State v. Folck
| Decision Date | 27 October 1982 |
| Docket Number | No. 66672,66672 |
| Citation | 325 N.W.2d 368 |
| Parties | STATE of Iowa, Appellee, v. Donald Ray FOLCK, Appellant. |
| Court | Iowa Supreme Court |
G. Steven Walters of Webster, Jordan, Oliver & Walters, Winterset, for appellant.
Thomas J. Miller, Atty. Gen., Shirley Ann Steffe, Asst. Atty. Gen., and John W. Criswell, County Atty., for appellee.
Considered by REYNOLDSON, C.J., and LeGRAND, UHLENHOPP, HARRIS and LARSON, JJ.
This is a consolidated appeal from judgment imposed by the trial court following defendant's conviction of the crimes of kidnapping in the first degree and sexual abuse in the third degree and from an order denying postconviction relief. We affirm defendant's conviction and sentence for kidnapping, and we affirm the denial of postconviction relief. We reverse the conviction and sentence on the charge of sexual abuse.
Early on the evening of November 19, 1980, two young women, Nora Sakellariou and Cara Griffo, were hitchhiking in Des Moines when the defendant and his half-brother offered them a ride. During the next two hours, the four drove around the area, stopping at a number of places, including two bars. All four were drinking beer. Finally defendant stopped at a country store, where he purchased more beer. Until that time the association of the four was entirely voluntary. However, when they left the country store, defendant turned the car away from the city and drove down a secluded gravel road between two corn fields. At this time the two women became apprehensive and asked to be either let out or taken home.
In response to these requests, defendant turned "really nasty." He swore at the two girls, called them sluts and miserable bitches, and said,
After driving for an additional ten minutes, defendant stopped the car on a gravel road. Both women attempted to escape. Defendant prevented one from leaving by grabbing her around the neck. The other, unwilling to abandon her friend, remained in the car.
Defendant ordered Nora to the front seat, told her to undress, and demanded that she perform fellatio upon him. When she resisted defendant said, "You bitch, you better do what I say or else I will kill you." Nora then complied. She was also forced to lie down on the front seat and to engage in sexual intercourse with defendant. Within a few minutes, defendant again required Nora to engage in sexual intercourse.
After these various assaults were complete, Nora was allowed to dress. Defendant drove her and her companion back to town and dropped them off at a downtown intersection. Nora spotted a police car and reported the assaults to two police officers. This was at approximately 11:30 P.M., about two hours after leaving the country store, the last stop before defendant drove out into the country. The police officers described both Nora and Cara as hysterical.
At trial defendant asserted an alibi defense. According to his testimony, corroborated by his half-brother, and by the testimony of two friends, defendant had dropped the two girls off at a gas station around 9:00 P.M. Defendant claimed he did not see them after that time. The alibi testimony proved unpersuasive, and defendant was convicted of both kidnapping in the first degree and sexual abuse in the third degree. Other facts will be related where pertinent to the issues discussed.
Kidnapping is defined in section 710.1, The Code 1979, in pertinent part as follows:
A person commits kidnapping when he or she either confines a person or removes a person from one place to another, knowing that he or she has neither the authority nor the consent of the other to do so; provided, that to constitute kidnapping the act must be accompanied by one or more of the following:
(3) the intent to ... subject the person to a sexual abuse.
Under section 710.2, kidnapping becomes kidnapping in the first degree "when the person kidnapped, as a consequence of the kidnapping ... is intentionally subjected to torture or sexual abuse ...."
Defendant claims there was insufficient evidence to make a jury case on the elements of confinement or removal. He argues that the State should not be permitted to tack a kidnapping charge on what is essentially a sex abuse case and that the evidence which the State relied on to prove kidnapping describes conduct which was merely incidental to the acts of sexual abuse.
As already mentioned, the association of the parties was entirely voluntary until leaving the country store. If kidnapping occurred, it was after that time. After leaving the country store, defendant drove to a secluded spot on a country road shielded from view by cornfields on each side. He refused Nora's requests to be released or taken home. He insulted her and threatened her with violence. Then she sought to escape, he restrained her by force and repeated--and intensified--his threats.
Not every incidental confinement or every trivial movement from one place to another warrants a kidnapping conviction. State v. Mead, 318 N.W.2d 440, 444 (Iowa 1982); State v. Marr, 316 N.W.2d 176, 179 (Iowa 1982). We delineated the rules for determining if the evidence is sufficient for this purpose in State v. Rich, 305 N.W.2d 739, 745 (Iowa 1981) as follows:
1. No minimum period of confinement of distance of removal is required for conviction of kidnapping.
2. The period of confinement or distance of removal must exceed what is normally incidental to the commission of sexual abuse.
3. The confinement or removal must have significance independent from the act of sexual abuse itself in one of the following ways:
a. Substantially increase the risk of harm to the victim.
b. Significantly lessen the risk of detection, or
c. Significantly facilitate escape following the consummation of the sex abuse offense.
See also State v. Knupp, 310 N.W.2d 179, 182-83 (Iowa 1981), analyzing the circumstances which amount to sufficient confinement and removal to constitute kidnapping. Other cases bearing on this matter include State v. Bruns, 304 N.W.2d 217, 218 (Iowa 1981); State v. Holderness, 301 N.W.2d 733, 740 (Iowa 1981); State v. Stevens, 289 N.W.2d 592, 593-94 (Iowa 1980); State v. Steltzer, 288 N.W.2d 557, 558 (Iowa 1980); State v. Rinehart, 283 N.W.2d 319, 320 (Iowa 1979).
Taking the evidence in the most favorable light for the State, we hold there was a jury question on the issue. The confinement of the complaining witness extended over a period of several hours. She was taken to a secluded spot where detection was unlikely. The remoteness of the place where the attack took place substantially increased the risk of harm if she sought to defend herself or to escape. This was not the type of confinement or removal which is merely incidental to the act of sexual abuse.
On the last day of the trial the State called Jeanne Rocque as a witness. Defendant asserted error in permitting her to testify because the State had neither filed minutes of her testimony pursuant to Iowa R.Crim.P. 5(3) nor complied with the notice provisions of Iowa R.Crim.P. 10(10)(a). Defendant also insists this violated his rights under the United States Constitution, amendments V and XIV, and the Iowa Constitution, Art. I, § 9.
Defendant's whole theory, including the constitutional argument, is based on State v. Walton, 228 N.W.2d 21, 25 (Iowa 1975), which deals solely with rebuttal of alibi testimony. The trial court correctly ruled that the testimony of Jeanne Rocque was not used to rebut defendant's alibi. She testified only to prior sexual acts with the defendant and his half-brother to refute matters they had previously testified about. This was proper rebuttal testimony, but it was not alibi rebuttal testimony. The names of rebuttal witnesses need not be listed on the information. State v. Bakker, 262 N.W.2d 538, 543-44 (Iowa 1978). Neither are such witnesses subject to Iowa R.Crim.P. 5(3) or 10(10)(a). Under these circumstances, Walton does not support defendant's position and the constitutional provisions relied on are not applicable.
One basis for this appeal is defendant's assertion of jury misconduct in two areas. First, he says that the jury "improperly received and considered information supplied from a juror's own knowledge." He also claims the jury was "exposed to a number of extraordinary and improper influences and followed a number of extraordinary and improper practices."
Trials are to be decided on facts produced in court under rules of evidence and subject to cross-examination. Consideration of matters outside the record may, under certain circumstances, require a new trial. Iowa R.Crim.P. 23(2)(b)(2); Kalianov v. Darland, 252 N.W.2d 732, 737 (Iowa 1977).
Defendant asserts three instances in which the jury violated this principle. First, defendant says one of the jurors supplied the jury with information concerning the place where Ann Jacobus, one of defendant's alibi witnesses, lived. He attaches great importance to this on the issue of the time and place defendant picked complainant and her companion up.
He also complains about statements by a juror regarding the location of a shelter house in St. Charles Park, a place where defendant testified he had intercourse with a young lady shortly before the events here in question. The purpose of this evidence was to explain semen stains found on the front seat of defendant's car and to refute the State's contention that these stains were related to the sexual abuse practiced upon the complainant.
The third item concerns the statement of a juror that patrons of "Another World Bar" were not people to be believed.
These matters were brought to the attention of the court by the affidavits of several jurors. Much, but not all, of the...
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