Appeal from the Iowa District Court for Polk County, Mary Pat Gunderson, Judge.
The defendant, Cory Fyler, appeals the judgment and sentence entered upon his conviction of burglary in the third degree.
Mark C. Smith, State Appellate Defender, and Vidhya K. Reddy, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Linda J. Hines, Assistant Attorney General, John P. Sarcone, County Attorney, Jim P. Ward, Assistant County Attorney, and Derek Moran, Legal Student Intern, for appellee.
Considered by Potterfield, P.J., and Mullins and Bower, JJ.
The defendant, Cory Fyler, appeals the judgment and sentence entered upon his conviction of burglary in the third degree. On appeal, he argues the State failed to present sufficient evidence to find him guilty of burglary in the third degree. 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, an unused retirement home in Des Moines, when he noticed Belinda Clark walking around the side of the Abbey. Clark claimed she was on a run. Siebert noticed smudges of ash on her face and a smell of burning garbage. Giving her the benefit of the doubt, Siebert allowed her to continue.
As Siebert walked to the rear of the Abbey, he noticed a man in the entrance of the stairway into the basement. The man was later identified 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 or a driver's license.
Given these facts Siebert 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 reasserted 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 assert 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. He also testified that while no one lived or conducted business in the Abbey, his property management company used the first floor to store building materials and equipment, which he valued at approximately $4000.
The officers arrested Fyler and Clark. The State charged them both with burglary. A jury found Fyler guilty of burglary in the third degree. On appeal, Fyler argues the evidence was insufficient to show he broke into an "occupied structure, ...