Fenske v. State, 97-608

• Decision Date: 24 March 1999
• Docket Number: No. 97-608,97-608
• Parties: Stan T. FENSKE, Appellant, v. STATE of Iowa, Appellee.
• Court: Iowa Supreme Court

Page 333

592 N.W.2d 333

Stan T. FENSKE, Appellant, v. STATE of Iowa, Appellee.

No. 97-608.

Supreme Court of Iowa.

March 24, 1999.

Philip B. Mears of the Mears Law Office, Iowa City, for appellant.

Thomas J. Miller, Attorney General, Thomas Tauber, Assistant Attorney General, and Michael W. Mahaffey, County Attorney, for appellee.

Considered en banc.

LARSON, Justice.

This is an appeal from a district court order denying Stan T. Fenske's application for postconviction relief under Iowa Code chapter 822 (1997). We affirm.

I. Statement of the Case.

Fenske was convicted in 1991 of first-degree burglary, assault with intent to inflict serious injury, and simple assault. He appealed, and the court of appeals reversed the conviction on the burglary count. On further review, we vacated the court of appeals decision and reinstated the conviction. State v. Fenske, 500 N.W.2d 447 (Iowa 1992) (table; case not reported) (Fenske I).

Fenske petitioned for federal habeas corpus relief on the grounds (1) no rational juror could have found the elements of burglary beyond a reasonable doubt, and (2) his counsel was ineffective because he did not request a limiting instruction regarding the State's impeachment evidence. The federal district court denied relief, and the eighth circuit court of appeals affirmed. See Fenske v. Thalacker, 60 F.3d 478 (8th Cir.1995).

Fenske then applied for postconviction relief under Iowa Code chapter 822. He claimed that, when we affirmed his conviction in Fenske I, we did so "on a theory of guilt that was neither charged in the trial information nor presented to the jury." The court denied his application.

II. The Facts.

The evidence at the burglary trial showed that early in the morning of June 20, 1990, Fenske and William Weant went to Maurine Creamer's house. Creamer was out of town, and Danelle Besco was living there with Creamer's consent. Fenske knocked at the door with no response. He and Weant walked in. Besco was asleep upstairs, and a friend of Creamer, Michael Bown, was asleep on the couch on the main floor. Bown awakened and found Fenske standing in the room. Fenske asked Bown where Besco was, and Bown, who had not seen Besco return after leaving earlier, said that Besco was not there. Fenske went upstairs and found Besco, who told Fenske to leave. Fenske went downstairs and pulled out his gun, threatened to shoot Bown for lying to him, and struck Bown several times with the gun. Besco ran out the back door and called the police.

III. The Issue.

Fenske maintains his conviction was erroneously affirmed by this court in Fenske I because we decided the case on a theory not presented to the jury. He did not raise this objection prior to the present postconviction relief proceeding but contends he is excused from doing so because he received ineffective assistance of counsel. We do not address the ineffective-assistance-of-counsel issue because we reject Fenske's argument on its merits.

The burglary statute under which Fenske was convicted provided:

Any person, having the intent to commit a felony, assault or theft therein, who, having no right, license or privilege to do so, enters an occupied structure, such occupied structure not being open to the public, or who remains therein after it is closed to the public or after the person's right, license or privilege to be there has expired, or any person having such intent who breaks an occupied structure, commits burglary.

Iowa Code § 713.1 (1991) (emphasis added).

The key issue throughout this case has been whether Fenske had a "right, license or privilege" to enter the house. He claims the State tried the case on the theory that Besco had standing to give or deny consent to Fenske's entry. In the appeal in Fenske I, we suggested that the evidence would also support a finding that Creamer had the right to consent, and Fenske's entry was beyond the scope of that consent. This constituted a fatal discrepancy, according to Fenske, because the case was tried on the theory that Besco, not Creamer, had the authority to give consent.

Fenske relies primarily on two United States Supreme Court cases to support his argument: Chiarella v. United States, 445 U.S. 222, 100 S.Ct. 1108, 63 L.Ed.2d 348 (1980), and Dunn v. United States, 442 U.S 100, 99 S.Ct. 2190, 60 L.Ed.2d 743 (1979). In Chiarella the defendant was an employee of a financial publication and through that position acquired advance information about a proposed corporate takeover. Chiarella acted on that information by trading in stock in the target company. He was convicted of fraud against the sellers, but on appeal the government relied on an alternative theory, that Chiarella's acts also constituted fraud against the buyers. The Supreme Court refused to consider this alternative theory because it had not been presented to the jury. Chiarella, 445 U.S. at 235-37, 100 S.Ct. at 1118-19, 63 L.Ed.2d at 361-62.

In Dunn the defendant was charged with giving false testimony in a sworn statement made by him in an attorney's office. The government charged this was a false statement made in a "proceeding ... ancillary to [a] court proceeding," a violation of federal law. Dunn later incorporated this statement in his grand jury testimony. The Supreme Court held that the earlier statement, made in the lawyer's office, was not "ancillary" to a court proceeding, so the conviction could not stand. Moreover, the court ruled his conviction could not be affirmed on the basis his grand jury testimony incorporating the lawyer's office statement was a "court proceeding" under the statute; because the indictment had not charged the act of lying before the grand jury, the Court held the case suffered from a fatal "discrepancy between the basis on which the jury rendered its verdict and that on which the Court of Appeals sustained petitioner's conviction." Dunn, 442 U.S. at 106, 99 S.Ct. at 2194, 60 L.Ed.2d at 750. The Court stated:

To uphold a conviction on a charge that was neither alleged in an indictment nor presented to a jury at trial offends the most basic notions of due process. Few constitutional principles are more firmly established than a defendant's right to be heard on the specific charges of which he is accused.

Id. at 106, 99 S.Ct. at 2194, 60 L.Ed.2d at 750.

Both Chiarella and Dunn are inapposite. The "theory" of a charge is to be determined by examining the charging instrument, Dunn, 442 U.S. at 106, 99 S.Ct. at 2194, 60 L.Ed.2d at 749-50, and the court's instructions, Chiarella, 445 U.S. at 236, 100 S.Ct. at 1118-19, 63 L.Ed.2d at 361-62. In this case, the county attorney's information against Fenske did not charge any theory as to who had the authority to give consent. In keeping with our "short-form indictment" rule, Iowa R.Crim. P. 31, form 10, the information simply stated:

Said Defendant, on or about the 20th day of June, 1990, in Poweshiek County, Iowa, did: at 933 Center Street in Grinnell, Iowa, enter an occupied structure, namely a residence, with no right, license or privilege to do so, having the intent to commit an assault therein, and at the time of entering the residence, did possess a dangerous weapon.

Nor was any theory stated in the court's instruction concerning who was in a position to deny consent. The instructions merely stated the elements of the charge, including:

1. On or about the 20th day of June, 1990, the defendant entered a residence at 933 Center Street.

2. The residence was an occupied structure as defined in Instruction No. 17.

3. The defendant did not have permission or authority to enter the residence.

(Emphasis added.)

Neither the county attorney's information nor the court's instructions evidenced a theory as to who had the right to give or withhold consent to entering the home. The only theory at trial was that Fenske did not have authority to enter. Both the opening statement (which was reported) and the instructions made it clear that whether Fenske had consent to enter the house was a fact question for the jury. ¹ The jury resolved the question against Fenske, and substantial evidence supports that finding. The district court properly denied the application for postconviction relief.

AFFIRMED.

All justices concur except SNELL, LAVORATO, and TERNUS, JJ., who dissent.

SNELL, Justice (dissenting).

I respectfully dissent. On this second appeal to our court by defendant Stan T. Fenske, questions of law are at issue that were not raised or considered in the first appeal. The first appeal, on which Fenske's conviction was affirmed, considered only a question of sufficiency of the evidence. This second appeal attacks our affirmance in the first appeal on the ground that it is based on a theory of guilt that differs from the prosecutor's theory on which the case was tried or on which the jury convicted. As such, Fenske asserts he has suffered a violation of his constitutional right to trial by jury guaranteed by the United States Constitution's Sixth Amendment, and his Fifth and Fourteenth Amendment rights to due process and adequate notice of the charges against him. I believe these claims now presented by Fenske are meritorious and show that his conviction is unconstitutionally flawed. I would reverse.

I. Factual and Procedural Background

A jury could have found the following facts from testimony presented at Fenske's trial. In the early morning hours of June 20, 1990, Fenske made a series of telephone calls to the residence of a friend, Maurine Creamer. Although Creamer normally lived in the home, which was owned by her mother, Fenske knew Creamer had left town for Las Vegas that day. It is undisputed that Creamer gave permission to her friend Danelle Besco to live in the house while she was away and told her she was "in charge." Michael Bown, a former boyfriend of Creamer's who was staying at the house that night, answered the calls. Bown testified he did not know the caller and did not understand what the caller...