Appeal from the Iowa District Court for Polk County, Mary Pat Gunderson, Judge.
The defendant, Belinda Clark, appeals the judgment and sentence entered upon her conviction of attempted burglary in the third degree.
Michael J. Piper of Dickey & Campbell Law Firm, P.L.C., Des Moines, for appellant.
Thomas J. Miller, Attorney General, Linda J. Hines, Assistant County Attorney, John Sarcone, County Attorney, Jim Ward, Assistant County Attorney, and Derek Moran, Student Legal Intern, for appellee.
Considered by Potterfield, P.J., and Mullins and Bower, JJ.
The defendant, Belinda Clark, appeals the judgment and sentence entered upon her conviction of attempted burglary in the third degree. On appeal, she asserts: (1) the district court abused its discretion by denying her motion for new trial for prosecutorial misconduct, (2) there was not sufficient evidence to find her guilty beyond a reasonable doubt of attempted burglary in the third degree, and (3) her counsel provided ineffective assistance. We affirm.
I. BACKGROUND FACTS AND PROCEEDINGS.
In the early morning hours of March 11, 2012, Des Moines Police Officer Martin Seibert was on patrol near the Old Abbey, a disused retirement home in Des Moines, where he encountered Belinda Clark walking around the side of the Abbey. The officer asked Clark what she was doing. Clark claimed she was out running. She was wearing a hooded sweatshirt and was covered in soot and sweating. Siebert detected a "strong odor of burnt garbage." Giving her "the benefit of the doubt, " he allowed her to continue.
As Siebert reached the rear of the Abbey, he noticed a man walking down the stairway into the basement. The man identified himself as Cory Fyler. Fyler wore dark clothing, his face was covered in ash, and he smelled like burnt garbage. He told Siebert that "Kevin" had given him permission to remove copper and other metals from the Abbey. Siebert observed metal-working tools, and a tub and canvas bag filled with various metals, which he estimated weighed around 100 pounds. Fyler did not have a car located at the scene.
Given these facts, the officer called other patrol units and told them to look for another suspect—Clark. Officer Curtis found Clark sitting in her Jeep next to a car wash, directly south of the Abbey. After questioning, Clark again stated that she had been out for a run. Clark now wore a gray sweatshirt and her face was clean. Officer Curtis smelled smoke on Clark that he asserts was identical to the smoke smell from the Abbey.
The officers contacted the Abbey property managers David and Patricia Rogers to determine if they had given anyone permission to remove metal from the Abbey. The Rogers told the officers that no one had permission to remove metal from the basement. David Rogers later testified that there had been a fire in the basement of the Abbey, and that the basement was covered in soot and smelled like burning garbage.
The officers arrested Fyler and Clark. The State charged them both with burglary. A jury found Clark guilty of the lesser-included offense of attempted burglary in the third degree. Clark then filed a motion for new trial that alleged prosecutorial misconduct. The court denied the motion for new trial and sentenced Clark to not more than two years in prison. On appeal, Clark ...