State of Iowa v. Brice Shrimpton ( 2022 )

IN THE COURT OF APPEALS OF IOWA
No. 21-0516
Filed April 13, 2022
STATE OF IOWA,
Plaintiff-Appellee,
vs.
BRICE SHRIMPTON,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Carroll County, Adria Kester (trial)
and Gina Badding (sentencing), Judges.
Brice Shrimpton appeals from his conviction of second-degree burglary
claiming insufficient evidence and that the court considered an improper factor in
sentencing him. AFFIRMED.
Martha J. Lucey, State Appellate Defender, and Melinda J. Nye, Assistant
Appellate Defender, and Lucee Laursen, Student Intern, for appellant.
Thomas J. Miller, Attorney General, and Zachary Miller, Assistant Attorney
General, for appellee.
Considered by Bower, C.J., Schumacher, J., and Doyle, S.J.* Badding, J.,
takes no part.
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2022).
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DOYLE, Senior Judge.
Brice Shrimpton appeals his conviction and sentence after a jury found him
guilty of second-degree burglary. On appeal, Shrimpton argues the State failed to
present sufficient evidence that he had the specific intent to commit an assault
when he kicked in the door to his girlfriend’s home. He also argues the court
considered an improper factor in sentencing him. Finding sufficient evidence to
support the verdict and no error in sentencing, we affirm the district court.
In December 2020, Shrimpton and Stevie Gaines were in a relationship and
living together. She was about two to two-and-one-half months pregnant with their
child. On December 11, Gaines obtained a protective order against Shrimpton and
was given exclusive possession of the rental house they were sharing. Shrimpton
was served with the order on the same day but did not leave the house. The next
day a police officer stopped by and told Shrimpton he needed to comply with the
order and leave the home. Shrimpton testified the police officer and Gaines agreed
that he could keep his clothes in the backyard shed. He stored his stuff in the shed
and left the premises.
At about 9:00 p.m. on December 13, Shrimpton showed up at the house to
get some work clothes. Gaines was in the house with a friend, Nicholas Pickering.
She had called Pickering to come over because she was scared. Shrimpton
headed towards the shed and claims that on his way past the house he observed
Pickering in the basement bedroom “laying in my bed wearing my clothes, actually,
with a meth pipe and a torch next to him.” Shrimpton told Gaines he wanted
Pickering gone. He told Pickering through a broken basement window to “get the
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fuck out of my house now.” Shrimpton went to work and was “pissed off the entire
time.”
During the early morning hours of December 14, after finishing his work
shift, Shrimpton returned to the home to get a change of clothes. Shrimpton’s
version of the events goes like this: He went to the back door, looked down the
stairway, and observed Pickering’s foot. Finding the door locked, he went to a
basement window and observed Pickering and Gaines in bed smoking meth. He
broke out two basement windows and told Pickering, “Get your drugs and get the
fuck out of my house.” Shrimpton returned to the back door and kicked it in.
Pickering was halfway up the stairs when Shrimpton yelled, “I even opened the
door for you, now get the fuck out.” By this time, police were approaching the
house, and Shrimpton took off.
Gaines gave a different version of events. She claims that when Shrimpton
started breaking the basement windows, she ran upstairs, hid in a bedroom, and
called police. Meanwhile, Shrimpton broke through the back door and entered the
house. Gaines heard Shrimpton in the living room or dining room, outside the
bedroom door. She heard Shrimpton threaten Pickering’s life—“Are you ready to
die, motherfucker?” By this time, police arrived on the scene. Gaines denied that
she or Pickering were using drugs.
Pickering’s version is substantially similar to that of Gaines. Pickering was
awakened by the sound of breaking glass, went upstairs, and saw Shrimpton at
the front door. Pickering went to unlock the front door, but Shrimpton went to the
back door and kicked it in. When that happened, Pickering entered a first-floor
bedroom with Gaines and her two children. He then went out into the living
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room/dining room area and met Shrimpton. They were about ten feet apart when
Shrimpton said, “Are you ready to die, motherfucker?” Pickering said it looked like
Shrimpton had “something in his hand,” but he did not identify it as a gun, knife,
club, or crowbar. He felt threatened although Shrimpton never “came at him.”
Shrimpton then left as police were arriving. Pickering also denied any drug use.
The State charged Shrimpton with committing second-degree burglary in
violation of Iowa Code sections 713.1 and 713.5 (2019). A jury found him guilty
as charged. The district court sentenced Shrimpton to prison for a period not to
exceed ten years. Shrimpton appeals, claiming there is insufficient evidence to
support the conviction because of lack of evidence about his intent to commit an
assault. He also claims the court considered an improper factor in sentencing him.
The State argues Shrimpton failed to preserve error on his claim of
insufficient evidence because he failed to challenge the evidence regarding his
intent to commit assault when moving for judgment of acquittal and the district
court never addressed the issue in denying the motion. Whether the motion was
sufficient under prior jurisprudence matters not. Now, “[a] defendant’s trial and the
imposition of sentence following a guilty verdict are sufficient to preserve error with
respect to any challenge to the sufficiency of the evidence raised on direct appeal.”
State v. Crawford, ___ N.W.2d ___, ___, 2022 WL 815299, at *9 (Iowa 2022). So
we have the authority to review Shrimpton’s challenge to the sufficiency of the
evidence.
“Sufficiency-of-evidence claims are reviewed for correction of errors at law,
and we will uphold a verdict if substantial evidence supports it.” State v. Ramirez,
895 N.W.2d 884, 890 (Iowa 2017). “Evidence is substantial if, when viewed in the
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light most favorable to the State, it can convince a rational jury that the defendant
is guilty beyond a reasonable doubt.” State v. Wickes, 910 N.W.2d 554, 563 (Iowa
2018) (internal quotation marks and citation omitted). All evidence is considered,
not just the evidence supporting the verdict. State v. Huser, 894 N.W.2d 472, 490
(Iowa 2017). “Evidence is not insubstantial merely because we may draw different
conclusions from it; the ultimate question is whether it supports the finding actually
made, not whether the evidence would support a different finding.” Brokaw v.
Winfield-Mt. Union Cmty. Sch. Dist., 788 N.W.2d 386, 393 (Iowa 2010) (quoting
Raper v. State, 688 N.W.2d 29, 36 (Iowa 2004)). “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.” See State v. Sanford, 814
N.W.2d 611, 615 (Iowa 2012) (cleaned up). In considering a sufficiency-of-the-
evidence challenge, “[i]t is not the province of the court . . . to resolve conflicts in
the evidence, to pass upon the credibility of witnesses, to determine the plausibility
of explanations, or to weigh the evidence; such matters are for the [factfinder].”
State v. Musser, 721 N.W.2d 758, 761 (Iowa 2006) (quoting State v. Williams, 695
N.W.2d 23, 28 (Iowa 2005)).
The State bears the burden of proving every element of a charged offense.
State v. Armstrong, 787 N.W.2d 472, 475 (Iowa Ct. App. 2010). Shrimpton does
not challenge the marshalling instructions employed at trial for the charged crime.
Thus, the instructions serve as the law of the case for reviewing the sufficiency of
the evidence. See State v. Banes, 910 N.W.2d 634, 639 (Iowa Ct. App. 2018).
The jury was instructed the State needed to prove that Shrimpton broke or entered
“into a residence,” that “was an occupied structure,” without permission, that “was
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not open to the public,” “with the specific intent to commit an assault,” and while
someone was present. Shrimpton challenges only the intent element, arguing the
State failed to establish he had specific intent to commit an assault.
“Specific intent is seldom capable of direct proof.” State v. Walker, 574
N.W.2d 280, 289 (Iowa 1998). Intent may be established by circumstantial
evidence. See State v. Casady, 491 N.W.2d, 782, 787 (Iowa 1992) (stating intent
may be established by circumstantial evidence and by inferences reasonably
drawn from the conduct of the defendant and all attendant circumstances in the
light of human behavior and experience).
We also recognize the jury was free to believe or disbelieve the testimony
of the witnesses and to give as much weight to the evidence as, in its judgment,
such evidence should receive. State v. Thornton, 498 N.W.2d 670, 673 (Iowa
1993). The very function of the jury is to sort out the evidence and place credibility
where it belongs. Id.According to Gaines, when Shrimpton showed up at the house at around
9:00 p.m. on December 13, Shrimpton told her that he would be back “if I didn’t
have my friend out of the house. He came around, threatened him through the
window, and then by the time the police had gotten there, he was gone.” Shrimpton
confirmed that he spoke to Pickering through the broken basement window, telling
Pickering, “Hey, you need to grab your drugs and you need to get the fuck out of
my house now.” Shrimpton then went to work “pissed off the entire time.”
Pickering testified that although he did not hear the remark, Shrimpton told Gaines
“that he was going to get a gun and shoot me and he’ll be back.”
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When Shrimpton returned to the home in the early morning hours of
December 14, he broke out basement windows and told Pickering “Get your drugs
and get the fuck out of my house. I already told you earlier tonight. Now, get the
fuck out.” He then kicked in the back door and told Pickering, “There you go,
motherfucker, I opened the door for you, now get the fuck out.” Although
Shrimpton denies entry to the home, he admitted that “if I would have entered,
there would have been contact.” Both Gaines and Pickering testified Shrimpton
entered the house and confronted Pickering saying, “Are you ready to die,
motherfucker?” Viewing the evidence in a light most favorable to the State and the
verdict, as we must, we find the evidence was sufficient to convince a rational jury
that Shrimpton had the specific intent to commit an assault when he broke into the
home.
Shrimpton claims the court considered an improper factor when imposing
his sentence. He asks us to vacate his sentence and remand for a new sentencing
hearing. In explaining its sentencing decision, the sentencing court stated:
I’ve considered all the sentencing options provided for in Chapter 901
and 907 of the Iowa Code. My judgment relative to sentence today
is based on that which I believe will provide the maximum opportunity
for your rehabilitation, while at the same time protecting the
community from further offenses by you or others similarly situated
to you. In selecting this sentence, I’ve considered your age, your
education, your prior criminal history, including the fact that this
offense was committed while you were on probation already. I have
considered your employment, your family circumstances, the nature
of the offense committed and the harm to the victims, the facts upon
which the charge was based, the use of force in the commission of
the offense, the need to protect the community, the State’s
recommendation, as well as your attorneys recommendation. The
recommendations of the pre-sentence investigation. I’ve also
considered your statements here today, particularly the lack of
remorse that you’ve expressed and the lack of responsibility for your
actions, not just in this case but in the prior criminal convictions
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you’ve had. I’ve considered your character, propensities, needs and
potential for rehabilitation, the need for what I see that is structure in
your life. I’ve considered the need to deter you and others similarly
situated to you from committing offenses of this nature. I’ve
considered your substance abuse history and other permissible
factors supported by the record. I’ve not considered any uncharged
crimes or acts of violence or pending criminal charges that may have
been referred to.
(Emphasis added.) Shrimpton focuses on the emphasized text, arguing “the
court’s reliance on Shrimpton’s perceived lack of remorse for his prior offenses is
not a proper consideration for a sentencing court.”
We review a sentence imposed in a criminal case for
correction of errors at law. We afford sentencing judges a significant
amount of latitude because of the discretionary nature of judging and
the source of the respect afforded by the appellate process. When
the sentencing decision falls within the statutory limits, it is cloaked
with a strong presumption in its favor. Nevertheless, resentencing of
the defendant is necessary if the sentencing court used an improper
consideration, even if it was merely a secondary consideration.
State v. Fetner, 959 N.W.2d 129, 133-34 (Iowa 2021) (cleaned up). And we do
not speculate about how much weight the court gave to the improper factor as
there is no way to determine what sentence would have been ordered without
consideration of the improper factor. State v. Carrillo, 597 N.W.2d 497, 501 (Iowa
1999).
“[A] defendant’s lack of remorse is highly pertinent to evaluating his need
for rehabilitation and his likelihood of reoffending.” State v. Knight, 701 N.W.2d
83, 88 (Iowa 2005). So a sentencing court may consider a defendant’s lack of
remorse in choosing a sentence that will provide for the defendant’s rehabilitation
and protect the public from further offenses by the defendant. Id. at 89. Shrimpton
recognizes that but contends lack of remorse for his prior offenses is not a proper
consideration for a sentencing court. He cites no authority for the proposition.
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Appellants are required to cite authority supporting arguments on appeal, and
failure to do so may result in waiver of an issue. Iowa R. App. P. 6.903(2)(g)(3).
In any event, Shrimpton asserts “the sentencing court in this case did not have
access to the information necessary to determine whether Shrimpton’s remorse or
acceptance of responsibility was appropriate or sufficient, and its consideration of
Shrimpton’s lack of remorse was improper.” Not so.
To be sure, the absence of facts to support a factor on which a court states
it relied in its sentencing decision renders such factor improper and constitutes an
abuse of discretion. See, e.g., Formaro, 638 N.W.2d at 725-26; State v. Floyd,
466 N.W.2d 919, 924–25 (Iowa Ct. App. 1990). That is not the case here. As
Shrimpton answered questions about his criminal history during the sentencing
hearing—when his memory did not fail him—he justified his behavior with many
excuses suggesting he was not at fault or culpable. A reasonable person could
have concluded a lack of remorse on Shrimpton’s part for prior offenses. The
sentencing court’s comment about lack of remorse for prior offenses responded to
Shrimpton’s statements made at the hearing. The court’s consideration of
Shrimpton’s lack of remorse for prior offenses is not grounds for vacation of the
sentence.
AFFIRMED.