State v. Copenhaver

• Decision Date: 15 May 2013
• Docket Number: No. 11–1616.,11–1616.
• Citation: 834 N.W.2d 870
• Parties: STATE of Iowa, Plaintiff–Appellee, v. Randy Mitchell COPENHAVER, Defendant–Appellant.
• Court: Iowa Court of Appeals

834 N.W.2d 870

STATE of Iowa, Plaintiff–Appellee,

v.Randy Mitchell COPENHAVER, Defendant–Appellant.

No. 11–1616.

Court of Appeals of Iowa.

May 15, 2013.

Appeal from the Iowa District Court for Linn County, Sean W. McPartland (motion for adjudication of law points) and Mitchell E. Turner (trial and sentencing), Judges.

A defendant appeals his conviction of two counts of robbery in the second degree and one count of theft in the second degree. AFFIRMED.

Randy Mitchell Copenhaver, Anamosa, appellant pro se.

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

Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, and Jerry Vander Sanden, County Attorney, for appellee.

Considered by VOGEL, P.J., and DANILSON and MULLINS, JJ.

VOGEL, P.J.

Defendant, Randy Copenhaver, appeals from the judgment and sentences on the jury's verdicts of guilty to robbery in the second degree (two counts), in violation of Iowa Code sections 711.1 and 711.3 (2009), and theft in the second degree, in violation of Iowa Code section 714.1(1) and 714.2(2). He argues that the two counts of robbery should have merged into a single offense and there was not sufficient evidence to prove the assault element of robbery. Copenhaver also makes multiple pro se arguments.

I. Background Facts and Proceedings

A reasonable juror could have found the following facts as true: around three o'clock in the afternoon on February 11, 2010, a man who identified himself as Copenhaver went to Vernon Heights Auto, a car dealership, and asked to test drive a reddish-colored Chevy Tahoe. The dealership employee made a copy of Copenhaver's driver's license and allowed Copenhaver to test drive the vehicle.

A Community Savings Bank branch office was approximately 1.1 miles from the auto dealership. Shortly after three o'clock a masked man entered the bank, walked up to a teller, handed her a note that informed her he was robbing the bank, and demanded large denomination bills. He repeated his demands orally. The teller, frightened but composed, complied and handed the man the money in her till drawer. The man told her to “keep it coming.” A second teller approached and watched what was transpiring. When the first teller had emptied her till drawer, the man moved over to the second teller's window, swore at her, and demanded she give him the money in her drawer. She complied and the man left, but only after a bank officer observed a reddish-colored SUV without a license plate in the parking lot.

After approximately fifteen minutes, Copenhaver returned with the vehicle to the Vernon Heights Auto lot. He told the salesperson that he liked the vehicle and wanted to show it to his wife. Copenhaver drove off again and returned approximately forty minutes later. Copenhaver returned the vehicle for the second time and told the salesperson that he would come back the next day to pay for the vehicle. He then left the dealership with another customer.

Shortly thereafter the police, who had been alerted to the details of the robbery, located a reddish Tahoe at Vernon Heights Auto. The bank officer was transported to the auto lot to view the vehicle, which he identified as the vehicle he had seen at the bank. From information supplied by the staff at the auto lot, the police learned the man who had test-driven the vehicle had identified himself as Copenhaver.

Copenhaver was arrested on February 12, 2010, taken to the police station, and interviewed about the incident at the bank. On February 25 the State filed a multi-count trial information charging Copenhaver with robbery in the second degree (two counts), in violation of Iowa Code sections 711.1 and 711.3, and theft in the second degree, in violation of Iowa Code section 714.1(1) and 714.2(2). On February 24, 2011, Copenhaver filed a motion for adjudication of law points arguing that two counts of robbery should merge into a single offense. The motion was denied. After a jury trial, Copenhaver was found guilty on all charges on July 28, 2011. He was sentenced to two consecutive terms of imprisonment of ten years on each robbery conviction and a concurrent term of five years on the theft conviction. Copenhaver appeals.

II. Merger

Copenhaver argues both through counsel and pro se that the district court imposed an illegal sentence by violating the double jeopardy clause of the United States and Iowa constitutions when it failed to merge the two robbery offenses into one offense. Although we have discretion to consider a different standard under our state constitution, neither party suggests a different analysis or offers any reasons for a separate analysis. See State v. Dewitt, 811 N .W.2d 460, 467 (Iowa 2012). We accordingly decline to consider a different state standard under the circumstances and resolve Copenhaver's state and federal double jeopardy claims under the existing federal standards. Illegal sentences are reviewed for corrections of errors at law. State v. Davis. 544 N.W.2d 453, 455 (Iowa 1996). To the extent that Copenhaver is making a constitutional double jeopardy claim, our review is de novo. State v. Finnel, 515 N.W.2d 41, 43 (Iowa 1994).

The Double Jeopardy Clause of the United States Constitution's Fifth Amendment provides that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” U.S. Const. Amend. V. The clause is binding on the states through the 14th Amendment. Benton v. Maryland, 395 U.S. 784, 794 (1969). It prohibits, among other things, the imposition of multiple punishments on a defendant for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717 (1969).

The State contends the double jeopardy clause does not prohibit the State from filing multiple charges from the same episode where two or more acts occur separately and constitute distinct offenses. See State v. Schmitz, 610 N.W.2d 514, 516 (Iowa 2000). Copenhaver argues that while the confrontations with two separate bank tellers could be charged as two separate assaults, there was only one victim of the robbery—the property owner—the bank. Copenhaver also argues that the two possible assaults were part of one continuous act to warrant only one charge and one conviction rather than separate acts supporting two charges and two convictions.

When multiple punishments are imposed in a single prosecution, the court's ability to impose multiple punishments is limited to what the legislature intended. State v. Reed, 618 N.W.2d 327, 336 (Iowa 2000). Multiple punishments may be imposed where the convictions and sentences are based on distinct acts. State v. Jacobs, 607 N.W.2d 679, 688 (Iowa 2000). In such cases the underlying charges merely allege the same kind of conduct, and no double jeopardy problem is presented. Schmitz, 610 N.W.2d at 517. However, when multiple charges are actually based upon the same conduct, only one punishment is authorized. Id.

The question of how many convictions are lawful under a statute rests with legislative intent, with any ambiguity as to intent resolved in favor of the accused. State v. Wells, 629 N.W.2d 346, 353 (Iowa 2001). In determining legislative intent for a unit of prosecution, we turn first to the plain words of the statute. State v. Velez, ––– N.W.2d ––––, 213 WL 1497308, at *12–13 (Iowa 2013). Iowa Code section 711.1 defines robbery as follows:

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.

The question before us is whether Iowa Code section 711.1, defining robbery, contains explicit language that would compel the conclusion that a crime like this was intended to be charged as one continuous crime rather than two separate acts. Copenhaver relies on State v. Kidd, for the proposition that the term “any” in Iowa Code section 711.1 signifies plural acts, as opposed to “an” being construed as singular. 562 N.W.2d 764, 765 (Iowa 1997). He argues that based on this finding in Kidd, any number of acts satisfying the three factors elevating an action done with the intent to commit theft to a robbery would still only amount to one robbery charge. “A person commits a robbery when having the intent to commit a theft, the person does any of the following acts....” Iowa Code § 711.1 However, we agree with the district court that better language guidance comes from State v. Constable, 505 N.W.2d 473, 477–78 (Iowa 1993).

In Constable, the defendant argued he should not have been convicted of five counts of sexual abuse under Iowa Code section 709 .1, because there were only two victims. Iowa Code section 702.17 defines a sex act as “any sexual contact between two or more persons” and then lists various types of contact. Iowa Code § 702.17. The court in Constable found:

Constable engaged in five distinct acts of physical contact; each contact alone met the definition of “sex act” and each contact alone would be sufficient to charge Constable with one count of sexual abuse. It follows logically that by engaging in five distinct and separate sex acts, Constable committed five counts of sexual abuse.

Constable, 505 N.W.2d at 478. The Constable court found “any” act was meant to be singular and therefore, because he committed five of the “any sex act” variables, he was properly found guilty of five counts of sex abuse. Id.

As in Constable, the statute at issue proscribes “any” act in the list of variable elements of robbery—assault upon another, threats of immediate serious injury, or threats of a forcible felony. Here, Copenhaver may have initially had only one intent to commit a theft—the theft of the bank's money....