State v. Johnson, 63103
| Decision Date | 23 April 1980 |
| Docket Number | No. 63103,63103 |
| Citation | 291 N.W.2d 6 |
| Parties | STATE of Iowa, Appellee, v. Harold M. JOHNSON, Appellant. |
| Court | Iowa Supreme Court |
Terry W. Guinan of Guinan & Cornell, Fort Dodge, for appellant.
Thomas J. Miller, Atty. Gen., Kathy A. Krewer, Asst. Atty. Gen., Monty L. Fisher, Webster County Atty., and Fredrick E. Breen, Asst. Webster County Atty., for appellee.
Considered en banc.
Defendant Harold M. Johnson, accused by trial information of sexual abuse in the third degree, and found guilty by a jury of assault while participating in a felony, appeals from his conviction. His appeal presents two issues. The first and crucial issue is whether assault while participating in a felony, a violation of section 708.3, Supplement to the Code 1977, is legally a lesser included offense of the crime of sexual abuse in the third degree, as defined by section 709.4, Supplement to the Code 1977. The second issue is whether the evidence in this case provided a factual basis for submitting to the jury that lesser offense.
The prosecuting witness, Roberta Walker, and her friend Bonnie spent the latter part of the evening of September 25, 1978, at a tavern in Fort Dodge. While at the tavern, Walker had some drinks and played pool with a man subsequently identified as defendant. Late in the evening Bonnie left to go home. She lived in an upstairs apartment of a building adjoining the tavern. At some point following Bonnie's departure, Walker left the tavern to retrieve her billfold from Bonnie's apartment and then returned to the tavern. Near closing time Walker said something to defendant about making sure she made it back to her friend's apartment. According to Walker, she left the tavern, walked the short distance to the building in which her friend resided and entered through an outside door into a vestibule at the bottom of the stairway leading to Bonnie's apartment. Thereupon, defendant, who apparently had accompanied Walker, closed the door, pushed Walker down on the steps, held her there, unzipped his pants, pulled out his penis and attempted to place it in Walker's mouth. Her screams were heard and defendant was apprehended by police while still with Walker.
Defendant's version of the events is vastly different. He testified that Walker offered to drive him to Sambo's for breakfast. He denied that he ever assaulted her or attempted to force her to have oral sex.
I. Is assault while participating in a felony a legally included offense of sexual abuse in the third degree ? The method of determining if one criminal offense is included in another embodies a two-test process: legal and factual. The first test involves a consideration of the legal elements of the greater and lesser offenses. This test has been articulated as follows: 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). The second test requires an ad hoc factual determination that there is an evidentiary basis for submitting the lesser included offense to the jury. State v. Holmes, 276 N.W.2d 823, 825 (Iowa 1979); State v. Furnald, 263 N.W.2d 751, 752-53 (Iowa 1978). This two-test process remains operative under the revised Iowa Criminal Code. State v. Sanders, 280 N.W.2d 375, 377 (Iowa 1979).
We now turn our attention to the statutory crimes in issue and the legal elements of each. Section 709.4, sexual abuse in the third degree, in part relevant here, provides:
Any sex act between persons who are not at the time cohabiting as husband and wife is sexual abuse in the third degree by either of the participants when the act is performed with the other participant in any of the following circumstances:
1. Such act is done by force or against the will of the other.
From this interdiction we discern three elements that pertain to this case: (1) the persons involved are not at the time cohabiting as husband and wife; (2) there is a completed sex act; (3) the sex act is accomplished by force or against the will of one of the persons involved. The term "sex act," as defined by section 702.17, Supplement to the Code 1977, would in this case have been completed on the contact of defendant's penis with Walker's mouth. 1
The provision upon which this controversy focuses is section 708.3, which defines assault while participating in a felony as follows:
Any person who commits an assault as defined in section 708.1 while participating in a felony is guilty of a class "C" felony if the person thereby causes serious injury to any person; if no serious injury results, the person is guilty of a class "D" felony.
The elements of this offense relevant here are (1) the commission of an assault (2) while participating in a felony. These elements are further defined in other sections of the Iowa Criminal Code. Section 708.1, Supplement to the Code 1977, insofar as material here, defines "assault" in these terms:
A person commits an assault when, without justification, the person does any of the following:
1. Any act which is intended to cause pain or injury to, or which is intended to result in physical contact which will be insulting or offensive to another, coupled with the apparent ability to execute the act.
2. Any act which is intended to place another in fear of immediate physical contact which will be painful, injurious, insulting, or offensive, coupled with the apparent ability to execute the act.
"Participating" is defined in section 702.13, Supplement to the Code 1977, as thus:
A person is "participating in a public offense," during part or the entire period commencing with the first act done directly toward the commission of the offense and for the purpose of committing that offense, and terminating when the person has been arrested or has withdrawn from the scene of the intended crime and has eluded pursuers, if any there be. A person is "participating in a public offense" during this period whether the person is successful or unsuccessful in committing the offense.
Defendant concedes that the crime charged in this case necessarily includes an assault. But here agreement ends. Defendant advances two arguments why the legal element test is not met here. He first argues that assault while participating in a felony cannot be a lesser included offense because the elements for it and sexual abuse in the third degree are the same. He arrives at this conclusion by asserting that the felony must be completed for there to be a conviction for an assault while participating in the felony.
This conclusion, however, ignores the final sentence of section 702.13, which declares that "(a) person is 'participating in a public offense' during this period whether the person is successful or unsuccessful in committing the offense." (Emphasis added.) This clearly expresses the intent that the felony need not have been completed. This also is logical, for there would be no need for the legislature to provide two offenses for the same criminal act. Professor Yeager 2 explains the reach of section 708.3 with these sentences Once a felony has progressed to the point where an assault is made, the felons will be participating in a felony as the term is defined in § 702.13. The coverage of this section is somewhat broader than the former law in that this section does not require any connection between the assault and the felony other than that the person committing the assault be at that time participating in a felony.
J. Yeager & R. Carlson, 4 Iowa Practice: Criminal Law and Procedure § 178 (1979).
Defendant's second argument is that "participating" in a felony requires that more than one person be involved. He contends that "the legislature intended 'participation' to mean joint conduct." We are unable to agree. Initially we note that section 702.13 is written in the singular number. There is no indication in the statutory definition that participating in a public offense demands the complicity of two or more people. The term participating is, in fact, directed only toward the taking part in an event, i. e., a public offense, and not to the number of people who have a role in that event. See J. Yeager & R. Carlson, supra § 40. We are satisfied that taking part in a public offense constitutes participating in the offense, without regard to whether others in some manner also participate. Moreover, joint criminal conduct is defined elsewhere in the Code. See § 703.2, Supplement to the Code 1977. 3
Although finding no merit in defendant's arguments, we nevertheless must still decide whether assault while participating in a felony fulfills the legal element test for being a lesser included offense of sexual abuse in the third degree. We are satisfied that it does. Manifestly, an assault is committed when a sex act is performed by force or against the will of another. Compare § 709.4(1) () with § 708.1 (assault). The intent requirements are of the same character. For assault, it is sufficient if the defendant intends to offensively touch someone, § 708. (1); for sexual abuse, the defendant must generally intend to commit the proscribed sexual contact, see W. LaFave & A. Scott, Handbook on Criminal Law § 28, at 196 (1972); see State v. Booth, 169 N.W.2d 869, 874 (1969). Furthermore, an assault can be committed even though the attempt to perform a sex act by force or against another's will is unsuccessful. The requirement of participating in a felony of section 708.3 also falls within section 709.4(1) (). Obviously, accomplishing a proscribed sex act requires physically participating in that act, as defined in section 702.13. The mental elements are likewise the same. For participating in a felony, section 702.13 arguably implies...
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