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IN THE COURT OF APPEALS OF IOWA No. 0-873 / 10-0071 Filed December 22, 2010

STATE OF IOWA, Plaintiff-Appellee, vs. JUSTIN AARON DAVOLT, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Lee County, Cynthia H. Danielson, Judge.

Justin Davolt appeals from the judgment and sentence entered upon his conviction of first-degree theft. REVERSED AND REMANDED.

Mark C. Smith, State Appellate Defender, and Theresa R. Wilson, Assistant Appellate Defender, for appellant. Thomas J. Miller, Attorney General, Martha E. Trout, Assistant Attorney General, Michael P. Short, County Attorney, and Bruce McDonald, Assistant County Attorney, for appellee.

Considered by Eisenhauer, P.J., and Potterfield and Doyle, JJ. Tabor, J., takes no part.

2 POTTERFIELD, J. Justin Davolt appeals from the judgment and sentence entered upon his conviction for first-degree theft in violation of sections 714.1(1) and 714.2(1) (2009). Davolt contends there is insufficient evidence to support his conviction for first-degree theft because the State failed to prove he intended to permanently deprive Donald McCullough of the vehicle. Finding no meaningful distinction between the facts and circumstances in the present case and those in State v. Schminkey, 597 N.W.2d 785, 790

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