State v. Baskin, 56584

• Decision Date: 31 July 1974
• Docket Number: No. 56584,56584
• Citation: 220 N.W.2d 882
• Parties: STATE of Iowa, Appellee, v. Preston L. BASKIN, Appellant.
• Court: Iowa Supreme Court

Page 882

220 N.W.2d 882

STATE of Iowa, Appellee, v. Preston L. BASKIN, Appellant.

No. 56584.

Supreme Court of Iowa.

July 31, 1974.

Paul A. Mahr, Sioux City, for appellant.

Richard C. Turner, Atty. Gen., David E. Linquist, Asst. Atty. Gen., Zigmund E. Chwirka, County Atty., for appellee.

Heard before MOORE, C.J., and MASON, RAWLINGS, REYNOLDSON, and HARRIS, JJ.

MASON, Justice.

Preston Baskin was convicted by a Woodbury County jury of assaulting Shirley A. Dicus with intent to commit rape in violation of section 698.4, The Code, 1973. He appeals from the judgment based on that verdict.

Shirley Dicus lived with her parents in Sioux City; her sister, Barbara Coenen, lived a short distance away. Shirley often baby-sat for Barbara's daughter, nine-year-old Robin Sitzman. February 28, 1973, Robin came to the Dicus home after school and shortly thereafter proceeded down the alley towards her home; Shirley who had been at her parents' home followed a few minutes later. Shortly after she entered Barbara's house there was a knock at the back door. Shirley opened the door and saw her niece and defendant. Robin entered and defendant allegedly forced his way in also. Shirley testified defendant asked if they knew a Del Brown or Del Baker; after saying no and allegedly asking defendant to leave, he proceeded to the dining room and used the telephone. Before using the phone defendant removed his shoes and left them by the back door.

Upon defendant's request Robin checked the directory for the names of Del Brown or Del Baker but could not find them. After using the phone defendant went into the bathroom located off the kitchen; Shirley and Robin remained in the kitchen. Shirley then instructed Robin to stay by the back door and she herself went into the living room to the front door. She began to unlock and open the door at which time defendant, who had followed her from the kitchen, grabbed her, tore her T-shirt and threw her onto the bed in a bedroom just off the living room. Shirley further testified that at this time defendant told her not to scream or he would kill her. Further, as he started to leave the bedroom he told her to remove her clothes, tell Robin to go outside and play and all he was interested in was sex.

At this time she ran out of the bedroom to the front door and began opening it. Defendant then grabbed her again and pulled her back into the bedroom. Defendant had his hands around her neck and was apparently choking her as she continued screaming. In the meantime, Robin had run back to her grandparents' home and had gotten Shirley's father. As defendant left the bedroom Mr. Dicus entered the back door; defendant turned and ran out of the front door of the house.

Shirley called the police and Mr. Dicus pursued defendant. After easily getting away defendant came back to where Mr. Dicus was standing on a street corner and stated: 'Mr. White Man, don't hurt me. I didn't mean to hurt this girl. Don't tell my wife.' After Mr. Dicus told him to wait and that the police were coming, defendant allegedly pulled a knife, threatened Dicus and cut him on the wrist. Defendant then ran away. He was arrested a short time later. No knife was ever found.

Baskin testified on his own behalf and contradicted some of the State's testimony. He stated he had been drinking on the day involved and only wanted Shirley's help in dialing a telephone number. He had entered the home but had removed his shoes and left them at the back door so as not to track mud into the house. When he used the phone he call both information and the company where his girlfriend worked. He stated he followed Shirley into the bedroom and grabbed her and placed her on the bed when she tried to run out. He denied having a knife and stated that when talking to Mr. Dicus on the street corner he took his car keys from his pocket. Defendant testified he did not intend to have sexual relations with Shirley nor did he ever solicit sexual intercourse with her.

Prior to arguments to the jury the instructions were presented to counsel for examination. At that time defense counsel made the following record:

'MR. MAHR: I object to Instruction No. 13 which defines intent. I also object to Instructions 11, 12 and 13 together because they fail to show or explain adequately and clearly to the jury the nature of the intent that they must find in this case, that is, intent to commit rape. I cite State v. Canada, 68 Iowa 397, 27 N.W. 288. (Quoting therefrom). I request Instructions 11, 12 and 13 be amended and that the following be added, preferably at the end of Instruction No. 13: 'You cannot convict the defendant of assault with intent to commit rape unless you are satisfied beyond a reasonable doubt that he intended to use whatever force might be necessary to overcome the prosecutrix and accomplish his purpose."

After jury arguments and prior to reading the instructions to the jury the court overruled defendant's objections to instructions 11, 12 and 13 and submitted the matter to the jury.

Defendant's motion for new trial based on the contention the verdict was contrary to the evidence and the jury was not properly instructed was overruled.

Defendant alleges the trial court erred: (1) in overruling his objections to instructions 11, 12 and 13 and refusing his requested amendment thereto and (2) in overruling his motion for new trial, particularly in regard to the sufficiency of the instructions.

I. The State contends defendant failed to preserve error in regard to the instructions.

Under section 780.35, The Code, 1971, rule 196, Rules of Civil Procedure, is made applicable to criminal prosecutions. Since this trial commenced May 15, 1973, rule 196 prior to its 1973 amendment is applicable. The full rule will not be quoted here. See State v. Gilmore, 181 N.W.2d 145, 146--147 (Iowa 1971).

The State argues defendant's objections were to preliminary drafts of the instructions and defendant failed to except to the trial court's failure to give his requested instruction and therefore failed to preserve error. It should be noted at the outset no issue was presented concerning the specificity of the objections. See State v. Hraha, 193 N.W.2d 484, 485--486 (Iowa 1972). The only issue regarding waiver concerns the timeliness of the objections.

The State insists by reason of defendant's failure to object to the instructions in their final form nothing is presented for review by this assignment, citing State v. Schmidt, 259 Iowa 972, 145 N.W.2d 631 and State v. Buchanan, 207 N.W.2d 784 (Iowa 1973).

As indicated, defendant objected to instructions 11, 12 and 13 when they were presented to counsel for examination before final argument. Defendant made no further objections until motion for new trial.

The right of a defendant in a criminal case to attack the court's instructions for the first time in motion for new trial is subject to two exceptions: (1) a party may expressly waive the right or (2) if the instruction was correct as given but not as explicit as a party may have desired he must request an additional instruction before the jury is charged. State v. Brown, 172 N.W.2d 152, 157 (Iowa 1969) and authorities cited.

Defendant's objection to instructions 11, 12 and 13, set out earlier, compels the conclusion defendant's complaint was that the instructions were not as explicit as he desired rather than being incorrect statements of law. Therefore, he is within the second exception noted in Brown. We therefore approach the assignment in that light.

Ordinarily, objections must be made to the instructions in their final form if they are to be considered on appeal. Rule 196, R.C.P. In other words, exceptions or objections to the preliminary draft of instructions will not support an assignment of error on appeal. State v. Schmidt, 259 Iowa at 979--980, 145 N.W.2d at 636 and State v. Clark, 187 N.W.2d 717, 719 (Iowa 1971).

The record and reporter's transcript of proceedings had in this matter disclose that trial commenced Tuesday, May 15, 1973. At the conclusion of defendant's evidence the State announced it would present no rebuttal. The record fails to indicate on what day the evidence closed. Evidently, arguments were to be made in the afternoon of this day. In any event, the court called counsel into chambers before arguments and advised them, 'We are not going to read the instructions until Monday.'

The court then inquired if the parties had any exceptions. The State had requested an instruction bearing on defendant's flight from the Coenen home as Mr. Dicus entered the back door which appears in the clerk's transcript in this matter. After some colloquy between court and counsel the court stated it would make a decision on whether to give the instruction Monday morning and advised defendant's counsel he would be given an opportunity to take exceptions in the event the court granted the State's requested instruction.

At this point defense counsel inquired if the court wanted a record on exceptions 'now', to which the court replied, 'Yes, not on that one (flight) but on all the rest.'

Defense counsel then proceeded to make objections to the instructions and furnished some citations to the court.

At this time the trial court ruled on one objection and reserved ruling until he read defendant's authority on the other.

Defense counsel then objected to instructions 11, 12 and 13. The case was adjourned until Monday morning.

Monday, May 21, the court announced in chambers defendant's objection to instruction 6 had been granted and his objections to 7, 11, 12 and 13 were overruled. The State's request for the flight instruction was overruled. The instructions were then read to the jury.

The foregoing record makes this case factually distinguishable from the authorities relied upon by the State. In State v. Schmidt, 259 Iowa 972, 145 N.W.2d 631 after both sides rested 'the Court provided counsel with a rough draft of the proposed instructions' and a...