State v. Geier

• Decision Date: 15 April 1992
• Docket Number: No. 91-237,91-237
• Parties: STATE of Iowa, Appellee, v. Carl Edward GEIER, Appellant.
• Court: Iowa Supreme Court

Page 167

484 N.W.2d 167

STATE of Iowa, Appellee, v. Carl Edward GEIER, Appellant.

No. 91-237.

Supreme Court of Iowa.

April 15, 1992.

Linda Del Gallo, State Appellate Defender, and Andi S. Lipman, Asst. State Appellate Defender, for appellant.

Bonnie J. Campbell, Atty. Gen., Bruce Kempkes, Asst. Atty. Gen., and Paul M. Goldsmith, County Attorney, for appellee.

Considered by HARRIS, P.J., and LARSON, LAVORATO, NEUMAN, and SNELL, JJ.

SNELL, Justice.

Appellant, Carl Edward Geier, appeals the judgment and sentence entered upon his convictions for Going Armed with Intent, Assault with Intent to Commit Sexual Abuse, Indecent Exposure, and Theft in the Third Degree, in violation of Iowa Code sections 708.8, 709.11, 709.9, and 714.1(4) (1989), respectively. Geier contends that the district court erred in finding that a stun gun is a "dangerous weapon" for purposes of the offense, going armed with intent, and in failing to sever the theft counts from the remaining charges in the trial information. We conclude that the district court's decision with respect to these two matters was sound and, therefore, affirm.

The evidence relevant to the two issues before us is undisputed. On the morning of May 5, 1990, the victim, T.M., was walking her two dogs on a wooded nature trail near Highway 34 in Chariton, Iowa. As she approached the portion of the trail which led under the highway overpass, she noticed a car parked near the bridge and a man walking along a nearby stream. The man began walking toward T.M. causing her to become nervous and to remove a pen knife from a pouch on her belt. As she began to turn around to return home, the man, later identified as Geier, began jogging toward her.

T.M. indicated that as she turned around to face Geier, he reached into the pocket of his jacket and retrieved a stun gun. She responded by displaying her knife and asked Geier what he wanted. T.M. testified that Geier responded by asking her what she was "doing out there." She instructed Geier to leave her alone, but he ignored her request and began walking toward her. As she backed away, T.M. released the smaller of her two dogs. The smaller dog jumped at Geier and began to bark. Geier responded by pointing the stun gun at the dog and generated a clicking noise, which caused the dog to retreat.

T.M. testified that Geier then "opened his trousers across his hips," and exposed his genitals. She then brandished her pen knife and proceeded to back away, but Geier continued to walk toward her. According to T.M., Geier, without explanation, then became quiet, fastened his pants, and walked past her to the car that was parked near the overpass. After passing T.M., however, Geier turned around and proceeded to again approach her with his pants open and his genitals exposed.

T.M. testified that Geier then directed the stun gun at her, which made a clicking sound as it came in contact with her upper arm. However, apparently because she was wearing a specially treated Army jacket at the time, T.M. indicated that she did not experience any incapacitation or pain from the incident. As Geier was discharging the stun gun on T.M.'s arm, she "swung around with [her] knife and stabbed him in the shoulder"; T.M. stated that she then fled to the highway to summon help.

A passing motorist, Allen Sellers, testified that he came upon T.M. on the highway and stopped to assist her. Sellers indicated that T.M. was hysterical but managed to recount the details of her attack, including the fact that she believed that a green Pontiac Grand Prix parked near the overpass belonged to her assailant. Sellers wrote down the license plate of the vehicle, which was later found to be registered to Geier. After directing T.M. to stay at a nearby restaurant with her dogs, Sellers drove to the "Law Center" and summoned officers to the scene.

After obtaining a description from T.M. of her assailant and his vehicle, police officers detained a motorist matching the description driving east on Highway 34. The driver of the vehicle was the appellant, Geier, whom T.M. later identified as her assailant. Geier was then arrested.

Deputy Herbert Muir testified that at the time of Geier's arrest, he was wearing a jacket with a small hole in the shoulder area and that the zipper of Geier's pants was open. Deputy Muir also indicated that a stun gun was found inside Geier's car.

After Geier's arrest, Deputy Roy Brereton noticed a large boat motor and trolling motor in the back seat of Geier's vehicle. Deputy Brereton also observed several tools, including a pair of cutting pliers, screwdriver, and regular pliers on the floor of Geier's car. After obtaining a search warrant, a thorough search of Geier's car was conducted. The officers discovered that the two motors in Geier's vehicle matched the description of two motors that had been reported stolen the previous night.

As a consequence of the foregoing events, Geier was charged with the multiple offenses stated. At trial, James Quistorff testified that he was the owner of the Mercury boat motor and trolling motor found by Deputy Brereton. Quistorff indicated that he was attempting to sell the motors and had them padlocked to a boat in his front yard. Quistorff stated that the chain securing the motors had been cut and that the motors were missing as of May 4, 1990. At the time of trial, Quistorff had sold the trolling motor for thirty-five dollars; the larger motor had not been sold but Quistorff had received an offer of $450 for it.

After considering the testimony related above, the court, ruling from the bench, found Geier guilty of assault with intent to commit sexual abuse (Count I), theft in the third degree (Count II), going armed with intent (Count III), and indecent exposure (Count V). Geier was committed to the custody of the Director of the Iowa Department of Corrections for a term of imprisonment not to exceed two years on count one, two years on count two, five years on count three, and one year on count five; the district court ordered that the sentences for the misdemeanor offenses of assault, theft, and indecent exposure run consecutively, with the sentence for the felony conviction of going armed with intent to run concurrently.

Geier challenges his convictions on two grounds. First, he argues that the district court improperly found the stun gun to be a "dangerous weapon" for purposes of the going-armed-with-intent conviction. Secondly, Geier maintains that the district court improperly refused to sever the theft count from the remaining charges in violation of Iowa Rule of Criminal Procedure 6(1).

I. The Stun Gun as a Dangerous Weapon.

Iowa Code section 708.8, which defines the crime of going armed with intent, provides as follows:

A person who goes armed with any dangerous weapon with the intent to use without justification such weapon against the person of another commits a class "D" felony.

Iowa Code § 708.8 (1991) (emphasis added). A dangerous weapon is defined in Iowa Code section 702.7 as follows:

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 the 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, switchblade knife, or knife having a blade exceeding five inches in length.

Iowa Code § 702.7 (1991).

Geier contends that the district court did not have before it sufficient evidence to support a finding that a stun gun is a "dangerous weapon," as defined in Iowa Code section 702.7, and claims to have preserved this asserted error by way of his motion for judgment of acquittal made at the close of the State's case in chief. However, the motion for acquittal made no reference to any evidentiary insufficiency concerning the stun gun or its characterization as a "dangerous weapon." In fact, Geier did not raise the issue presently before us until after the trial had concluded, at which time the argument presented herein was raised in the context of a new-trial motion.

We note that as a general matter, "[t]he grounds of a motion for new trial must stand or fall on exceptions taken at trial and a party cannot in a post verdict motion amplify or add new grounds as a basis for relief." State v. Droste, 232 N.W.2d 483, 488 (Iowa 1975); Dunahoo and Thomas, Preservation of Error and Making the Record in the Iowa Criminal Trial and Appellate Processes, 36 Drake L.Rev. 45, 84 (1986-87). However, we need not rest our resolution of this issue on the principles of error preservation insofar as we conclude that Geier's argument fails on the merits.

A motion for judgment of acquittal is to be granted whenever "the evidence is insufficient to sustain a conviction" for the charged offense. Iowa R.Crim.P. 18(8)(a). As a reviewing court, we view the evidence in the light most favorable to the prosecution and will draw any reasonable inferences therefrom necessary to support the conviction. State v. Dallen, 452 N.W.2d 398, 399 (Iowa 1990); State v. White, 223 N.W.2d 163, 164 (Iowa 1974). To successfully resist a motion for acquittal, the State must have presented "such evidence as could convince a rational trier of fact that the defendant is guilty of the crime charged beyond a reasonable doubt.... It is sufficient to raise a fair inference of guilt as to each essential element of the crime although the evidence must do more than raise suspicion, speculation or conjecture." State v. LaPointe, 418 N.W.2d 49, 51 (Iowa 1988); see also State v. Davis, 229...