IN THE COURT OF APPEALS OF IOWA

No. 16-1519

Filed June 21, 2017

STATE OF IOWA,

Plaintiff-Appellee,

vs.

KERRY B. MORGAN JR.,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Scott County, Henry W. Latham II, 

Judge.

A defendant appeals his convictions for first-degree burglary and domestic 

abuse assault. AFFIRMED.

Mark C. Smith, State Appellate Defender, and Robert P. Ranschau, 

Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant 

Attorney General, for appellee.

Considered by Danilson, C.J., and Potterfield and Bower, JJ.
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BOWER, Judge.

Kerry Morgan Jr. appeals his convictions for first-degree burglary and 

domestic abuse assault—strangulation with injury. We find there is substantial 

evidence to support the convictions and affirm.

I. Background Facts & Proceedings

Morgan and G.T. were previously in a relationship and were the parents of 

a child. They did not live together. G.T. lived in a two-story house with her 

friend, Allison Wuerzberger, and Allison’s mother, Debbie.

On February 20, 2016, at about 5:20 a.m., Allison and Debbie were 

awakened when they heard G.T. screaming. Debbie, who had the bedroom 

below G.T.’s, stated she heard G.T. yelling, “Kerry, stop, Kerry, stop. If you leave 

now, nobody is going to call the police, just leave. You’re hurting me.” Debbie 

heard Morgan say, “If I had my gun, you would be dead right now.” Allison 

peeked into G.T.’s bedroom and saw Morgan standing close to G.T. There was 

another man in the room, who seemed in a hurry to leave. After Allison closed 

the door, she heard “four thuds, which sounded like fists being—like someone 

was being hit.” Allison called 911. While talking to the dispatcher, she noticed 

the glass window in the front door was broken. Allison testified that as she was 

talking to the dispatcher, Morgan came downstairs, offered her $100 to fix the 

broken door—which she refused, then he went back to G.T.’s room.

Police officers arrived shortly thereafter, and Allison let them into the 

house. When they entered G.T.’s bedroom, they saw Morgan standing close to 

G.T., who was nude, crying, and hysterical. They observed G.T. “had a lot of 

redness all over her body, on her face, neck, arms, stomach, and her breast. 
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She also had an abrasion to her left breast, her right eye, and both arms.” G.T. 

told the officers Morgan punched her multiple times, choked her with his hands 

so her breathing was not normal, and put his fingers in her vagina. G.T. made 

similar statements to an emergency medical technician. Debbie later found a 

crowbar outside the home.

Morgan told officers he was upset because he discovered G.T. was 

having sex with another man. He stated he yelled and screamed at G.T. and she 

was scared of him. He admitted he threatened to kill G.T. but stated he did not 

mean it. Morgan stated he believed G.T. was engaged in sex work and 

advertising her services online and he was frustrated because she had not 

responded to his calls or texts for two weeks. Morgan also stated he believed 

G.T. was buying drugs with money he gave her for other purposes.

Morgan was charged with burglary in the first degree, in violation of Iowa 

Code section 713.3(2) (2016), and domestic abuse assault—strangulation with 

injury, in violation of section 708.2A(5). At Morgan’s criminal trial, G.T. testified 

she made plans with Morgan for him to visit her on the night of February 20, 

2016, but when he did not show up by 2:00 a.m., she asked another man, 

Justin,1to come over. G.T. stated she had sexual relations with Justin and he 

caused the red marks on her body. She testified Justin was in her room when 

Morgan showed up and, despite this, she let Morgan into the house. She stated 

Morgan yelled at her and pushed her into a chair but did not hit or strangle her. 

 

1 G.T. testified she did not know Justin’s last name. At the time of the incident, she told 

officers the other man in her room was named Chris and she did not know his last name.
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G.T. stated Justin broke the door on his way out of the house. G.T. testified she 

was not in her right mind at the time because she was high on heroin.

Morgan waived his right to a jury and the case was tried to the court. The 

district court found:

The Court finds none of the testimony provided by [G.T.] at 

trial to be credible. The statements provided to the officers at the 

time of the incident as first responders and the fact that she was so 

excited in her responses allows the Court to determine that the

statements made on the date of the incident were much more 

credible than those provided in the courtroom on the day of trial. 

Thus, the Court makes no credible finding of fact as it relates to the 

testimony of [G.T.] as it relates to recanting her statements as to 

the assault which occurred on February 20, 2016.

The court found Morgan guilty of first-degree burglary and domestic abuse 

assault—strangulation with injury.

Morgan was sentenced to a term of imprisonment not to exceed twentyfive years on the burglary charge and five years on the domestic abuse assault 

charge, to be served concurrently. Morgan appeals his convictions, claiming 

there is not substantial evidence in the record to support them.

II. Standard of Review

A challenge to the sufficiency of the evidence is reviewed for the 

correction of errors at law. State v. Alvarado, 875 N.W.2d 713, 715 (Iowa 2016). 

“[W]e review the evidence in the light most favorable to the State to determine if, 

when considered as a whole, a reasonable person could find guilt beyond a 

reasonable doubt.” Id. (citation omitted).

III. Sufficiency of the Evidence

A. Morgan claims there is insufficient evidence in the record to show 

he committed domestic abuse assault—strangulation with injury. He notes that 
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during the criminal trial, G.T. stated he pushed her into a chair but did not 

physically assault her. G.T. testified Morgan did not punch, kick, bite, or choke 

her or threaten her with physical harm. He claims the district court should have 

found G.T.’s testimony at trial credible, rather than her statements at the time of 

the incident, because she testified she was not in her right mind then due to drug 

use.

The credibility of witnesses was for the district court, as the fact finder, to 

decide. See State v. Lopez, 633 N.W.2d 774, 785-86 (Iowa 2001). “[W]hen the 

evidence is in conflict, the fact finder may resolve those conflicts in accordance 

with its own views as to the credibility of the witnesses.” State v. Hopkins, 576 

N.W.2d 374, 377 (Iowa 1998). The fact finder is “free to reject certain evidence, 

and credit other evidence.” State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012).

The district court found G.T.’s testimony during the criminal trial was not 

credible, finding her excited utterances to officers at the time of the incident were 

more reliable. On the night of the incident, G.T. told Officer Pershall she was 

assaulted by Morgan, which caused pain. G.T. stated “she was being choked by 

bare hands and she said it was—it made her breathing not normal.” The court 

also relied on a photo of G.T.’s neck injuries, which it found indicated pressure to 

her neck area. Morgan does not dispute he and G.T. were the parents of a child, 

and thus, in a domestic relationship. See Iowa Code § 236.2(2)(c). We conclude 

there is substantial evidence in the record to support Morgan’s conviction for 

domestic abuse assault—strangulation with injury.

B. On the charge of first-degree burglary, Morgan claims there is 

insufficient evidence to show he entered the residence with the intent to commit 
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an assault. He states he did not know there was another man with G.T. until he 

entered her bedroom and then he and G.T. got into an argument.

The offense of burglary requires the specific intent to “commit a felony, 

assault, or theft” in an occupied structure. Iowa Code § 713.1. “In order to 

sustain a conviction for burglary the State must prove, beyond a reasonable 

doubt, [a defendant] had formed the intent to commit an assault at the time of 

entry.” State v. Lambert, 612 N.W.2d 810, 813 (Iowa 2000). A defendant’s 

“intent is seldom proved by direct evidence, but rather is usually established by 

inference.” State v. Taylor, 689 N.W.2d 116, 129 (Iowa 2004). “A factfinder may 

infer an intent to commit an assault from the circumstances of the defendant's 

entry into the premises and his acts preceding and following the entry.” State v. 

Finnel, 515 N.W.2d 41, 42 (Iowa 1994).

Morgan made statements to officers showing he was frustrated with G.T. 

prior to going to her home. He stated he believed she was engaging in sex work 

and advertising her services online. He was also upset because she had not 

answered his calls or texts for two weeks. The evidence showed a forcible entry 

into the home due to the broken glass in the door and the crowbar found nearby. 

Once inside the home, Morgan assaulted G.T. by hitting her and choking her. He 

admitted to officers he threatened to kill her. From the evidence presented in this 

case, the fact finder could infer Morgan entered the residence with the intent to 

commit an assault. We conclude there is sufficient evidence in the record to 

support Morgan’s conviction for first-degree burglary.
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We affirm Morgan’s convictions for first-degree burglary and domestic 

abuse assault—strangulation with injury.

AFFIRMED.