State v. Chase, 68845

• Decision Date: 15 June 1983
• Docket Number: No. 68845,68845
• Citation: 335 N.W.2d 630
• Parties: STATE of Iowa, Appellee, v. Robert Larry CHASE, Appellant.
• Court: Iowa Supreme Court

Page 630

335 N.W.2d 630

STATE of Iowa, Appellee, v. Robert Larry CHASE, Appellant.

No. 68845.

Supreme Court of Iowa.

June 15, 1983.

Edward N. Wehr of Wehr & DeLange, Davenport, for appellant.

Thomas J. Miller, Atty. Gen., Teresa Baustian, Asst. Atty. Gen., G. Wylie Piller, III, Clinton County Atty., and Craig Ament, Asst. Clinton County Atty., for appellee.

Considered by REYNOLDSON, C.J., and McGIVERIN, LARSON, SCHULTZ, and WOLLE, JJ.

SCHULTZ, Justice.

Robert Chase appeals from his conviction for trespass in violation of Iowa Code section 716.8(2). Although he makes several challenges to the trial and sentencing procedure, we find the principal issue in this appeal to be the interpretation of section 716.8, the trespass penalty statute. In particular, the crucial question is whether a trespass as defined in section 716.7 is merely a simple misdemeanor under section 716.8(1) (simple trespass), or whether it is a serious misdemeanor pursuant to section 716.8(2) (serious trespass), when the only "damage" that is proved is a loss resulting from theft. Iowa Code § 716.8(2) (1983). We find that "damage" refers to physical damage and not merely theft. The prosecution failed to show defendant committed more than one hundred dollars of physical damage as is required to prove serious trespass. Thus, defendant's conviction for serious trespass is in error. Accordingly, we reverse and remand.

The evidence presented at trial depicts an unusual background of events and activities. Chase's great uncle, Edward Hagberg, died in December 1981 shortly after rewriting his will to change his major beneficiary from his relatives to a church. On January 6, 1982, Chase, his girlfriend, Donna Skiff, and his twelve-year-old son, Brett, went to the decedent's former residence. Chase had not previously obtained permission of the executor of Hagberg's estate either to enter the Hagberg home or to remove any of its contents. Chase asserts that there had been "break-ins" by others and that his purpose in entering the house was to "preserve the property" by taking it to be stored in a more secure location across from the law center.

Chase and his son entered the house, but Skiff remained in the car which she drove around the area for nearly two and one-half hours. Then, after receiving instructions by walkie-talkie, she returned to the house and Chase began loading items into her car. When he noticed the headlights of an approaching car, Chase closed the hatchback and told Skiff to leave. As Skiff pulled away Chase called her on the walkie-talkie and told her that the police were near and that she should "go fast." Skiff had not turned on the car lights and an officer stopped her car. The officer noticed the items and arrested Skiff. The officers then traced the items to the Hagberg house. When they arrived at the house they found evidence of the entry. They also discovered two sets of tracks in the snow which they followed for more than a mile until they found and arrested the defendant and his son.

Chase admitted the entry, but he contended that he did not intend to commit theft by permanently depriving the owner of the property. Nevertheless, Chase was charged with the crime of burglary in the second degree. Iowa Code § 713.3.

At trial the court instructed the jury to determine the guilt of defendant of the offense of burglary in the second degree based on Chase's intent to commit theft. The court also submitted to the jury the crimes of serious and simple trespass as lesser and included offenses of burglary in the second degree. The jury found Chase guilty of serious trespass.

On this appeal defendant alleges error in the pretrial ruling, trial ruling, and the sentencing procedure. We hold that the trial court erred in submitting serious trespass to the jury as a lesser and included offense; therefore, we need not discuss most of the issues raised by defendant. We shall discuss, however, defendant's allegations that (1) the criminal charges against him should have been dismissed because of prosecutorial and judicial misconduct; (2) section 716.8 is unconstitutionally vague and overbroad; and (3) serious trespass should not have been submitted to the jury as a lesser and included offense of burglary in the second degree because there is no factual basis for the charge.

I. Dismissal due to misconduct.

A. Prosecutorial misconduct.

Defendant argues that double jeopardy attaches to prevent retrial on the charge of simple trespass because the prosecutor's misconduct was not mere negligence or inadvertence. Assuming, without deciding, that such misconduct occurred, we hold that the prosecutor's conduct does not prevent retrial of the defendant.

The Supreme Court recently examined the application of double jeopardy prohibitions against retrials in a similar context. Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982). The court stated that although generally the double jeopardy clause protects a defendant from multiple prosecutions, a narrow exception to this rule is provided where the defendant moves for the mistrial; however, this exception is not applicable when the prosecutor intends to provoke the defendant into moving for a mistrial so that he can subvert the protections afforded by the double jeopardy clause. Kennedy, 456 U.S. at 672-73, 102 S.Ct. at 2088, 72 L.Ed.2d at 425. We held these principles applicable to the Iowa Constitution as well. State v. Bell, 322 N.W.2d 93, 94 (Iowa 1982). See State v. Nelson, 234 N.W.2d 368, 374-75 (Iowa 1975); State v. Manning, 224 N.W.2d 232, 235 (Iowa 1974).

The acts of the prosecutor cited by Chase fall short of conduct intended to provoke a mistrial. The motions for mistrial complained that the prosecutor intentionally presented inadmissible evidence concerning Chase's sexual relations with Skiff and Skiff's statements that she was afraid Chase would kill her. Defendant also complains that evidentiary matters were deliberately withheld from him and that a continuance was obtained as a device to obtain further time to give notice of the testimony of a witness in order to use her testimony at trial. Regardless of the correctness of the trial court's rulings on these matters, there is no indication of a deliberate attempt by the prosecutor to sabotage the trial in order to force the defendant into requesting a mistrial. At most, the prosecutor's conduct presented grounds for the defendant to claim a mistrial. The double jeopardy clause was not triggered.

B. Judicial misconduct.

Chase also moved for a mistrial based on his claim that the trial court wrongfully interjected itself into the case by interposing its own objection to a question that defense counsel asked in the presence of the jury. Chase also raises several matters that were not included in his motion to dismiss and were not preserved for appeal. Although we need not discuss these allegations, they are generally claims that the trial court unfairly favored the prosecutor in an effort to assist an inexperienced prosecutor against an experienced defense counsel. Even if defendant's allegations are correct, they are only grounds for a mistrial, not for a dismissal of the case which would prevent retrial.

A motion for a mistrial is the proper remedy for the conduct of a judge who acts in a biased or prejudiced manner during a jury trial. If the defendant's motion is granted or if an appellate court determines that it was reversible error for the trial court not to have declared a mistrial, a subsequent prosecution of a defendant for the same offense or included offense does not violate the rule against double jeopardy. The general rule that the guarantee against double jeopardy does not bar retrial of a defendant when the prior trial was terminated or reversed on the behest of the defendant comes into play. Manning, 224 N.W.2d at 235.

II. Constitutionality of sections 716.7 and 716.8.

Chase made a timely objection to the statutory definition of criminal trespass contained in the instructions because he believed it to be unconstitutionally vague and overbroad. He argued that the legislature created the vagueness and overbreadth when it amended Iowa Code section 716.7(2)(a) (1981). That section in pertinent part had defined trespass as follows:

a. Entering upon or in property without justification or without the implied or actual permission of the owner, lessee, or person in lawful possession with the intent to commit a public offense or to use, remove therefrom, alter, damage, harass, or place thereon or therein anything animate or inanimate.

Subsection (2)(a) was revised and amended in 1981, see 1981 Iowa Acts ch. 205 § 1, so that the section now reads in pertinent part as follows:

a. Entering upon or in property without the express permission of the owner, ... with the intent to commit a public offense, to use, remove therefrom, alter, damage, harass, or place thereon or therein anything animate or inanimate, or to hunt, fish or trap on or in the property. This paragraph does not prohibit the unarmed pursuit of game or furbearing animals lawfully injured or killed which come to rest on or escape to the property of another.

Iowa Code § 716.7(2)(a) (1983). Chase maintains that section 716.7 is overbroad and vague because the terms "implied" and "without justification" were deleted from the previous statute. He now argues that innocent conduct would allow a criminal conviction. We find no merit in these contentions.

The principles that we apply when examining statutes under constitutional attack are well established, see State v. Sullivan, 298 N.W.2d 267, 270 (Iowa 1980), and need not be repeated here.

A. Overbreadth.

A statute is overbroad if it attempts to achieve a governmental purpose to control or prevent conduct that is constitutionally subject to state regulation by means which also tramp upon those actions ordinarily deemed to be within the area of protected freedom. State v. Lee, 315...