State v. Hatter
| Decision Date | 21 October 1987 |
| Docket Number | No. 86-1056,86-1056 |
| Citation | 414 N.W.2d 333 |
| Parties | STATE of Iowa, Appellee, v. Bruce Allen HATTER, Appellant. |
| Court | Iowa Supreme Court |
Mark C. Meyer, Cedar Rapids, for appellant.
Thomas J. Miller, Atty. Gen., Richard J. Bennett, Asst. Atty. Gen., Denver D. Dillard, Co. Atty. and Harold Denton, Asst. Co. Atty., for appellee.
Considered en banc.
Defendant was convicted of first degree kidnapping in violation of Iowa Code section 710.2 (1981) and sentenced to life imprisonment without parole, see id. §§ 710.2, 902.1. This was his third trial and conviction for the same offense. His first two convictions were reversed on appeal. See State v. Hatter, 342 N.W.2d 851 (Iowa 1983) (Hatter I); State v. Hatter, 381 N.W.2d 370 (Iowa App.1985) (Hatter II).
On this appeal defendant maintains that the trial court committed numerous errors. These claimed errors involve: (1) jury instructions, (2) sufficiency of the evidence, (3) impeachment by suppressed statements, and (4) constitutional vagueness and eighth amendment issues.
The relevant facts of this case are as follows. On December 1, 1981, the victim was leaving Harding Junior High School in Cedar Rapids after visiting her mother who worked there. Defendant grabbed her from behind and forced her into her own car at knife point, handcuffed her and drove her approximately five miles away from Harding Junior High to a rural area surrounded by fields. After driving into a field and forcing the victim to perform an oral sex act on him, defendant began to drive away with the victim still handcuffed and in the passenger seat. The car became stuck in a ditch, and at some point defendant removed the handcuffs from her so they could walk down the road to look for help. The victim testified that while they were walking, the defendant was going to stab her with the knife, but she grabbed his hand and talked him into giving her the knife, in return for her promise not to say anything about what had happened. The two finally flagged down a pickup truck which pulled the car out of the ditch. They drove back to Harding Junior High where defendant had left his car.
Although the kidnapping and sexual abuse involved in this case occurred December 1, 1981, it was not brought to the attention of the police until sometime later. Defendant was charged with the December 1 kidnapping and sexual abuse after making certain inculpatory statements following his arrest for another crime. In Hatter I we held that these statements were the fruit of an unlawful search and were thus inadmissible at trial. See 342 N.W.2d at 856-57. At defendant's second trial he was also convicted. The Iowa Court of Appeals reversed this conviction because the trial court had abused its discretion in failing to disqualify a juror for cause. See Hatter II, 381 N.W.2d at 376.
Many of defendant's claims of error involve the statutes under which he was convicted. The pertinent parts of those statutes are as follows:
Kidnapping defined.
A person commits kidnapping when the person either confines a person or removes a person from one place to another, knowing that the person who confines or removes the other person 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.
Iowa Code § 710.1;
Kidnapping in the first degree.
Kidnapping is kidnapping in the first degree when the person kidnapped, as a consequence of the kidnapping, ... is intentionally subjected to torture or sexual abuse.
Iowa Code § 710.2. We now turn to defendant's contentions.
A. Definition of "confines" or "removes". To convict a person of kidnapping, the State must prove that the person charged "confine(d) a person or remove(d) a person from one place to another...." Iowa Code § 710.1. While all sexual abuse involves some degree of confinement or removal, not all sexual abuse rises to the level of kidnapping. See State v. Rich, 305 N.W.2d 739, 742 (Iowa 1981). Defendant maintains that the trial court erred by instructing the jury on the confinement or removal element as follows:
One of the essential elements of Kidnapping which the State must prove beyond a reasonable doubt is that (the victim) was confined or removed or both. This requires more than the confinement or removal that is inherent within the commission of the offense of sexual abuse, as it is alleged to have occurred in this case.
Although no minimal period of confinement or distance of removal is required, it must exceed that which is incidental or dependent upon the commission of any sexual abuse and must be more than slight, inconsequential or as an incident inherent to any sexual abuse so that the confinement or removal or both has a significance separate and apart from any sexual abuse.
Such confinement or removal or both may exist because it substantially increases the risk of harm to the victim or significantly lessens the risk of detection or significantly facilitates escape. However, it is for you, the jury, after a full and impartial consideration of the evidence admitted during the trial, to determine whether there is confinement or removal or both as defined herein.
This instruction was essentially the same as the one given and referred to in Hatter I, 342 N.W.2d at 858, and identical to the one given and referred to in Hatter II, 381 N.W.2d at 375-76.
Defendant urges that this instruction, which deviates slightly from Iowa Uniform Jury Instruction 1007, misstates the law and undercuts his theory of defense. Uniform Instruction 1007 states that the period of confinement or the distance of removal "must exceed that which is normally incidental or dependent upon the commission of" sexual abuse. (Emphasis added.) The instruction given in the present case left out the word "normally." In addition, the court added the term "any" to the phrase "upon the commission of sexual abuse" so that it read "any sexual abuse."
Defendant argues that section 710.1 requires the State to prove that the confinement or removal exceeds that which typically occurs in the commission of sexual abuse. Deletion of the word "normally" and addition of the word "any," he argues, relieves the State's burden because it allows a jury to convict whenever it concludes that the confinement or removal exceeds that which occurs in the commission of any possible sexual abuse, but not necessarily the typical sexual abuse. We find no merit in this argument.
The deviations from the uniform instruction do not significantly change the definition of confinement or removal and do not deprive defendant of any defense. We previously have recognized that every sexual abuse involves some degree of confinement or removal of the victim. Rich, 305 N.W.2d at 742. At some point, however, the confinement or removal may rise to the level of kidnapping. In Rich, we drew the line between sexual abuse and kidnapping:
[O]ur legislature, in enacting section 710.1, intended the terms "confines" and "removes" to require more than the confinement or removal that is an inherent incident of commission of the crime of sexual abuse. Although no minimum period of confinement or distance of removal is required for conviction of kidnapping, the confinement or removal must definitely exceed that normally incidental to the commission of sexual abuse.
Id. at 745. While we did use the word "normally" in Rich, the trial court's failure to do so is not fatal to the instruction. The instruction, as given, aptly conveys the message that the confinement or removal must exceed that which is inherent in the crime of sexual abuse. We also conclude that inclusion of the word "any" is neither significant nor confusing. While we approve the instruction as given, we do not depart from past suggestions that trial courts should generally adhere to the uniform instructions.
Defendant finally urges that neither the instruction given nor the uniform instruction correctly incorporates the requirement of Rich, namely, that the confinement or removal "definitely" exceed that which is incidental to the commission of sexual abuse. Neither instruction includes the word "definitely." When we used the word "definitely" in Rich we did not intend that its use would elevate the quantity or quality of proof required in a criminal case. Furthermore, we do not believe that the deletion of this word, or the failure to further qualify the word "exceed," will confuse the jury or cause them to engage in speculation or conjecture in determining the required proof. We believe that persons of ordinary intelligence will readily understand what confinement or removal exceeds that which is incident to the commission of sexual abuse without further explanation.
We have previously held that the uniform instruction correctly states the requirements of section 710.1, as interpreted by Rich. See State v. Doughty, 359 N.W.2d 439, 441 (Iowa 1984). The trial court's instruction is essentially the same as the uniform instruction. We see no reason to change our opinion that this instruction incorporates the requirements of Rich.
B. Failure to instruct on intended confinement or removal. Defendant claims that the trial court erred in failing to give a proposed instruction on specific intent to confine or remove the victim. At the root of this claimed error, and the rejected instruction, is defendant's assertion that the State must prove not only that he confined or removed the victim as defined by Rich, but also that he had the specific intent to do so in a manner that exceeded the confinement or removal incident to sexual abuse. We reject this argument and hold that the trial court properly refused defendant's proposed instruction.
The intent element under section 710.1 requires the State to prove that the person doing the confining or removing did so with the...
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