State v. Doughty

• Decision Date: 19 December 1984
• Docket Number: No. 83-1275,83-1275
• Citation: 359 N.W.2d 439
• Parties: STATE of Iowa, Appellee, v. Ralph Laverne DOUGHTY, Appellant.
• Court: Iowa Supreme Court

Page 439

359 N.W.2d 439

STATE of Iowa, Appellee, v. Ralph Laverne DOUGHTY, Appellant.

No. 83-1275.

Supreme Court of Iowa.

Dec. 19, 1984.

Charles L. Harrington, Appellate Defender, and Raymond E. Rogers, Asst. Appellate Defender, Des Moines, for appellant.

Thomas J. Miller, Atty. Gen., Sherie Barnett, Asst. Atty. Gen., and William E. Davis, County Atty., for appellee.

Considered by REYNOLDSON, C.J., and McCORMICK, LARSON, SCHULTZ, and CARTER, JJ.

LARSON, Justice.

Defendant Ralph L. Doughty appeals from his conviction and sentencing for kidnapping in the first degree in violation of Iowa Code sections 710.1 and 710.2 (1983). He argues the following grounds for reversal: (1) that the testimony of a police officer, reiterating statements made by the five-year-old victim, was hearsay and inadmissible; (2) that the instructions did not inform the jury that specific, as opposed to general, intent was necessary to support a conviction for first-degree kidnapping; (3) that the court failed to instruct the jury that the removal or confinement required must exceed that normally incident to the commission of sexual abuse; and (4) that a life sentence for first-degree kidnapping is unconstitutional as cruel and unusual punishment. We reverse and remand on the third issue.

The record reveals the following facts. The five-year-old victim had ridden a school bus to school in Davenport. While standing in front of the school, he was approached by a man who asked him to search for a lost dog, promising him money in return. The victim testified that he and the defendant went to a garage, where, at defendant's request, the child took down his pants. From that point, the two walked to a Davenport hotel where the defendant sexually abused him. The child testified that he drank a "Pepsi and a liquor" while in the hotel room and later fell asleep. When he awoke, the defendant dressed him and took him to the street where he inquired if the child knew his way back to school. The child said he did and walked off on his own in the direction of the school. The victim was spotted by a Davenport police officer who had been alerted to look for the young boy. The officer stopped his vehicle and talked to the victim. The child related that he had been taken to an "older gentleman's apartment" and related the details of the sexual abuse.

The officer put the child in the car and began to transport him back to the station when the child stated that he could take the officer to the place where "the man had taken him." During the ride back to the hotel, the child related, in response to questions by the officer, further details of the incident.

I. The law provides that a person commits the crime of kidnapping when, knowing he has neither the authority nor the consent of a person, confines or removes that person from one place to another for certain purposes, including sexual abuse. Iowa Code § 710.1 (1983); Uniform Instruction 1002. Kidnapping in the first degree occurs when, as a consequence of the kidnapping, the victim is intentionally subjected to sexual abuse. Iowa Code § 710.2 (1983). No statute defines "confined" or "removed" as used in the kidnapping statutes.

In State v. Rich, 305 N.W.2d 739 (Iowa 1981), we held that the confinement or removal necessary for kidnapping required more than that which is merely incident to the attendant sexual abuse. "Such confinement or removal may exist because it substantially increases the risk of harm to the victim, significantly lessens the risk of detection or significantly facilitates escape following the consummation of the offense." Rich, 305 N.W.2d at 745. See State v. Knupp, 310 N.W.2d 179 (Iowa 1981) (victim pulled into car, driven to an oil company parking lot where she was struck several times and forced to participate in a sexual act; held confinement not merely incidental to the commission of the crime of sexual abuse); State v. Marr, 316 N.W.2d 176 (Iowa 1982) (victim shoved around corner of building, by which she was standing, ten to fifteen feet into a gangway; held this was confinement incident to sexual abuse and therefore not kidnapping).

In Rich, we noted the importance of the confinement element:

Although the plain language of section 710.1 appears to encompass the usual case of sexual abuse, in which some movement or confinement occurs, a literal interpretation of the statutory language would not be sensible or just. We therefore believe that because of the substantial disparity between sentences the legislature intended the kidnapping statute to be applicable only to those situations in which confinement or removal definitely exceeds that which was merely incidental to the commission of sexual abuse.

Rich, 305 N.W.2d at 745. We adhered to this rule of Rich in our recent case of State v. Hardin, 359 N.W.2d 185, 189 (Iowa 1984).

The trial court, in this case, instructed on the issue of confinement as follows:

INSTRUCTION 9

A person is "confined" when his freedom to move about is substantially restricted by force, threat or deception. He may be confined either in a place where the restriction commences or in a place to which he has been removed. The confinement need not exist for any particular length of time, as long as it is for the purpose of restricting the person's freedom to move about.

This instruction followed Uniform Instruction 1007 as it existed prior to Rich. (Present Uniform Instruction 1007, which had been promulgated prior to the trial of this case, incorporates the requirements of Rich.)

While we do not agree with the defendant's argument that the court was required to define confinement or removal within the marshalling instruction, State v. Hatter, 342 N.W.2d 851, 858 (Iowa 1983), we believe he was entitled to the submission of an instruction pointing out the removal or confinement necessary for first-degree kidnapping. It was not enough, as the State suggests, that the jurors could have inferred this from instruction nine.

The State argues that, even if it were error to refuse an instruction along the lines of Rich, the error...