State v. Holmes

• Decision Date: 21 March 1979
• Docket Number: No. 62080,62080
• Citation: 276 N.W.2d 823
• Parties: STATE of Iowa, Appellee, v. Ronald HOLMES, Appellant.
• Court: Iowa Supreme Court

Page 823

276 N.W.2d 823

STATE of Iowa, Appellee, v. Ronald HOLMES, Appellant.

No. 62080.

Supreme Court of Iowa.

March 21, 1979.

Gordon M. Liles, Fort Madison, for appellant.

Thomas J. Miller, Atty. Gen., Ann Fitzgibbons, Asst. Atty. Gen., and Michael P. Short, Keokuk, Lee County Atty., for appellee.

Considered by REYNOLDSON, C. J., and REES, McCORMICK, McGIVERIN and LARSON, JJ.

McGIVERIN, Justice.

Defendant Ronald Holmes appeals his conviction and sentence for robbery in the second degree in violation of § 711.3, Supplement to the Code 1977. He claims trial court erred in instructing the jury and in overruling his motions to dismiss. We affirm.

The jury found defendant guilty of robbing the desk clerk at the Holiday Inn motel in Keokuk on January 20, 1978 while representing that he was in the immediate possession and control of a firearm.

Trial testimony indicated the robbery occurred as follows.

Holmes came in and said to the clerk "Give me your drawer" and "just give me the bills, the paper money, no coins. Don't say anything." During this time he held his hand in a jacket pocket in a manner which elevated the pocket away from his body and gave the appearance of a concealed gun pointed at the clerk. The clerk testified she believed there was a definite possibility she would be shot and gave defendant $196 in currency from the cash drawer. There was evidence from a bystander that the clerk "was really shook up" by the robbery; however, the clerk had a history of a nervous condition for which she had received treatment prior to the robbery.

Other facts will be stated later as necessary for understanding of the assignments of error.

All statutory references are to the "Iowa Criminal Code" as contained in Supplement to the Code 1977, unless otherwise stated.

Defendant raises the following issues for review:

(1) Whether theft under §§ 714.1 and 714.2 is a lesser included offense of robbery in the second degree under § 711.3.

(2) Whether the jury instruction relative to defendant's defense of intoxication must specifically state the burden of proof is on the State to disprove that defense.

(3) Whether a defendant brought to trial on the ninetieth day after indictment or filing of the information has been brought to trial "within 90 days" as required by Iowa R.Crim.P. 27(2)(b).

(4) Whether the court improperly instructed the jury as to the elements of robbery.

(5) Whether the instruction defining "serious bodily injury" drawn from § 702.18, and expanded by the court, was unconstitutionally vague and confused and mislead the jury.

(6) Whether mandatory minimum sentencing is unconstitutional.

I. Is theft a lesser included offense under robbery in the second degree? Defendant requested the court to instruct the jury that theft in the first and third degrees, under §§ 714.1(1) and 714.2(1) and (3), were included offenses of robbery in the second degree, under §§ 711.1 and 711.3. The court refused to do so.

Section 714.1 provides in part:

A person commits theft when the person does any of the following:

1. Takes possession or control of the property of another, or property in the possession of another, with the intent to deprive the other thereof. (Emphasis added.)

Section 714.2 deals with various degrees of theft.

Section 711.1 provides:

711.1. ROBBERY DEFINED.

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.

It is immaterial to the question of guilt or innocence of robbery that property was or was not actually stolen.

Defendant argues that theft is a lesser included offense of robbery; therefore, failure to instruct the jury on theft resulted in reversible error. He urges that the sole distinction between theft and robbery under the new criminal code is that robbery requires one of three additional enumerated acts. Defendant fails to note, however, that Theft, in turn, requires an additional element which Robbery does not require. This latter distinction precludes the conclusion that theft is a lesser included offense of robbery.

In State v. Stergion, 248 N.W.2d 911, 912 (Iowa 1976) this Court stated that the test of whether one offense is necessarily included in another is resolved through a two-step process. The first step requires consideration of the legal elements and the second step requires an ad hoc factual determination. In turning to the first step, the legal or element test, this Court has stated:

The lesser offense must be composed solely of some but not all elements of the greater crime. The lesser crime Must not require any additional element which is not needed to constitute the greater crime. (Emphasis added).

State v. Stewart, 223 N.W.2d 250, 252 (Iowa 1974) cert. denied 423 U.S. 902, 96 S.Ct. 205, 46 L.Ed.2d 134 (1975).

Application of these principles to the present case reveals that the first part of the two-step test is not met. Theft includes the element of taking, while robbery does not. Theft, the lesser offense, requires an element which is not needed to constitute robbery, the greater crime. Therefore, under Stewart, theft is not a lesser included offense of robbery.

Defendant correctly points out that larceny was a lesser included offense of robbery under our prior criminal laws. See §§ 709.1 and 711.1, The Code, 1977. Our cases support this conclusion. See State v. Fonza, 254 Iowa 630, 634, 118 N.W.2d 548, 551 (1962); State v. Kobylasz, 242 Iowa 1161, 1165-1166, 47 N.W.2d 167, 169 (1951). The legislature, however, has acted to alter the elements of robbery.

Therefore, we hold that theft under §§ 714.1(1) and 714.2 is not an included offense of robbery in the second degree under §§ 711.1 and 711.3.

Defendant's first assignment is without merit.

II. Must the defense of intoxication instruction specifically say the State must disprove the defense? During the trial, evidence of defendant's intoxication was presented which would bear on the essential element of specific intent. Subsequently, the defendant asserted to the trial court, and urges here, that any intoxication instruction must specifically say that the State bears the burden to disprove the defense. However, the court gave the jury instruction 9 which reads as follows:

Evidence has been received that at the time and place of the commission of the offense, the defendant was intoxicated. The fact that a person is under the influence of intoxicants does not excuse nor does it aggravate his guilt. However, intoxication may be shown where it is relevant to the person's specific intent at the time of the act charged.

However, even though a person is under the influence of an intoxicant, if he still possesses a mental capacity sufficient to form the intent requisite to the offense charged; or, if he has the intent present in his mind before he falls under the influence of the intoxicant and then commits the act, he will not be absolved of the responsibility for the act. Thus, intoxication is a defense only when it produces a mental disability such as will render the person incapable of forming the intent which is an element of the offenses being considered in these instructions.

In considering the question of the defendant's intoxication, it should be considered along with all the other evidence in the case which bears on the question of intent which is explained in Instruction No. 12.

This instruction is the substance of the Iowa State Bar Association, Iowa Uniform Jury Instruction No. 210 (1978).

We view the instructions in their entirety. State v. Gambell, 262 N.W.2d 792, 796 (Iowa 1978); State v. Templeton, 258 N.W.2d 380, 383 (Iowa 1977). The instructions read as a whole, make clear the State bears the burden of proof on the essential element of intent. Instruction 9 referred to instruction 12 dealing with intent to commit a theft, an essential element in the crime charged of robbery. Instruction 12, in turn, said such intent must be proved beyond a reasonable doubt. Instruction 15 stated the prosecution must prove each of the robbery elements, including that defendant intended to commit a theft, beyond a reasonable doubt. Finally, instruction 1 provided the State had the burden of proving beyond a reasonable doubt each allegation of the charge.

We conclude the instructions made clear the burden of proof as to defendant's intent did not leave the State, even though defendant relied on an intoxication defense.

Defendant's second assignment fails.

III. Was defendant denied a speedy trial under Iowa R.Crim.P. 27(2)(b)? The trial information charging defendant was filed on January 25, 1978. Defendant did not, thereafter, waive his speedy trial rights; his trial began on April 25, the ninetieth day following filing of the information.

Iowa R.Crim.P. 27(2) provides:

2. Speedy trial. It is the public policy of the state of Iowa that criminal prosecutions be concluded at the earliest possible time consistent with a fair trial to both parties. Applications for dismissals under this subsection may be made by the county attorney or the defendant or by the court on its own motion b. If a defendant indicted for a public offense has not waived his right to a speedy trial he must be brought to trial within ninety days after indictment is found or the court must order the indictment to be dismissed unless good cause to the contrary be shown.

The day of trial defendant moved to dismiss the case on the ground he had not been brought to trial "within 90 days" after January 25, as required by rule 27(2)(b). The court overruled the motion.

Defendant would have this court construe rule 27(2)(b) to mean that a defendant must be brought...