IN THE COURT OF APPEALS OF IOWA

No. 22-1114

Filed June 7, 2023

STATE OF IOWA,

Plaintiff-Appellee,

vs.

BRANDON SCOTT STEVENS,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Poweshiek County, Lucy J. Gamon, 

Judge.

A defendant appeals his conviction for theft of a motor vehicle. REVERSED 

AND REMANDED.

Gary Dickey of Dickey, Campbell, & Sahag Law Firm, PLC, Des Moines, for 

appellant.

Brenna Bird, Attorney General, and Israel Kodiaga, Assistant Attorney 

General, for appellee.

Considered by Bower, C.J., and Tabor and Greer, JJ.
2

TABOR, Judge.

A jury convicted Brandon Stevens of theft in the second degree for taking 

an electrical contractor’s work van. Stevens contends the State did not prove his 

intent to permanently deprive the owner of its property. Because the State did not 

prove that element beyond a reasonable doubt, we reverse his conviction for 

second-degree theft and remand for entry of judgment on the offense of operating 

a motor vehicle without the owner’s consent.

I. Facts and Prior Proceedings

Eric Hartz worked as a journeyman electrician for S&S Electric in Grinnell. 

One winter night in 2019—after coming home late from an out-of-town job—he 

parked the company van in the alley behind his house. By mistake, he left it 

unlocked with the keys in the ignition. By morning, it was gone. Hartz called his 

boss and the Grinnell police to report the missing van. 

Two days later, police found the van at a farmstead a few miles outside of 

town. On the van’s exterior, some of the company name had been scratched off.

As this photo exhibit shows, on the driver’s side, half of the first “S” in “S & S” and 

the “EL” in “ELECTRICAL” were gone. The rest of the lettering was undisturbed.
3

Inside the van, an inventory revealed about $13,500 worth of tools were 

missing.1 And whoever had been using the van left behind “quite a bit of clutter.” 

That clutter included remnants of a taco pizza, pop cans, a paper cup, a butane 

torch, a sweatshirt, and cigarette butts. Sergeant Benjamin Smith submitted 

several of those discarded items to the state crime laboratory for DNA analysis. 

From there the lab developed a profile, which Smith uploaded to the Combined 

DNA Index System (CODIS). He received a “hit” identifying Stevens as a suspect. 

Smith then obtained a buccal swab sample from Stevens. That sample “matched”

2

the DNA profile developed from the items in the van.3 

After receiving that lab report, Grinnell police obtained an arrest warrant for 

Stevens. Officer Bryce Doane took Stevens into custody and questioned him at 

the sheriff’s office. In the recorded interview, Stevens told the officer: “It was cold. 

I took a ride out there, and I fucking left it.”

The State charged Stevens with two counts: (1) theft in the first degree for 

taking in excess of $10,000 worth of tools from inside the van and (2) theft in the 

second degree for taking the van itself. The trial information also listed Stevens’s 

three prior felony convictions for purposes of the sentencing enhancement under 

Iowa Code section 902.8 (2020).

1 Law enforcement never located the missing tools.

2 Sergeant Smith testified that—according to the lab report—the lowest probability 

of finding this profile in a population of unrelated individuals chosen at random

would be one in 1.8 octillion.

3 Lab tests showed that DNA was left on the discarded items by at least three 

people.
4

At the 2022 jury trial, the State offered evidence that Stevens’s DNA was 

found in the van and that he admitted taking it from the alley behind Hartz’s 

residence. He drove the van out of town and allowed other people access to it. 

Indeed, Stevens admitted taking the van. He described being homeless 

and noticing the van parked in an alley:

[T]he door was open and the dome light was on, so that took me to 

the van. I looked in it, and I seen the keys. Oh, this is almost a 

Godsend because I was freezing. Without really contemplating 

anything else, I jumped in the van, shut the door and started it, 

backed up, and took off immediately headed out of town to where the 

van was found to Katie—Katie’s house and Shane’s house.

Stevens alleged that he spent about five hours in the van. He spent that 

time using drugs and having a “secretive” sexual liaison with Katie, who then gave 

him a ride back to town.4 He claimed that “everything was intact” when he left the 

van at the rural location. 

In closing arguments, defense counsel urged the jury to acquit on the 

greater offense of theft in favor of operating without owner’s consent:5

It seems to me there is an awful lot of evidence missing to say he 

intended to permanently deprive the owner of that vehicle. He left it 

in a place where it would be found. He never went back to it. He left 

it unlocked with the keys in the ignition. He did nothing to try to 

disguise it or hide it.

4 Katie was not a witness at the trial. Sergeant Smith testified that he did not 

interview her because she was a “fugitive” at the time. Smith also testified that he 

once had “an open theft case” with Katie’s boyfriend Shane, but could not reach 

him for this investigation because his phone was disconnected. 

5 The court instructed the jury on that lesser-included offense: “Any person who 

shall take possession or control of any . . . self-propelled vehicle, . . . the property 

of another, without the consent of the owner of such, but without the intent to 

permanently deprive the owner thereof, shall be guilty of an aggravated 

misdemeanor.” Iowa Code § 714.7 (2019).
5

During deliberations, the jury asked the court to define “permanently 

deprive.” With the sign-off from both the prosecutor and defense counsel, the court 

responded: “there is no legal definition of the phrase ‘permanently deprive.’ Please 

reread the instructions.” 

Less than forty minutes later, the jury returned its verdicts. The jury found 

Stevens not guilty on the theft-of-tools count but guilty on the theft-of-vehicle count. 

Stevens now challenges the sufficiency of the evidence for that verdict.

II. Substantial Evidence

We review this sufficiency claim for correction of legal error. State v. 

Crawford, 974 N.W.2d 510, 516 (Iowa 2022). We consider whether, when taken 

in the light most favorable to the State, the verdict is supported by substantial 

evidence. Id. Evidence is substantial if it would convince a rational trier of fact 

that Stevens is guilty beyond a reasonable doubt. See id. This standard means 

that evidence must do more than raise “suspicion, speculation, or conjecture” to a 

rational jury. State v. Leckington, 713 N.W.2d 218, 221 (Iowa 2006).

To convict Stevens of second-degree theft, the State had to prove two 

elements. First, that he knowingly took possession of a van belonging to S&S 

Electric. Iowa Code §§ 714.1(1), .2(2). And second, that he did so with the specific 

intent to permanently deprive the company of its property. Id. §§ 714.1(1), .2(2).

Stevens does not dispute the taking.6 Instead, he contends that the State did not 

6 When first confronted by Officer Doane, Stevens denied taking the van. But 

within a few minutes, he admitted that he took it “to have sex with Katie.”
6

prove beyond a reasonable doubt that he had the intent to permanently deprive 

the owner of its property.7

Proof that Stevens acted with the purpose of permanently depriving S&S 

Electric of its van required the jury to decide what he was thinking when he drove 

away in the van. See State v. Hanes, 790 N.W.2d 545, 556 (Iowa 2010) (“The 

specific intent is linked to the proscribed act and therefore must be present at the 

time of the proscribed act.”); State v. Miller, No. 16-2110, 2018 WL 1099580, at *5 

(Iowa Ct. App. 2018). Because a person’s thought process can seldom be shown 

by direct evidence, the prosecution may rely on circumstances surrounding the 

criminal act. Schminkey, 597 N.W.2d at 789. Thus, we examine the record for 

facts that would support an inference that Stevens intended to take more than 

temporary possession of the van. Id. “[T]he mere fact” that he took the van without 

the owner’s consent does not give rise to that inference. Id. at 791; see also State 

v. Morris, 677 N.W.2d 787, 788 (Iowa 2004).

So what facts or circumstances may give rise to that inference? In 

defending the verdict, the State first points to this passage from its crossexamination of Stevens when the prosecutor asked: “Did you have that cell phone 

with you at the time you stole the van?” And Stevens replied: “My cellphone was 

not working at the time I stole the van or wasn’t on.”8 The State seizes on 

7 The “intent to deprive” language in the definition of theft at Iowa Code

section 714.1(1) means the intent to “permanently” deprive. State v. Schminkey, 

597 N.W.2d 785, 789 (Iowa 1999).

8 The prosecutor was testing Stevens’s story. Stevens claimed that he knocked 

on the door of the trailer where Katie’s ex-husband lived—in the middle of the 

night—to ask that he “get ahold of Katie” because Stevens did not want to tip off 

her new boyfriend that he wanted to hang out with her and do drugs.
7

Stevens’s answer incorporating the term “stole” as an admission to “stealing” the 

van—rather than borrowing it or taking a “joyride.” But Stevens argues in his reply

brief that his echoing of “stole” says “nothing intrinsically about the intent to 

permanently deprive the owner of the property.” We agree.

Moving on, the State emphasizes that Stevens drove the van out of Grinnell 

and parked on a farmstead “behind a barn.” But again, as Stevens notes in his 

reply brief, the record does not support the State’s suggestion that the van was 

hidden behind a barn. Rather, the photos below show only that the van was parked 

in the country near a shed, a tractor, some big bales, and a cattle pasture.9

Yet the State contends that the distance that Stevens drove out of town and the 

interval of time between the taking and the van’s discovery distinguish this case 

from Schminkey and Morris. In Schminkey, the supreme court found no factual 

basis for an intent to permanently deprive when the defendant took a truck without 

permission but wrecked it before he could dispose of it. 597 N.W.2d at 791 (“In 

our search for other facts or circumstances that might reveal Schminkey’s intent in 

taking the pickup, we find none indicating that he intended to do anything more 

than temporarily use the vehicle to go home or to another bar.”). In Morris, the 

9 No witness testified how far the van was parked from the gravel road. 
8

court reversed a theft conviction when the defendant was caught about five miles 

from the owner’s residence after possessing the truck for about thirty minutes. 677 

N.W.2d at 788 (“Abandoning the vehicle and fleeing upon observing the presence 

of police was an act that would ordinarily assure that the truck would be returned 

to its owner.”). The State notes that unlike Schminkey, Stevens didn’t wreck the 

van. And unlike Morris, he didn’t abandon it at the sight of the police. 

True, this case presents a scenario different from Schminkey and Morris. 

But the differences do not show Stevens’s intent to permanently deprive the owner 

of the van. Stevens parked the van just a few miles outside of town—on a working 

farm where logically it would be discovered and returned to its owner. And that’s 

what happened. Within two days, the farm owner noticed the van and called his 

brother, who was coincidentally an employee of S&S, to ask what work they were

doing.

10

 The company president confirmed the location of the missing van and 

called police. Neither the short distance nor the brief timeframe provides proof 

beyond a reasonable doubt that Stevens had the requisite intent to commit theft.

In its strongest argument, the State points to evidence that someone started 

to remove decals from the side of the van, presumably to make it less conspicuous. 

Trouble is, the State did not prove Stevens undertook that effort. Stevens claims 

he left the van intact. Granted, the jury could reject his testimony.

11

 But the State 

10 The farmer also reported seeing a Ranger, described as a small all-terrain 

vehicle, near the van when it was discovered. Police knew Katie and Shane had 

a Ranger. But the investigation did not confirm their presence at the scene. 

11 On appeal, Stevens contends the State ignores the “elephant in the room”—the 

jury’s acquittal on the theft-of-tools count. He contends that the inconsistency in 

the verdicts supports his insufficiency argument. On its face, Stevens’s argument 

has some logical appeal since evidence of his guilt is only substantial “if it would 

convince a rational trier of fact.” State v. Warren, 955 N.W.2d 848, 856 (Iowa 
9

offered no countervailing evidence to show that it was Stevens who defaced the 

company logo. Without such evidence, the jury was left to speculate who tried to 

remove the decals. 

Finally, the State contends that the jury could have embraced Stevens’s 

testimony that he was without housing and inferred that he intended to use the van 

as a permanent shelter.12 According to the State, the van’s lived-in look, depicted 

in this photo exhibit, was “inconsistent with Stevens’s claim that he abandoned it 

just hours after his quick sexual outing.”

We are not persuaded that this mess exposed Stevens’s long-term plans—

formed when he took the van—to keep it for his own use. To the contrary, the 

items found in the van all corroborate a brief stay. One piece of clothing, half a 

2021) (emphasis added) (citation omitted). But he offers no case law to support 

his position that “both verdicts cannot be right” here. And he does not raise a 

separate inconsistent-verdicts claim. See State v. Halstead, 791 N.W.2d 805, 807 

(Iowa 2010). So we do not consider this argument.

12 Stevens’s mother also testified that her son was “homeless” and could not stay 

with her because she had moved into assisted-living apartments.
10

taco pizza, a few empty cans, cigarette butts, and a lighter do not scream 

permanency. Just as joyriding13 is not auto theft, neither is joyparking. See 

Schminkey, 597 N.W.2d at 791. 

Even viewing the evidence in the light most favorable to the State, we 

cannot find substantial evidence that Stevens took the van “for more than a joyride” 

into the country to rendezvous with Katie and use drugs. See State v. Clay, 824 

N.W.2d 488, 499−500 (Iowa 2012). In Clay, the supreme court found that the 

accused’s out-of-court statements about his plan to drive a stolen car to South 

Dakota could convince a reasonable jury that he intended to permanently deprive 

the owner of the vehicle. Id. By contrast, the State offered no admissions from 

Stevens or others that he had the intent to permanently deprive the company of its 

van. In fact, the only evidence of Stevens’s motive came from his own testimony, 

as well as his statements to Officer Doane, that he only took the van to get warm 

and meet up with Katie. The jury can disbelieve the defense narrative. Leckington,

713 N.W.2d at 214. But there is “little other evidence by which to judge his state 

of mind” at the time he took the vehicle. See State v. Branch, No. 10-1438, 2011 

WL 6661176, at *7 (Iowa Ct. App. Dec. 21, 2011). The evidence shows only that 

Stevens abandoned the van, he “did not intentionally wreck the vehicle, sell it, or 

do anything else that would have prevented its eventual return” to the company. 

13 This turn-of-the-century coinage means “[t]he illegal driving of someone else’s 

automobile without permission, but usually with no intent to deprive the owner of it 

permanently; . . .” Joyriding, Black’s Law Dictionary (11th ed. 2019) (citing Rollin 

M. Perkins & Ronald N. Boyce, Criminal Law 333 (3d ed. 1982) for history of the 

term: “When the automobile began to appear and was limited to the possession of 

a few of the more fortunate members of the community, many persons who 

ordinarily respected the property rights of others, yielded to the temptation to drive 

one of these new contrivances without the consent of the owner”).
11

State v. Moss, No. 10-0079, 2010 WL 5050561, at *3 (Iowa Ct. App. Dec. 8, 2010); 

see also Brainard v. State, 222 N.W.2d 711, 721 (Iowa 1974) (plurality opinion)

(finding defendant had no intent to permanently deprive owner of vehicle when he 

“neither intended to sell it nor to bring it back”).

Under these circumstances, substantial evidence does not support the 

jury’s finding that Stevens intended to permanently deprive the company of its van. 

As for a remedy, we remand for entry of an amended judgment and sentence on 

the lesser-included offense of operating without the owner’s consent. See Morris, 

677 N.W.2d at 789. 

REVERSED AND REMANDED.