Opinion
No. 2-583 / 01-1608
Filed December 11, 2002.
Appeal from the Iowa District Court for Polk County, LINDA R. READE, Judge.
Defendant challenges the sufficiency of the evidence supporting his conviction for third-degree burglary. REVERSED.
Linda Del Gallo, State Appellate Defender, and Dennis D. Hendrickson, Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Thomas S. Tauber, Assistant Attorney General, John P. Sarcone, County Attorney, and Stephanie Cox, Assistant County Attorney, for appellee.
Considered by HECHT, P.J., and VAITHESWARAN and EISENHAUER, JJ.
A farm cooperative has its main plant within the city limits of Bondurant. About a mile away is a field used to store anhydrous ammonia and grain. It is referred to as the "east plant". A jury found Larry Flanders guilty of third-degree burglary for entering the east plant and attempting to steal anyhdrous ammonia. See Iowa Code §§ 713.1, 713.6A (1999). On appeal, Flanders challenges the sufficiency of the evidence supporting his conviction. Our review of this issue is on error. State v. Pace, 602 N.W.2d 764, 768 (Iowa 1999). We will uphold a finding of guilt if it is supported by substantial evidence. Id. Flanders claims the east plant was not an "occupied structure" within the meaning of the burglary statute. See Iowa Code § 713.1. An "occupied structure" is defined as:
Flanders was also found guilty of several drug-related crimes not at issue here.
any building, structure, appurtenances to buildings and structures, land, water or air vehicle, or similar place adapted for overnight accommodation of persons, or occupied by persons for the purpose of carrying on business or other activity therein, or for the storage or safekeeping of anything of value.
Iowa Code § 702.12. The definition has two prongs. Pace, 602 N.W.2d at 769. The first describes the type of place, the second the purpose. Id.
With respect to the first prong, the parties agree that the fighting issue is whether the east plant is an "appurtenance" within the meaning of Iowa Code section 702.12. A thing is an appurtenance if it is connected in use with the principal thing. State v. Baker, 560 N.W.2d 10, 13 (Iowa 1997). A jury reasonably could have found that the east plant is a five-sided, fifteen to sixteen acre parcel about a mile east of the main plant. A farm fence runs along the perimeters of the parcel but does not completely enclose it. A highway and railroad track pass through or near the parcel. The east fence is equipped with a gate and lock. The east plant is used to store anhydrous ammonia, nitrogen, diesel, gasoline, and grain, and there are crops grown on the parcel.
As analyzed in State v. Pace 602 N.W.2d 764 (Iowa 1999), the "east plant" does not fit the definition of occupied structure. It is a farm field with tanks on it for storage of anhydrous ammonia, diesel fuel and gasoline. It is located a mile away from the farm cooperative. There is no building on the property, and it cannot be said to be appurtenant to any building or structure. Driveways, State v. Baker, 560 N.W.2d 10, 13 (Iowa 1997), steps and walkways, Pace, 602 N.W.2d at 770, and fenced enclosures behind a store, State v. Hill, 449 N.W.2d 626, 628 (Iowa 1989), have been found to be appurtenant to a building. We do not believe the legislature intended the burglary statute to extend its reach to a field a mile away from the principal structure.
Even if found to be appurtenant to the buildings at the farm cooperative, there is no suggestion that people occupy the property "with a sense of security or repose similar to that enjoyed in the principal structure." Pace, 602 N.W.2d at 771. It is hardly different from a farm field. Including the "east plant" in the definition of an occupied structure construes the burglary statute so broadly as to threaten constitutional due process prohibitions against vagueness and uncertainty. See id. at 771 ("Statutes must not be viewed so broadly that they threaten the constitutional due process prohibitions against vagueness and uncertainty.").
We therefore conclude the evidence insufficient to support the burglary conviction.
REVERSED.
HECHT, P.J., Concurs; VAITHESWARAN, J., dissents.
I respectfully dissent from the majority's conclusion that there is insufficient evidence to support the burglary conviction. The definition of "occupied structure" has two components. First, it includes "any building, structure, appurtenances to buildings and structures, land, water or air vehicle, or similar place. . . ." Iowa Code § 702.12. Second, it must be "adapted for overnight accommodation of persons, or occupied by persons for the purpose of carrying on business or other activity therein, or for the storage or safekeeping of anything of value." Id.
With respect to the first prong, the east plant is clearly not a "building" or a "land, water or air vehicle." While it may be a "structure" or a "similar place," the parties focus only on whether it is an "appurtenance." "Appurtenance" is broadly defined as something that is "connected in use with the principal thing." State v. Baker, 560 N.W.2d 10, 13 (Iowa 1997).
Although a mile away from the main plant, a jury could have found that the east plant was "connected in use" with the farm cooperative's operations at the main plant. Cooperative employees were at the east plant on a daily basis. They seasonally applied fertilizer to the corn and alfalfa fields located there. They periodically transferred anhydrous ammonia from the "large storage vessels" located on the east plant to mobile units that, in turn, transported the fertilizer to farmers' fields. They used the east plant to store "big bulk tanks" of diesel and gasoline, vessels containing liquid nitrogen, and "bunkers" of grain. According to the cooperative's general manager, all these items were "absolutely" a part of the farm cooperative's business. From this evidence, a jury could have found that the east plant was an "appurtenance." Cf. State v. Hill, 449 N.W.2d 626, 628 (Iowa 1989) (finding fenced enclosure behind an automobile parts store an appurtenance).
As for the second prong, I believe there is sufficient evidence from which a jury could, at a minimum, have found that the east plant was used "for the storage or safekeeping of anything of value." Iowa Code § 702.12. The plant was more than a farm field. In addition to the growing crop, the property housed several distinct structures, all containing items of value. The cooperative's general manager specifically noted that the anhydrous ammonia had been the subject of "numerous occasions for theft," strong evidence that it had value. Cf. State v. Baker, 560 N.W.2d at 14 (noting driveways are normally used for storage and safekeeping of things of value); Hill, 449 N.W.2d at 628 (noting fenced enclosure was used to store car parts "of some value").
I also believe there is sufficient evidence from which a jury could have found that the east plant was "occupied by persons for the purpose of carrying on business or other activity. . . ." Iowa Code § 702.12. It is undisputed that cooperative employees went to the east plant on a daily basis to perform the business functions outlined above. Cf. State v. Pace, 602 N.W.2d 764, 771 (Iowa 1999) (finding no evidence that stoop on which defendants committed act was occupied to carry on some activity). In my view, this fact, together with the fact that the east plant contained numerous items of value, obviates the majority's constitutional concerns. Id. (noting second prong of "occupied structure" definition helps "narrow its parameters.").
I would find sufficient evidence to support the burglary conviction.