State v. Franklin

• Citation: 368 N.W.2d 716
• Decision Date: 22 May 1985
• Docket Number: No. 84-835,84-835
• Parties: STATE of Iowa, Appellee, v. John Burton FRANKLIN, Appellant.
• Court: Iowa Supreme Court

Page 716

368 N.W.2d 716

STATE of Iowa, Appellee, v. John Burton FRANKLIN, Appellant.

No. 84-835.

Supreme Court of Iowa.

May 22, 1985.

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

Thomas J. Miller, Atty. Gen., Roxann M. Ryan, Asst. Atty. Gen., and Dan L. Johnston, Co. Atty., for appellee.

Considered by REYNOLDSON, C.J., and UHLENHOPP, HARRIS, LARSON and CARTER, JJ.

HARRIS, Justice.

Defendant lists five assignments of error in this appeal from his conviction of first-degree burglary. Iowa Code §§ 713.1 and 713.3 (1983). We find no reversible error and affirm.

On October 25, 1983, Catherine and Douglas Darby lived with their children in a first-floor apartment in Des Moines. At about 10:00 that evening Catherine heard a knock at an outside security door which entered a common hallway which served the apartment building. Entering the hallway, she turned off a light and looked through a window. She saw a group of about four, perhaps five, men waiting and recognized one of them, Dennis Kinney. Kinney asked Catherine if her husband were home.

Catherine flipped the lock on the security door but did not open it. She said, "Just a moment," and went to tell her husband they had company. Uninvited, the group followed her into the apartment. At this point Catherine also recognized defendant in the group. She did not know the others.

When Catherine went to the bedroom where her husband was asleep, some of the group, including defendant and Kinney, followed her. Douglas was still in his bed. Kinney, who seems to have been principal spokesman for the group, angrily accused Douglas, in Douglas' words, of "trying to have him [Kinney] set up, [that is] to have a fellow that he [Kinney] had a long-standing argument with--to do bodily harm to him...."

When Douglas denied the accusation, Kinney kicked him in the neck. Catherine tried to intercede and was forcibly removed from the bedroom. Kinney determined to rob Douglas of all weapons, money, and drugs from the house. An altercation followed. During a period when defendant was absent from the bedroom Douglas was severely beaten.

Defendant participated in the general ransacking of the apartment and the collecting of weapons and while doing so grabbed a machete. He then waved it around in a threatening manner in front of Catherine, Douglas, and their twelve-year old son and, according to Douglas, "told me in so many words that if I didn't shut up he was going to use the machete on me."

Eventually the weapons were piled up onto a blanket the group had gathered up and spread on the floor. In testifying of the weapons, Catherine listed the machete as one of them.

Defendant was tried before a jury which convicted him of first-degree burglary. We quote the three sections that make up the charge:

Any person, having the intent to commit a felony, assault or theft therein, who, having no right, license or privilege to do so, enters an occupied structure or area enclosed in such a manner as to provide a place for the keeping of valuable property secure from theft or criminal mischief, such occupied structure or place not being open to the public, or who remains therein after it is closed to the public or after the person's right, license or privilege to be there has expired, or any person having such intent who breaks an occupied structure or other place where anything of value is kept, commits burglary.

Iowa Code § 713.1 (1983).

A person commits burglary in the first degree if, while perpetrating a burglary, the person has in his or her possession an explosive or incendiary device or material, or a dangerous weapon, or intentionally or recklessly inflicts physical injury on any person. Burglary in the first degree is a class "B" felony.

Iowa Code § 713.3.

Dangerous Weapon. A "Dangerous weapon" is any instrument or device designed primarily for use in inflicting death or injury upon a human being or animal, and which is capable of inflicting death upon a human being when used in a manner for which it was designed. Additionally, any instrument or device of any sort whatsoever which is actually used in such a manner as to indicate that the defendant intends to inflict death or serious injury upon the other, and which, when so used, is capable of inflicting death upon a human being, is a dangerous weapon. Dangerous weapons include, but are not limited to, any offensive weapon, pistol, revolver, or other firearm, dagger, razor, stiletto, or knife having a blade of three inches or longer in length.

Iowa Code § 702.7.

I. Defendant contends the State failed to present sufficient evidence to prove he did not have a "right, license, or privilege to enter the Darby residence." Lack of such right, license or privilege is an element of burglary which must be proven by the State. Iowa Code § 713.1. We must of course affirm on this assignment if there is substantial evidence in the record to support the elements of the offense. State v. Aldape, 307 N.W.2d 32, 39 (Iowa 1981). We explained the standard for reviewing the question in State v. Robinson, 288 N.W.2d 337, 339 (Iowa 1980).

Defendant relies on State v. King, 344 N.W.2d 562, 563 (Iowa Ct.App.1983) as authority for his contention there was no showing of this necessary element. In King the accused was welcomed into the home in question. A cordial gathering was changed later into a fight. Defendant presented somewhat similar facts here but the jury rejected them in favor of the State's far different version.

Catherine's trial testimony conflicted somewhat with her pretrial statement. The jury was nevertheless entitled to believe her trial version of the events according to which defendant and his friends rushed into her home when she went to get her husband. Soon afterwards they were beating him. This is substantial evidence of defendant's lack of right, license, or privilege to enter the home.

Defendant's challenge to the sufficiency is also based on a legal argument. He contends the lack of consent must exist at the precise time the building was entered. There are two flaws in the contention; it is wrong both factually and conceptually.

On the facts, as gathered from the testimony taken in the light most consistent with the verdict, defendant and his group entered the apartment uninvited after Catherine told them "Just a minute." The jury could gather their intent at that time from what was later said and from the violent conduct which followed.

Moreover, the burglary statute is not limited to persons who unlawfully enter a structure. Also included is a person "who remains therein after the person's right, license, or privilege to be there has expired...." § 713.1 Defendant's first assignment is without merit.

II. Defendant's second assignment turns on whether a machete is a dangerous weapon. The question arose on defendant's motion for directed verdict of acquittal. Defendant points out that a machete is not listed in the statutory definition of a dangerous weapon under Iowa Code section 702.7.

There was much testimony about the machete but the record is silent on its construction, design, or dimensions. The State expressly relied upon the machete as a dangerous weapon and defendant's possession of it in order to elevate the burglary to first-degree under section 713.3.

The State cites a dictionary definition of machete: "a large, heavy knife used for cutting sugar cane and underbrush and as a weapon." Webster's 9th New Collegiate Dictionary, p. 713 (1983). Support for the definition is also found in Wiborg v. United States, 163 U.S. 631, 16 S.Ct. 1127, 41 L.Ed. 289 (1896), in which the question was whether a group of sailors were on a military expedition. That question turned on whether they were equipped with weapons of war. Some of the items in question were machetes which the court described as follows:

It is unquestioned that the machete is used for both war and peace, it being described in the Century Dictionary as a "heavy knife or cutlass, used among Spanish colonists and Spanish-American countries, both as a tool and as a weapon," and by Webster as a "large, heavy knife, resembling a broad-sword, often two or three feet in length, used by the inhabitants of Spanish America as a hatchet to cut their way through thicket, and for various other purposes."

Id. at 636, 16 S.Ct. at 1129, 41 L.Ed. at 291.

There was no error in the trial court's refusal to direct defendant's...