State v. Chrisman

• Decision Date: 23 February 1994
• Docket Number: No. 92-1582,92-1582
• Citation: 514 N.W.2d 57
• Parties: STATE of Iowa, Appellee, v. David Wayne CHRISMAN, Appellant.
• Court: Iowa Supreme Court

Page 57

514 N.W.2d 57

STATE of Iowa, Appellee, v. David Wayne CHRISMAN, Appellant.

No. 92-1582.

Supreme Court of Iowa.

Feb. 23, 1994.

Linda Del Gallo, State Appellate Defender, and Andi S. Lipman, Asst. State Appellate Defender, for appellant.

Bonnie J. Campbell, Atty. Gen., Martha E. Boesen, Asst. Atty. Gen., Charles A. Stream, County Atty., and Vicki Siegel, Asst. County Atty., for appellee.

Considered by LARSON, P.J., and CARTER, LAVORATO, NEUMAN, and TERNUS, JJ.

TERNUS, Justice.

Defendant David Wayne Chrisman appeals his convictions of two counts of third-degree theft and two counts of second-degree burglary in violation of Iowa Code sections 714.1(1), 714.2(3), 713.1, and 713.5 (1991). Chrisman argues that: (1) there was insufficient evidence to support two theft convictions; (2) the district court erred in denying his motion to suppress evidence allegedly seized in violation of the Fourth Amendment; and (3) Iowa Code section 4.13 requires that he be sentenced for the thefts and burglaries under amended statutes that mitigated his punishment. We affirm Chrisman's convictions on all counts and his sentences for second-degree burglary, vacate his sentences for third-degree theft, and remand for resentencing.

I. Background Facts and Proceedings.

On the night of February 6, 1992, two buildings on the Mahaska Farm Service property were burglarized. A Farm Service employee discovered the burglary to the service center building around 10:30 p.m. that evening. The police officers called to the scene found that the feed mill building had also been burglarized. Safes in both buildings had been pried open and cash was missing from them. The burglars had taken approximately $110 from the service center safe and $115 from the feed mill safe.

The investigating officers, Charles Van Toorn and Barb Saville, observed two sets of footprints at the scene. One footprint was found on a piece of notebook paper lying by a safe and was made by Adidas brand tennis shoes.

Earlier that evening at around 9:30 p.m., Officer Scott McCallum was on patrol and observed a car parked on the shoulder of the road about half a block from the Farm Service property. McCallum stopped his car to investigate. The car's male driver, the only occupant, told McCallum that his car had overheated but that it would run again in a few minutes. McCallum ran a routine license check on the car and its registered owner and proceeded with his patrol. When he learned of the burglaries at the Farm Service buildings, he reported this incident to Van Toorn and Saville and informed them that the car was registered to Robin Damiano.

At around 3:30 a.m. on February 7, Van Toorn and Saville went to Damiano's apartment. Damiano answered the door and told them they could come inside. They entered and saw Chrisman lying on a bed in the one room apartment. Saville noticed a pair of Adidas tennis shoes under an end table. The officers asked if they could look at the shoes and either Damiano or Chrisman handed them to Saville. The officers then asked if they could take the shoes with them. Chrisman refused their request so the officers took the shoes without his consent.

Chrisman was charged by trial information with two counts of burglary in the second degree and two counts of theft in the third degree. Chrisman filed a motion to suppress the Adidas tennis shoes. The district court denied the motion and this evidence was admitted at trial.

A jury found Chrisman guilty of all charges. At the sentencing hearing on October 2, 1992, Chrisman requested that he be sentenced under the amended burglary and theft statutes. 1992 Iowa Acts ch. 1060, § 1 and ch. 1231, § 61. The court denied this request and sentenced Chrisman pursuant to Iowa Code sections 713.5 and 714.2(3) (1991). Chrisman was sentenced as an habitual offender to fifteen years on each of the burglary counts. He was also sentenced to a term not to exceed two years on each theft count. Chrisman appeals his convictions and sentences.

II. Theft Convictions.

Chrisman argues that there was insufficient evidence to support two theft convictions. His primary contention is that Iowa Code section 714.3 requires that his acts should have been considered as one theft. Section 714.3 provides in pertinent part:

If money or property is stolen from the same person or location by two or more acts, or from different persons by two or more acts which occur in approximately the same location or time period so that the thefts are attributable to a single scheme, plan or conspiracy, these acts may be considered a single theft and the value may be the total value of all the property stolen.

A. Error preservation. The State contends that Chrisman's challenge is not really to the sufficiency of the evidence but is actually a challenge to the trial information. Iowa Rule of Criminal Procedure 10(2) requires that objections based on defects in the information must be raised prior to trial. See also State v. Grindle, 215 N.W.2d 268, 269 (Iowa 1974). Because Chrisman did not object to the trial information, the State argues that he waived the issue of whether his acts should have been considered one theft under section 714.3.

At trial Chrisman moved for a judgment of acquittal at the close of the State's evidence and again at the close of all the evidence. Chrisman argued that the State failed to establish the existence of two separate thefts. He raised the same issue in a motion for new trial. The district court denied each motion.

Whether a particular defendant's acts constitute a single theft depends on the facts of the crime. Until the parties make a factual record, the court does not have an adequate basis to decide this issue. Consequently, Chrisman was not required to challenge the trial information charging him with two thefts. Thus, he adequately preserved error by raising this issue after the State presented its case.

B. Effect of section 714.3. Section 714.3 provides that two or more acts may be considered a single theft if certain conditions are met. The use of the word "may" ordinarily confers a power, not a duty. Fernandez v. Curley, 463 N.W.2d 5, 8 (Iowa 1990); see Iowa Code § 4.1(36)(c) (1991). As one authority notes, "the prosecution is not required to accumulate thefts no matter how closely they may be connected." 4 Ronald L. Carlson and John L. Yeager, Criminal Law and Procedure § 324, at 99 (Supp.1993). We conclude that section 714.3 did not require the State to charge Chrisman with only one theft.

C. Single larceny rule. Chrisman also relies upon the case of State v. Amsden, 300 N.W.2d 882 (Iowa 1981). He argues that consolidation of theft charges is required when a series of takings are the result of a single criminal impulse. We disagree.

In Amsden, the defendant was charged with one count of first-degree theft based on the aggregation of five incidents of taking money from several people on several occasions. We considered whether the evidence was sufficient to support the factual findings necessary for aggregation of the five thefts under section 714.3. We did not hold that aggregation was required which is what Chrisman argues in this case.

Chrisman apparently relies on the single larceny rule followed in Iowa and discussed in Amsden. See Amsden, 300 N.W.2d at 885; State v. Cabbell, 252 N.W.2d 451, 453 (Iowa 1977). "Under the single larceny rule '... the stealing of property from different owners at the same time and at the same place constitutes but one larceny.' " Cabbell, 252 N.W.2d at 453 (quoting Daniel H. White, Annotation, Single or Separate Larceny Predicated Upon Stealing Property from Different Owners at the Same Time, 37 A.L.R.3d 1407, 1410 (1971)). We refused to apply this rule in Cabbell where the defendant had shoplifted items from two different owners at two different locations on the same day.

We applied the following principle instead:

"[I]t is well settled that if, on the same expedition, there are several distinct larcenous takings, as the taking of the goods of one person at one place, and afterward the taking of the goods of another person at another place, and so on, as many crimes are committed as there are several and distinct takings, and this is true although the thefts may all have been committed in rapid succession and in pursuance of a formed design to steal."

Cabbell, 252 N.W.2d at 453 (quoting 50 Am.Jur.2d Larceny § 3, at 154-55 (1970)). We reach the same conclusion here. Although Chrisman stole money from the same owner, the difference in location and the necessity to break into two separate buildings support Chrisman's conviction of two thefts.

III. Motion to Suppress Evidence.

Chrisman filed a motion to suppress the shoes taken from Damiano's apartment. He argued that the shoes were seized in violation of the Fourth Amendment to the United States Constitution. The State justifies the seizure under the plain view doctrine.

Review of a lower court's ruling on the validity of a seizure under the plain view doctrine is de novo. State v. Oliver, 341 N.W.2d 25, 32 (Iowa 1983). Our review is based on our independent evaluation of the relevant circumstances appearing in the record. State v. Campbell, 326 N.W.2d 350, 352 (Iowa 1982).

A. Error preservation. The State argues that Chrisman failed to preserve error on this issue because he did not request the district court to make a specific ruling on the lawfulness of the seizure. We reject the State's contention and find that error was preserved.

In his motion to suppress, Chrisman challenged only the lawfulness of the seizure of his tennis shoes, not the search which led to their discovery. The district court ruled that the "searches made herein were consensual" and denied Chrisman's motion. The State may believe that the trial court's analysis was inadequate in focusing only on the search in determining the propriety of the seizure. Nevertheless, the court ruled on the issue presented by the motion....