State v. Copenhaver

• Decision Date: 21 March 2014
• Docket Number: No. 11–1616.,11–1616.
• Citation: 844 N.W.2d 442
• Parties: STATE of Iowa, Appellee, v. Randy Mitchell COPENHAVER, Appellant.
• Court: Iowa Supreme Court

844 N.W.2d 442

STATE of Iowa, Appellee,

v.Randy Mitchell COPENHAVER, Appellant.

No. 11–1616.

Supreme Court of Iowa.

March 21, 2014.

Mark C. Smith, State Appellate Defender, and David Arthur Adams, Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Mary A. Triick and Kevin R. Cmelik, Assistant Attorneys General, and Gerald A. Vander Sanden, County Attorney, for appellee.

WIGGINS, Justice.

The defendant entered a bank, approached two separate tellers, and demanded each teller give him money from their cash drawers. The State charged the defendant with two separate robberies, and the jury found him guilty of the two robberies. The defendant appealed, claiming that if a robbery took place, only one robbery occurred. He further claimed substantial evidence did not support two robbery convictions. He also raises additional matters in his pro se brief. We transferred the case to the court of appeals. The court of appeals affirmed his convictions. The defendant asked for further review, which we granted.

On further review, we agree with the court of appeals resolution of the pro se issues and let its decision stand as our final decision on the issues the defendant raised in his pro se brief. Additionally, we find substantial evidence supports the defendant committed two separate and distinct robberies. Therefore, we affirm the decision of the court of appeals and the judgment of the district court.

I. Background Facts and Proceedings.

On February 11, 2010, a person entered the Community Savings Bank branch officeon Mount Vernon Road in Cedar Rapids. The person was wearing a mask. There was only one teller on the teller line, Jamie Kasmiskie. Another teller and two bank officers were also present in the bank. The person approached Kasmiskie and passed her a note. The note said, “this is a robbery” and “100's, 50's, and 20's.” The person also spoke to Kasmiskie, saying, “This is a robbery. Give me your money.” The person further stated, “Don't hit any buttons.”

Kasmiskie testified her first thought was not to panic. She testified she did not know what was going to happen. Kasmiskie felt her adrenaline pumping, her legs and hands were shaking, and after the incident she thought she might vomit. She did not feel the person was aggressive towards her, nor did the person imply or threaten a weapon. However, Kasmiskie feared some kind of physical contact if she did not comply, because the person was leaning closer to her than any ordinary customer would have been.

Kasmiskie testified she began handing the money to the person. When Kasmiskie finished handing over the twenties, she waited to see if the person was going to leave. The person indicated to her that she should continue to hand over the money. Kasmiskie gave the suspect “bait money” of one hundred dollars in twenties. Bait money is money the bank is able to track because the bank has kept a record of the money, such as the serial numbers on the bills.

Another teller, Sandra Ries, noticed Kasmiskie and the person and went out to her window, which was next to Kasmiskie's window. The suspect then went to Ries's window and demanded money from her. The person said, “Give me your f_______ 50's and 100's,” and “I want all of your 100's and 50's.” Ries indicated she did not have any more of those bills in her drawer, and the person said, “Then, well, give me your 20's also.” Ries described the voice as very demanding in tone. She further stated the person wore gloves and made a gesture like the person could have a weapon. The person's gloved hand touched Ries's nose a couple times.

Ries did not see a weapon, but did not know if the person had one. She testified she was scared because the person could have had a hidden weapon. Ries stated the suspect never threatened her, and the touching of her nose did not appear to be intentional. Ries did not hand over any bait money. The amount taken from the bank that day was $6852. Copenhaver was subsequently apprehended.

II. Proceedings.

On February 25, the State charged Copenhaver with two counts of robbery in the second degree in violation of Iowa Code sections 711.1 (2009) and 711.3 and one count of theft in the second degree in violation of Iowa Code sections 714.1 and 714.2. Copenhaver filed a motion for adjudication of law points. Copenhaver argued the two counts of robbery should have been charged as a single offense. The court denied the motion. At trial, the jury found Copenhaver guilty on all three counts. The trial court sentenced Copenhaver to two consecutive ten year terms on each of the robbery charges and a concurrent five year term on the theft charge.

Copenhaver filed a notice of appeal. We transferred the case to our court of appeals. The court of appeals affirmed Copenhaver's convictions. We granted further review.

III. Issues.

Copenhaver's counsel raised two issues in his brief: whether the district court imposed an illegal sentence by failing to combine the two convictions for robbery in the second degree into a single count, and whether the district court erred in finding there was substantial evidence for the jury to find Copenhaver committed assaults against each bank teller. In his pro se brief, Copenhaver raised additional issues.

When deciding a case on further review, “we have the discretion to review all or some of the issues raised on appeal.” State v. Clay, 824 N.W.2d 488, 494 (Iowa 2012). In exercising our discretion, we choose only to review the issues raised by Copenhaver's counsel in counsel's original brief. Accordingly, the court of appeals decision will be our final decision on the issues Copenhaver raised in his pro se brief.

IV. Whether the District Court Imposed an Illegal Sentence By Failing to Combine the Two Convictions for Robbery in the Second Degree into a Single Count.

Copenhaver frames this issue in his brief as an issue of merger. He argues the failure to merge the two robbery convictions into one offense violates the Double Jeopardy Clause of the United States Constitution. ¹ This argument is misplaced. The defendant in State v. Ross made the same argument. 845 N.W.2d 692, 701 (Iowa 2014). We have limited our merger doctrine to double jeopardy claims involving lesser-included offenses. Id. at 701. Accordingly, we recognize Copenhaver as using the word “merger” in his brief in its general definition of “[t]he act or an instance of combining or uniting” to ask us to combine his convictions. See Black's Law Dictionary 1078 (9th ed.2009).

An illegal sentence is a sentence that is not permitted by statute. State v. Woody, 613 N.W.2d 215, 217 (Iowa 2000). If the legislature criminalizes two separate and distinct acts, separate sentences on each act are not illegal. State v. Jacobs, 607 N.W.2d 679, 688 (Iowa 2000). Another way to ask what conduct the legislature criminalized is to ask what unit of prosecution the legislature intended in enacting the statute. Therefore, the first step in our analysis is to determine the legislature's intent for the unit of prosecution for Iowa Code section 711.1. See Ross, 845 N.W.2d at 702.

A. Unit of Prosecution for Robbery. Determining legislative intent raises issues of statutory interpretation; thus, our review is for correction of errors at law. State v. Allen, 708 N.W.2d 361, 365 (Iowa 2006).

The robbery statute in pertinent part provides:

A person commits a robbery when, having the intent to commit a theft, the person does any of the following acts to assist or further the commission of the intended theft or the person's escape from the scene thereof with or without the stolen property:

1. Commits an assault upon another.

2. Threatens another with or purposely puts another in fear of immediate serious injury.

3. Threatens to commit immediately any forcible felony.

Iowa Code § 711.1. Thus, the legislature has defined the unit of prosecution for robbery based upon the actions of the defendant.

The first element relevant to the facts of this case requires the defendant to have the intent to commit a theft. The Code defines theft as “when the person ... [t]akes possession or control of the property of another, or property in the possession of another, with the intent to deprive the other thereof.” Id. § 714.1. The second element of robbery requires the defendant to do

any of the following acts to assist or further the commission of the intended theft ...:

1. Commit[ ] an assault upon another.

2. Threaten[ ] another with or purposely put[ ] another in fear of immediate serious injury.

3. Threaten[ ] to commit immediately any forcible felony.

Id. § 711.1 (emphasis added). If the State can prove these two elements beyond a reasonable doubt, the defendant has committed the crime of robbery.

The parties disagree on the proper interpretation of the word “any” in the statute. Copenhaver argues the use of the word “any” in the statute is plural and meeting any one or more of the three factors under Iowa Code section 711.1 constitutes only one offense; therefore, the number of assaults is not determinative as to whether there is more than one robbery. Copenhaver relies on State v. Kidd, 562 N.W.2d 764 (Iowa 1997). The State argues the use of the word “any” allows multiple offenses because we previously interpreted the word “any” to allow charges for multiple offenses in State v. Constable, 505 N.W.2d 473 (Iowa 1993).

In Kidd, the defendant possessed three sawed-off shotguns bundled together in his home, and the State charged him with three separate counts of unauthorized possession of an offensive weapon. 562 N.W.2d at 764–65. The relevant statute prohibited the knowing “possess[ion of] an offensive weapon.” Id. at 765 (quoting Iowa Code § 724.3 (1995)). We analyzed the use of the word “an” in the statute and determined the ordinary meaning referred to possession of a single weapon. Id. Thus, we found the possession of each weapon to be a separate offense. Id. at 765–66. In reaching this conclusion, we cited United...