State of Iowa v. Ler He Gay

IN THE COURT OF APPEALS OF IOWA

No. 19-1354
Filed October 20, 2021

STATE OF IOWA,
Plaintiff-Appellee,

vs.

LER HE GAY,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Paul Huscher, Judge.

Ler He Gay appeals after a jury found him guilty of first-degree burglary,

going armed with a concealed weapon, and fourth-degree theft. CONVICTIONS

AFFIRMED, SENTENCES VACATED IN PART, AND REMANDED FOR

RESENTENCING.

Martha J. Lucey, State Appellate Defender, and Shellie L. Knipfer, Assistant

Appellate Defender, 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.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2021).
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DOYLE, Senior Judge.

Ler He Gay appeals his convictions and sentences after a jury found him

guilty of first-degree burglary, going armed with a concealed weapon, and fourth-

degree theft. He challenges the sufficiency of the evidence supporting his burglary

and theft convictions and argues the district court abused its sentencing discretion.

He also alleges ineffective assistance of trial counsel.

I. Background Facts and Proceedings.

Emily Freedman returned home to find several strangers in the attached

garage of the home she owns with her husband, Levi Freedman. The group fled

when they noticed her vehicle approaching on the driveway leading to the garage.

Emily chased them until they disappeared into the woods behind the home. She

later identified Gay as one of the group. A Porsche was parked in the garage, and

its key was kept in a cup holder inside the vehicle. After the intruders left, Levi

discovered that the Porsche key and a bicycle were missing from the garage.

Gay was still in the vicinity of the home when he was stopped by law

enforcement a short time later. During the search of his person, an officer found

a nine-millimeter pistol and holster in the waistband of Gay’s pants and a loaded

magazine in his pocket. The State charged Gay with first-degree burglary,

trafficking in stolen weapons, carrying weapons, and two counts of third-degree

theft. The trafficking count and one of the theft counts were severed, and the

remaining theft count was amended to fourth-degree theft.

After trial, a jury found Gay guilty of first-degree burglary, going armed with

a concealed weapon, and fourth-degree theft. The district court sentenced Gay to

a term of twenty-five years in prison with a mandatory minimum sentence of five
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years for burglary. It also sentenced Gay to a two-year term of imprisonment for

carrying a concealed weapon and a one-year term for theft and ordered all three

sentences to run concurrently. Gay appeals.

II. Sufficiency of the Evidence.

We first consider Gay’s challenges to the evidence supporting his burglary

and theft convictions. We review claims of insufficient evidence for correction of

errors at law to determine whether substantial evidence supports the conviction.

See State v. Buman, 955 N.W.2d 215, 219 (Iowa 2021). Substantial evidence is

evidence that would convince a jury that the defendant is guilty beyond a

reasonable doubt. See id. We view the evidence, and all reasonable inferences

one can make from it, in the light most favorable to the State. See id.

A. Burglary.

The district court instructed the jury that to find Gay guilty of first-degree

burglary, the State had to prove all of the following:

1. On or about September 12, 2018, the defendant, Ler He
Gay, entered Emily and Levi Freedman’s residence.
2. Ler He Gay entered the residence with the specific intent to
commit a theft.
3. Emily and Levi Freedman’s residence was an occupied
structure as defined in Instruction No. 14.
4. One or more persons were present in the occupied
structure.
5. Ler He Gay did not have permission or authority to enter
Emily and Levi Freedman’s residence.
6. Emily and Levi Freedman’s residence was not open to the
public.
7. During the incident Ler He Gay possessed a dangerous
weapon.

Gay does not contest that the garage is a building that contains valuable things or

challenge the homeowner’s identification of him as one of the group she found in
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the garage without permission. He only disputes the evidence showing he had the

specific intent to commit a theft when he entered the garage. In support of his

argument, he notes that he was not found in possession of any burglary tools or

property that belonged to the homeowners.

Because direct evidence of a defendant’s specific intent is rare, we rely on

circumstantial evidence and the reasonable inferences drawn from it to deduce the

defendant’s specific intent. See State v. Ernst, 954 N.W.2d 50, 55 (Iowa 2021).

“The requirement of proof beyond a reasonable doubt is satisfied if it is more likely

than not that the inference of intent is true.” Id. at 57 (quoting State v. Finnel, 515

N.W.2d 41, 42 (Iowa 1994)). One can reasonably infer an intent to commit theft

“from the evidence of surreptitious entry and other circumstances.” Id. at 55

(quoting State v. Sangster, 299 N.W.2d 661, 663 (Iowa 1980)).

Viewing the evidence in the light most favorable to the State, we conclude

a reasonable juror could infer from the circumstantial evidence that Gay had the

specific intent to commit a theft when he entered the garage. The State proved

that Gay entered the garage, which contained things of value. “An intent to commit

theft may be inferred from an actual breaking and entering of a building which

contains things of value.” State v. Oetken, 613 N.W.2d 679, 686 (Iowa 2000).

Although Gay was not in possession of any of the homeowners’ items when he

was stopped, the Porsche key missing from the garage was found in the

possession of one of his cohorts. The jury could also infer an intent to commit theft

based on the evidence that Gay and the others fled the garage when they noticed

a vehicle approaching it. Around the same time that the group disappeared into

the woods behind the home, a neighbor heard “this big crashing noise” and saw
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four individuals “running in a row, very intensely and quickly, like very fast” through

the woods. The neighbor watched as they slowed to a stop and turned to look

back from where they had come before doing a celebratory dance. The jury could

infer the group was celebrating that they had evaded capture after committing the

theft. And in view of all the circumstances presented, the fact that one of the group

carried an empty back pack also lends some support to a reasonable inference

that the group intended to commit a theft when they entered the garage.

B. Theft.

On the theft charge, the district court instructed the jury that in order to find

Gay guilty, the State had to prove the following:

1. On or about September 12, 2018, the defendant Ler He
Gay, took possession or control of property belonging to Levi and
Emily Freedman.
2. The defendant did so with the intent to deprive Levi and
Emily Freedman of the property.
3. The property, at the time of the taking, belonged to Levi and
Emily Freedman.

The court also instructed the jury it could find Gay guilty of theft by aiding or

abetting its commission if he

knowingly approve[d] and agree[d] to the commission of a [theft],
either by active participation in it or by knowingly advising or
encouraging the act in some way before or when it is committed.
Conduct following the crime may be considered only as it may tend
to prove [Gay]’s earlier participation. Mere nearness to, or presence
at, the scene of the crime, without more evidence, is not “aiding and
abetting.” Likewise, mere knowledge of the crime is not enough to
prove “aiding and abetting.”

Gay argues there is insufficient evidence of his guilt because the key was found

on another person. He also claims there is nothing to indicate he knew it was

taken or aided and abetted in its taking.
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In order to aid or abet in the commission of a crime, one must know of the

crime at the time of or before its commission. See State v. Henderson, 908 N.W.2d

868, 876 (Iowa 2018). But knowledge alone is insufficient. See id. The accused

must also assent to or lend countenance and approval to the crime by actively

participating in or encouraging its commission in some manner, either before or

during its commission. See id. Guilt is therefore shown by facts that show the part

the defendant had in its commission. See id.

Substantial circumstantial evidence shows Gay aided and abetted in the

theft of the Porsche key. Gay was in the garage with the person who was later

found in possession of the key. His act of fleeing with the others shows his

knowledge of the theft at the time of its commission. A jury could also infer from

the presence of a gun on Gay’s person that he had prior knowledge of the theft

and believed a gun might be needed

Because substantial evidence supports Gay’s burglary and theft

convictions, we affirm.

III. Sentencing.

We turn our focus to Gay’s challenge of the sentence imposed on his

burglary conviction. We review a sentence for correction of errors at law. See

State v. Damme, 944 N.W.2d 98, 103 (Iowa 2020). But we reverse a sentence

only if there was an abuse of discretion or defect in the sentencing procedure. See

id. Unless a sentence is mandatory, the failure of the district court to exercise its

discretion in sentencing is an abuse of discretion. See State v. Moore, 936 N.W.2d

436, 439 (Iowa 2019).
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The district court sentenced Gay to a twenty-five year sentence on his

burglary conviction with a minimum sentence of five years. See Iowa Code

§§ 902.7 (2018) (imposing a five-year minimum sentence “if the trier of fact finds

beyond a reasonable doubt that the person is guilty of a forcible felony and that

the person . . . was armed with a dangerous weapon while participating in the

forcible felony”), 902.9 (setting a maximum sentence of twenty-five years for class

“B” felonies). Because this is Gay’s first conviction of a forcible felony while armed

with a dangerous weapon, Iowa Code section 901.10(1) gave the court discretion

to impose a lesser sentence “if mitigating circumstances exist and those

circumstances are stated specifically in the record.” Gay argues the district court

failed to exercise that discretion.

A district court’s failure to exercise sentencing discretion requires

resentencing. See State v. Ayers, 590 N.W.2d 25, 27 (Iowa 1999). Because

sentencing decisions “are cloaked with a strong presumption in their favor,” Gay

must show the district court failed to exercise its discretion because it was unaware

of it. Id. at 29. If the record is unclear as to whether the court knew of its discretion

under section 901.10(1), we presume the court was aware of its discretion and

declined to exercise it. See id.; State v. Russian, 441 N.W.2d 374, 375 (Iowa 1989)

(holding the sentencing court is not required “to note the absence of mitigating

circumstances every time it declines to apply section 901.10”). But an abuse of

discretion occurs when the record “is clear the sentencing court incorrectly

believed it had no discretion as to the five-year mandatory minimum sentence

requirement in section 902.7.” Ayers, 590 N.W.2d at 29. The State argues this is

a case of the former—that the district court knew of its discretion and declined to
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exercise it. It notes that Gay’s attorney failed to cite section 910.1(1) or cite any

mitigating circumstances during the sentencing hearing. Gay concedes his

attorney failed to argue mitigating circumstances but argues the record is clear that

the district court did not believe it had discretion in sentencing.

At the sentencing hearing, Gay’s attorney told the court that her “ability to

request different sentencing options [was] very limited,” with counsel stating she

could not “ask for anything less than a 25-year indeterminate term with a five-year

mandatory.” During her brief remarks, Gay’s attorney did not cite to any mitigating

circumstances. Given the opportunity to address the court regarding his offenses

or sentences, Gay only stated that he wished it could lower his sentence. In

response, the court stated:

Mr. Gay, the Court doesn’t have the ability to alter the
sentence on the first-degree burglary charge. The Code requires,
upon a conviction of burglary in the first degree while carrying or
possession of a dangerous weapon, that the sentence is a
mandatory one and that sentence will be imposed.
It is a sentence not to exceed twenty-five years, a mandatory
minimum sentence of five years.

The record shows the district court did not believe it had discretion in

sentencing. The court did not mention section 901.10(1) at the sentencing hearing

or in its order. Nor did it discuss any mitigating factors. Its statements at the

sentencing hearing—that it did not have the ability to alter the sentence and that

the Code requires a mandatory sentence—indicate the court was unaware of its

discretion to sentence Gay for anything less than a twenty-five year sentence with

a mandatory minimum of five years. Because the court failed to exercise its

discretion in imposing sentence on Gay’s burglary conviction, we vacate the

sentence imposed on that conviction. We remand for resentencing. On remand,
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the district court may either allow the sentences for Gay’s other convictions to

stand or resentence on all counts if it determines it should revisit the entire

sentencing scheme.

IV. Ineffective Assistance of Counsel.

Gay contends his trial counsel was ineffective for failing to inform the district

court of its sentencing discretion under section 901.10(1). We are not allowed to

address Gay’s claim of ineffective assistance on direct appeal. Iowa Code § 814.7

(Supp. 2019); State v. Tucker, 959 N.W.2d 140, 154 (Iowa 2021). To the extent

Gay challenges section 814.7, our supreme court has rejected such claims. See

State v. Treptow, 960 N.W.2d 98, 107-08 (Iowa 2021) (rejecting claims that the

amendment violates due process and deprives a defendant of the right to effective

assistance of counsel); State v. Tucker, 959 N.W.2d 140, 151 (Iowa 2021)

(rejecting claim that the amendment violates the separation-of-powers doctrine).

To the extent Gay argues, in the alternative, that we should adopt the plain error

rule, our supreme court has refused to do so. See Treptow, 960 N.W.2d at 109.

We affirm Gay’s convictions, vacate his burglary sentence, and remand for

resentencing.

CONVICTIONS AFFIRMED, SENTENCES VACATED IN PART, AND

REMANDED FOR RESENTENCING.