State v. Lewis

Decision Date19 May 1976
Docket NumberNo. 58182,58182
Citation242 N.W.2d 711
PartiesSTATE of Iowa, Appellee, v. Ronald LEWIS, Appellant.
CourtIowa Supreme Court

James K. Marvel of Karr, Karr & Karr, Webster City, for appellant.

Richard C. Turner, Atty. Gen., Nancy J. Shimanek, Asst. Atty. Gen., Carroll Wood, County Atty., for appellee.

Considered en banc.

MASON, Justice.

Defendant Ronald Lewis was charged by county attorney's information filed February 3, 1975, with the crime of breaking and entering with intent to commit a public offense, namely, the larceny of goods from the Dalbey Service Station in Ellsworth, Iowa, in violation of section 708.8, The Code. He appeals from judgment and sentence imposed on his conviction by a jury of the offense charged.

Defendant's contentions present four issues for review which will be stated later in more detail. However, an issue of vital importance is whether the trial court erred in giving instruction 12 which allowed proof of possession of property recently stolen in a burglary to support an inference the party in possession committed the underlying breaking and entering.

We narrate some of the factual background leading to the prosecution. The break in occurred some time between 11:40 p.m. January 24 and 3:00 a.m. January 25, 1975. Hamilton County Sheriff's deputies Roy W. Olmstead and Dennis L. Jackson were on duty this particular evening. Driving separate cars, both normally patrol the county and apparently check the Dalbey Service Station 'a couple of times a night.' In connection with this, Olmstead inspected the building at approximately 10:00 p.m. and found everything in order. Jackson did the same around 11:40 p.m. and found nothing amiss. However, on his second check around 3:00 a.m. Olmstead found the east door of the establishment and a window, boarded up because of a previous break in, were open.

With his spotlight illuminating the building, he radioed Deputy Jackson and a Jewell police officer named Woodley for assistance. Jackson and Olmstead entered through a door on the north side as Woodley proceeded around the east side of the station. No one was found in the building but the front of the cigarette machine was lying on the floor. Jackson telephoned Clifford F. Dalbey, owner of the station, who arrived a few minutes later.

Dalbey at first noted a box of merchandise received January 24 from the G & K Wholesale Company of Iowa Falls was missing. The box had the name 'Dalby' written on it. The invoice listing the products delivered (exhibit 2) had not been stolen. It included one carton of Salem cigarettes, two Camel Filters, two Raleighs, three Kools, one Marlboro, one Belair and one Kent. The station also received on January 24 the following items: one box of Snickers candy bars, six packages of 'Mixture 79' smoking tobacco, 12 packages of Sir Walter Raleigh smoking tobacco, one box of size C batteries and one box of Muriel Airtip cigars. Some time later Mr. Dalbey noticed seven box end wrenches, some of which were stamped with his initials (C.F.D.), were also missing (exhibits 5, 6, 7, 8, 9, 10, 11, 12). Several other tools had not been so marked.

In the meantime, Sergeant Robert Dyar of the Ankeny Police Department was on patrol duty in Ankeny. At approximately 4:00 a.m., January 25, he noticed a car parked in front of a service station closed for the night. The tallights were not burning but the car's dome light was one. Dyar testified that as he approached the station this car 'hurriedly left the lot' with its lights still off. The policeman then noticed the station's Pepsi Cola machine had been turned sideways and had pry marks on it. Dyar pursued and called for help. Although Dyar never lost sight of the car, Officer Robert Kramme actually stopped the Ford LTD. The two occupants of the car were defendant and Morris Kyle McCallister, also charged in this crime but not an appellant.

Sergeant Dyar, who had since arrived on the scene, shined his flashlight through the driver's open door. The light revealed two crowbars with blue paint marks similar to the blue on the Pepsi machine as well as what appeared to be a money bag protruding from under the front seat. Upon noticing the blue paint, Dyar instructed Officer Kramme to place the two under arrest.

The sergeant then noticed a tire wrench similar to exhibit 3, identified by Mr. Dalbey as the one taken from his station. There were also various other tools including some wrenches with initials stamped on them. Dyar, however, did not remove wrenches from the car or inventory them. Contents of the trunk included a cardboard box containing cigarettes and candy bars. The box apparently bore the misspelled name 'Dalby Serv.' This property Dyar later transported to the police station and placed in the custody of Detective Longnecker where the contents were inventoried.

Dyar remained at the scene until the wrecker arrived to tow the car to the impoundment lot. Dyar testified this procedure involves towing the car to the lot surrounded by a 'six to seven foot high chain link fence. It has two gates which are padlocked. The vehicles are taken in and secured, the doors locked, and the keys given to the police station, and the gates are locked.'

In any event, Detective Ronald Longnecker had been called into the case. He arrived before the car was towed away and inventoried the wrenches (exhibits 3--12). The wrenches were in his custody until January 28 when they were released to the Hamilton County Sheriff's Department.

It is clear many of the items seized were of the exact type and quantity of the goods listed on the invoice and delivered to Dalbey January 24. However, the Sir Walter Releigh and Mixture 79 pipe tobaccos were not recovered. Furthermore, quantities of Milky Way candy bars, Certs, Life Savers, Rolaids and Brach's candy were recovered from the car but were not on the invoice. Dalbey testified, however, he had products of this type at the station January 24.

Defendant's side of the story would, if believed, remove the possibility he committed the break in. It was asserted he and McCallister, after purchasing some goods at the Richman-Gordman store on Hichman Road in Des Moines around 8:00, played cards at the Lewis residence until approximately 1:00 a.m. The fact the card game occurred was corroborated by two other card players besides defendants as well as Mrs. Lewis.

After the card game ended, Lewis and McCallister drove to Ankeny to inspect a Camaro on the Moyer Chevrolet used car lot. (Both were at the time working for Thrun Chevrolet in Des Moines). After leaving the Moyer lot is when they claim to have been stopped by the police. It was denied they were ever at an Ankeny service station or that they had burglarized the Dalbey station in Ellsworth. McCallister claimed they were pulled over at approximately 2:00 a.m., as opposed to 4:00 a.m.

I. The first issue for review stems from defendant's contention the trial court erred by submission of instruction 12 concerning the inferences from possession of recently stolen property since there was no evidence tending to establish defendant's presence at the scene of the break in.

The State insists defendant failed to preserve this issue for review. This argument is based on the fact defendant's exceptions to proposed instruction 12 were taken to the 'tentative draft of the instructions' and no further exceptions or objections were taken or made by defendant before the instructions in their final form were read to the jury. The State relies on rule 196, Rules of Civil Procedure, and State v. Clark, 187 N.W.2d 717, 719 (Iowa 1971) and State v. Schmidt, 259 Iowa 972, 979--980, 145 N.W.2d 631, 636, as support for its position.

The trial transcript discloses the following record was made:

'The Court is going to have the reporter hand you a tentative draft of the instructions as soon as we finish here. I want to give you opportunity to go over them, and then I would hope that in thirty minutes or such a matter we could take exceptions thereto so we could get to find arguments.

'I suggest you tell me when you are ready to take exceptions, let's put it that way; but I do think it important to proceed as fast as we can with due diligence and due deliberate speed, to use an old phrase.

'The reporter will give you the instructions now.

'(Whereupon, the tentative draft of the Court's instructions was handed to counsel on each side, and a short recess taken.)

'(At 2:15 p.m., the same day, further proceedings were had to the Court, IN THE ABSENCE OF THE JURY, as follows:)

'THE COURT: Gentlemen, some time ago I delivered to counsel on both sides a tentative draft of the instructions, and I would at this time like to give you men opportunity to take exceptions to that tentative draft.

'Exceptions on the part of the state?

'MR. WOOD: No exceptions, Your Honor.

'THE COURT: Exceptions on the part of the defendants?'

At this point defendant objected to instruction 12 'on the basis that any inference that may be raised is, No. 1, an unconstitutional shift in the burden of proof. In addition thereto, any inference has not been fully established in that the state has failed to link the removal of the objects, or the presence of the objects in the automobile with the defendants.'

He also objected to the inclusion of the last three lines on the second page of instruction 12 which are not before us. In any event, the trial court excluded those lines from instruction 12.

A similar problem to that presented here as to the timeliness of defendant's objections to instruction 12 was before the court in State v. Baskin, 220 N.W.2d 882, 884--886 (Iowa 1974). We there held the State's contention was without merit. In light of the record here the State's argument is governed by the pronouncements made in Baskin.

Nevertheless, it is the court's opinion there exists another reason which was not urged by the State why defendant failed to preserve for review the issue asserted in...

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