill her if she hung up the phone and made four more similar threats during the call. Buss testified that the phone call frightened and annoyed her.
The day before the fire, Buss found a bracelet and another ring belonging to Perez-Perez in her jewelry box inside her home. She had not placed them there.
On the evening of the fire, Buss left her home to have dinner with her parents. No one else was in the house and the front and back doors were locked. The black trash bag containing Perez-Perez's belongings was still in Buss's garage, as was the gasoline can.
Later that evening, Buss's mother learned that a house caught fire on the street where Buss lived. She and Buss went to the location and discovered it was Buss's house. Buss entered the garage and noticed that the black trash bag containing Perez-Perez's belongings was gone. Buss's red gas can was also not there and was later found under the kitchen sink.
Firefighters at the scene discovered accelerant in three locations within the house. Authorities also found Perez-Perez's prints on the outside of a small window. They determined the fire was intentionally set.
Following the fire, Buss went to Arizona. While she was gone, Perez-Perez called Buss four times and left two messages. In one message, he told Buss that he was in Tucson and was going to come to Buss's grandmother's house to get her. In another message, Defendant said he was going to kill Buss and she "couldn't make him go to jail."
Several days after the fire, police found the stolen car Perez-Perez was driving when he made the first threatening phone call to Buss. They arrested him and found in his possession items that Buss had seen in her jewelry box on the day before the fire. They later searched the van of his roommate and found the black trash bag that had previously been in Buss's garage and another bag that had been in Buss's kitchen.
The house sustained substantial damage as a result of the fire. Buss's mother received $75,100 in insurance proceeds to cover the damage.
The State charged Luis Perez-Perez with first-degree harassment, second-degree arson, first-degree criminal mischief, and first-degree burglary. Iowa Code §§ 708.7(1)(a)(1), 708.7(2), 712.1, 712.3, 716.1, 716.3, 713.1, 713.3(1)(a) (2003). Following a bench trial, the district court found Perez-Perez guilty of second-degree rather than first-degree burglary and found him guilty as charged on the remaining counts. The court subsequently amended the decision to enter a finding of guilt on first-degree burglary, as charged in the trial information. The court sentenced him in accordance with this amended decision.
Perez-Perez appealed, raising a challenge to the sufficiency of the evidence. Our review is for correction of errors of law. State v. Thomas, 561 N.W.2d 37, 39 (Iowa 1997). We will uphold a finding of guilt if it is supported by substantial evidence. Id. II. First-Degree Harassment
The district court identified the elements of first-degree harassment as follows:
(1) On or about March 21, 2004, Defendant communicated with Sarah Buss by telephone, without legitimate purpose, in a manner likely to cause her annoyance or harm.
(2) Defendant communicated a threat to commit the offense of Murder in the First Degree.
(3) Defendant did so with the specific intent to intimidate, annoy or alarm Sarah Buss.
Without repeating the facts set forth above, we conclude there was more than substantial evidence to support the court's finding of guilt on the harassment charge.
III. Second-Degree Arson
The district court described the elements of second-degree arson as follows:
(1) On or about March 24, 2004, Defendant caused a fire in or near property, or placed any burning or combustible material or any incendiary or explosive device or material in or near any property.
(2) Defendant intended to destroy or damage the property or knew the property would probably be destroyed or damaged.
(3) The property was a building, a structure or real property of any kind.
The facts set forth above amount to substantial evidence to establish these elements of second-degree arson.
IV. First-Degree Criminal Mischief
The district court set forth the elements of this crime as follows:
(1) On or about the 24th day of March, 2004, Defendant damaged, altered or destroyed a single-family home belonging to Sarah Buss.
(2) Defendant acted with the specific intent to damage, alter or destroy the property.
(3) When Defendant damaged, altered or destroyed the property, he did not have the right to do so.
(4) The cost of repair or replacement of the property is more than $10,000.
Again, there is substantial evidence to support Perez-Perez's conviction for first-degree criminal mischief
V. First-Degree Burglary, Second-Degree Burglary
As noted, the State charged Perez-Perez with first-degree burglary. This crime requires proof that "one or more persons" were present during the burglary. Iowa Code § 713.3(1) (2003). The State concedes it did not prove that anyone was in Buss's home at the time of the burglary and, therefore, also concedes that there was insufficient evidence to support a finding of guilt on the first-degree burglary charge.
The State suggests Perez-Perez may have waived error on this question by failing to argue it in his appellate brief. In light of Perez-Perez's broad challenge to the sufficiency of the evidence on all counts, we decline to find that error was waived.
Our analysis does not end here because the district court, in its original ruling, found Perez-Perez guilty of the lesser-included offense of second-degree burglary. This crime does not require the presence of a person inside the place being burglarized. See Iowa Code § 713.5(1). The State did not charge Perez-Perez with this crime, but it is established that "[w]here a public offense carries with it certain lesser included offenses, the latter should not be charged, and it is sufficient to charge that the accused committed the major offense." Iowa R. Crim. P. 2.6(1). Therefore, the district court acted appropriately in considering this crime. See State v. Taggart, 430 N.W.2d 423, 426 (Iowa 1988) (holding district court not divested of jurisdiction even if lesser included offense is not specifically charged in trial information).
With respect to second-degree burglary, the district court required proof of the following elements:
(1) On or about March 24, 2004, Defendant broke into Sarah Buss's residence.
(2) The residence was an occupied structure.
(3) Defendant did not have permission or authority to break into Sarah Buss's residence.
(4) Defendant did so with the specific intent to commit arson or a theft.
(5) During the incident, Defendant had possession of an explosive or incendiary device or material.
The district court ably summarized the evidence supporting these elements, much of which we have set forth above. We conclude the State presented substantial evidence to support a finding of guilt on second-degree burglary.
VI. Disposition
Perez-Perez did not object to his sentence for first-degree burglary rather than second-degree burglary. This omission is not fatal. To the extent the sentence was based on a conviction that was unsupported by the evidence, the sentence was illegal and void. See State v. Ortiz, 618 N.W.2d 556, 561 (Iowa 2000). Therefore, we may modify it even in the absence of an objection. Id.
The next question is how to modify the judgment and sentence. The Iowa Supreme Court addressed this question in State v. Morris, 677 N.W.2d 787, 789 (Iowa 2004). There, as here, the defendant raised a sufficiency-of-the-evidence challenge. The Iowa Supreme Court found the evidence insufficient to support the jury's guilty verdict for second-degree theft but noted that the lesser included offense of operating a motor vehicle without the owner's consent was also submitted to the jury. Id. at 788. The court held that, by finding the defendant guilty of the greater offense, the jury "necessarily found that the State had established all of the elements of the lesser included offense." Id. The court continued, "[i]n such instances, we have approved entering an amended judgment of conviction with respect to the lesser-included offense." Id. at 789.
Based on Morris, we vacate the judgment for first-degree burglary and remand with directions to enter a judgment of conviction for second-degree burglary. We also vacate the sentence for first-degree burglary and remand with directions to re-sentence Perez-Perez for second-degree burglary.