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IN THE COURT OF APPEALS OF IOWA No. 6-951 / 06-0025 Filed December 28, 2006

STATE OF IOWA, Plaintiff-Appellee, vs. DARRELL ALLEN SHOWENS, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Scott County, David H. Sivright, Jr., Judge.

Darrell Allen Showens appeals his conviction for attempted burglary in the second degree. AFFIRMED.

Linda Del Gallo, State Appellate Defender, and Patricia Reynolds, Assistant Appellate Defender, for appellant. Thomas J. Miller, Attorney General, Thomas Andrews, Assistant Attorney General, William E. Davis, County Attorney, and Julie Walton, Assistant County Attorney, for appellee.

Considered by Huitink, P.J., Vogel, J., and Brown, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2005).

2 HUITINK, P.J. Darrell Allen Showens appeals his conviction for attempted burglary in the second degree. He claims the evidence is not sufficient to support his conviction. Showens also claims prosecutorial misconduct necessitating a new trial. We affirm. I. Background Facts and Proceedings. Holly Bierman called the police after she heard noises outside her bathroom window and saw someone outside her bedroom window moving or attempting to remove the air conditioner. Lori Walker, the responding police officer, found Showens with his hands on the outside wall of Bierman's apartment house looking in an apartment window. Walker would later testify that Showens told her he had been drinking with friends earlier and was riding his bicycle home when he decided to walk for awhile to sober up. Walker's subsequent

questioning also indicated Showens could not recall the address of the residence where he was drinking with his friends, nor was his presence near Bierman's apartment building consistent with the most direct route to his stated home address. Showens also told Walker he was looking in the windows so he could see a clock to determine the correct time. Walker testified Showens was wearing a watch and, contrary to his claims, did not appear to be nor did a subsequent breath test indicate he was intoxicated. Showens's bicycle was located nearby. Investigators subsequently found an inverted chair under Bierman's window. Showens's fingerprint was found on Bierman's window air conditioner.

3 At the close of the evidence, Showens's counsel moved for a judgment of acquittal. Counsel argued the evidence was not sufficient to establish Showens's intent to commit an assault or theft. The trial court's resulting ruling states: The motion is denied. The Court finds that a jury question is generated by the circumstantial evidence in this case, which includes the fact that the area was not well lit. There is evidence from which the jury could find the Defendant had been there before and had ascertained that fact; that his bicycle was left some distance from the area where the alleged victim resided; the hour of the early morning. This is circumstantial evidence from which the jury could conclude that the intent was to break or enter and commit a crime, specifically a

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