State v. Grice

• Decision Date: 20 April 1994
• Docket Number: No. 93-953,93-953
• Citation: State v. Grice, 515 N.W.2d 20 (Iowa 1994)
• Parties: STATE of Iowa, Appellant, v. Annette E. GRICE, Appellee.
• Court: Iowa Supreme Court

Page 20

515 N.W.2d 20

STATE of Iowa, Appellant, v.Annette E. GRICE, Appellee.

No. 93-953.

Supreme Court of Iowa.

April 20, 1994.

Bonnie J. Campbell, Atty. Gen., Thomas S. Tauber, Asst. Atty. Gen., William E. Davis, County Atty., and Alan R. Havercamp, Asst. County Atty., for appellant.

Douglas C. Scovil of Ruud, Scovil & Marsh, Rock Island, IL, for appellee.

Considered by McGIVERIN, C.J., and LARSON, LAVORATO, NEUMAN, and ANDREASEN, JJ.

ANDREASEN, Justice.

The State appeals from a district court ruling granting defendant's motion for a judgment of acquittal at the close of the State's evidence.The court granted defendant's motion on the basis that there was a fatal variance between the charging instrument and the proof offered at trial.We granted the State's application for discretionary review and conclude the court erred in dismissing the charge against the defendant.

I.Background.

On February 6, 1990, the Scott County attorney's office filed a trial information charging Annette E. Grice with robbery in the second degree.The information provided:

The said Annette E. Grice on or about the 15th day of November, A.D., 1989, in the County of Scott, in State of Iowa:

Did commit Robbery in the Second Degree against Denise Johnston, in violation of Section 711.3 of the Code of Iowa.

The attached minutes of testimony incorporated police department investigative reports showing that the State's witnesses would testify that employees of a Davenport Hy-Vee Food Store apprehended Grice and an accomplice when they attempted to shoplift several cartons of cigarettes from the store.Hy-Vee employees, including Johnston, detained the women and escorted them to the office at the back of the store while one employee called the police.In an attempt to escape Grice struck Johnston over the head with a bottle of liquor.The employees were able to detain them until the police arrived.The police reports listed Kisha Humphries as the complainant and Denise Johnston as the victim.Both were identified as employees of Hy-Vee.

Evidence admitted at trial disclosed that Grice intended to steal cigarettes from the Hy-Vee store and that she struck Johnston over the head with a bottle of cognac while attempting to escape from the premises.Johnston received approximately twelve stitches to close the laceration to her scalp.There was no evidence indicating that Grice intended to steal anything belonging to Johnston.

Grice made a motion for a directed verdict of acquittal at the close of the State's evidence, claiming "that the State had failed to establish the elements necessary for robbery in that ... the facts as shown do not support the charge as set forth in the Information."SeeIowa R.Crim.P. 18(8)(a).Grice maintained that although the evidence may have established the elements of a robbery, the information apprised her that she only had to defend against a charge of robbery perpetrated against Johnston.

In resistance, the State argued that the information together with the minutes of testimony sufficiently alerted Grice to the details of the charge.The court agreed with the argument urged by Grice and entered a judgment of acquittal.

We granted discretionary review of the court's ruling for the guidance of the bench and bar.Iowa Code § 814.5(2)(d)(1993).Our review is for correction of errors.Iowa R.App.P. 4.

II.Robbery.

Robbery is defined in Iowa Code section 711.1(1989):

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.

On appeal the State argues the district court erred in ruling there was a fatal variance between the crime charged and the proof at trial.The gist of Grice's argument is that instead of identifying the victim of the intended theft, Hy-Vee, the State identified the victim of the assault, Johnston, in the information.Grice asserts that this omission made the information misleading and therefore prejudicial.The State contends that (1) there was no variance because it is appropriate to name the assault victim as the victim of the robbery, and (2) even if there was a variance, it was not prejudicial to the defendant.

Robbery as defined in section 711.1 is similar to robbery under the former law in that both the code and the former law are primarily concerned with the use of violence or the threat of violence as a means of accomplishing a theft....The code does not require that the intended theft be from the person.The code does not require that a theft be accomplished, but only that the assault or threats be made to assist the commission of an intended theft, or to assist the would be thief to escape the scene of the crime....There is no requirement that the threats or violence be directed at the person from whom the property will be stolen.The only requirement is that the threats or violence be done to assist or further the theft or escape from the scene of the crime.

4 John L. Yeager & Ronald L. Carlson, Iowa Practice§ 252, at 68-69(1979);see alsoState v. Boley, 456 N.W.2d 674, 679(Iowa1990), cert. denied, 498 U.S. 924, 111 S.Ct. 305, 112 L.Ed.2d 258(under section 711.1 there is no requirement that a theft actually be committed).Iowa Code section 711.1 is much less restrictive than the common-law definition of robbery.State v. Jordan, 409 N.W.2d 184, 185-86(Iowa1987).The statute expands "the time span in which the required assault or threat of physical violence can occur."Id.

III.Variance in Trial Information.

The purpose of an indictment or information is to apprise the defendant of the crime charged so that the defendant may have the opportunity to prepare a defense.State v. Willet, 305 N.W.2d 454, 457(Iowa1981);see alsoState v. Kirby, 391 N.W.2d 243, 245(Iowa1986).The requirement that the State"prove an offense in the manner charged is not an end in itself but merely a means of protecting a defendant from being misled by the charging instrument."Kirby, 391 N.W.2d at 245.

Generally an information need not detail the manner in which the offense was committed.SeeState v. Johnson, 162 N.W.2d 453, 455(Iowa1968);Iowa R.Crim.P. 4(7).If the State specifies one way of committing a crime, however, "the offense must be proved to have been committed in the way charged."Willet, 305 N.W.2d at 457.

In this case, the State accused Grice of second-degree robbery without specifying that it would prove a particular action that Grice took to further the intended theft or her escape from the premises.See, e.g., Willet, 305 N.W.2d at 456-57(defendant charged with third-degree sexual abuse by force or against the will of the victim, while proof at trial was based on the ages of the participants).Additionally, the information complied with our short form of indictment for robbery.Iowa R.Crim.P. 31, Form 10.We find no variance on this...