State v. Marr

• Decision Date: 17 February 1982
• Docket Number: No. 66304,66304
• Parties: STATE of Iowa, Appellee, v. Daniel C. MARR, Appellant.
• Court: Iowa Supreme Court

Page 176

316 N.W.2d 176

STATE of Iowa, Appellee, v. Daniel C. MARR, Appellant.

No. 66304.

Supreme Court of Iowa.

Feb. 17, 1982.

As Corrected March 11, 1982.

Chadwyn D. Cox, of Reynolds, Kenline, Breitbach, McCarthy, Clemens, McKay & Nigg, Dubuque, for appellant.

Thomas J. Miller, Atty. Gen., and Michael Keith Jordan, Asst. Atty. Gen., for appellee.

Considered by UHLENHOPP, P. J., and McCORMICK, ALLBEE, LARSON, and SCHULTZ, JJ.

LARSON, Justice.

The defendant Daniel C. Marr was convicted of kidnapping in the first degree, §§ 710.1, 710.2, and sexual abuse in the second degree, §§ 709.1, 709.3, The Code 1979. On appeal he claims the trial court erred in denying (1) his motion for dismissal on the charge of kidnapping and (2) his motions for mistrial on the ground that juror exposure to a prejudicial newspaper article violated his constitutional right to a fair trial.

I. The motion to dismiss.

At the close of the evidence the defendant moved to dismiss the charge of kidnapping on the ground there was insufficient evidence to support the charge. The trial court denied the motion, as well as the defendant's objections to the instructions on kidnapping, stating "there is reasonable evidence before the jury to make a finding in regard to kidnapping as charged." (Although the defendant referred to his trial motion as one for dismissal, it is evident that it was one for judgment of acquittal, Iowa R.Crim.P. 18(10)(a).) This court's scope of review is limited: was there substantial evidence from which a reasonable jury could find that the defendant kidnapped the victim? See Iowa R.App.P. 14(f)(1); State v. Sharpe, 304 N.W.2d 220, 225-26 (Iowa), cert. denied, --- U.S. ----, 102 S.Ct. 134, 70 L.Ed.2d 113 (1981).

Viewing the evidence in the light most favorable to the State, Iowa R.App.P. 14(f)(2); Sharpe, 304 N.W.2d at 225-26, the jury could have found the following facts. The victim had left her apartment house around 10:00 p. m. to walk to a nearby drug store. Upon leaving the store, she noticed a man-whom she later identified as the defendant-sitting in a car and staring at her. While walking back to her apartment she heard a car door slam and observed the defendant following her at a distance of fifty feet. She picked up her pace, and he began to run after her; when she began to run too, he yelled "Hey wait a minute," and she stopped and turned around to face him. She screamed and he clamped his hand over her mouth, threatening her "not to scream, or (she) would never scream again." At this point the two were on the sidewalk directly in front of the victim's apartment house, which abutted the sidewalk. The defendant slammed her against the corner of the building, and then shoved her down to the ground around to the side of the building, some ten to fifteen feet into a gangway separating it from a neighboring house. One of her arms was pinned under her back, allowing the defendant to lift her shirt, pull down her pants, and sexually abuse her. Although she believed he had a knife, the defendant apparently did not have any kind of weapon in his possession. She could not scream or breathe easily because he clutched her throat; in fact he applied so much pressure that she almost lost consciousness. Alerted by a noise outside the apartment, the victim's husband entered the gangway and interrupted the attack, which had lasted two or three minutes.

Section 710.1(3) defines, in part, the crime of kidnapping:

A person commits kidnapping when he or she either confines ... or removes a person from one place to another, knowing that he or she has neither the authority nor the consent of the other to do so; provided, that to constitute kidnapping the act must be accompanied by ... (t)he intent to ... subject the person to a sexual abuse.

(Emphasis added.) In State v. Rich, 305 N.W.2d 739 (Iowa 1981) this court discussed the relationship between kidnapping and sexual abuse, regarding the confinement or removal elements of section 710.1(3). We concluded the kidnapping statute requires

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. Such confinement or removal must be more than slight, inconsequential, or an incident inherent in the crime of sexual abuse so that it has a significance independent from sexual abuse. Such confinement or removal may exist because it substantially increases the risk of harm to the victim, significantly lessens the risk of detection, or significantly facilitates escape following the consummation of the offense.

Id. at 745 (emphasis added); accord, State v. Knupp, 310 N.W.2d 179, 182-83 (Iowa 1981). See also State v. Knutson, 220 N.W.2d 575, 579 (Iowa 1974). The question here is whether there was substantial evidence the defendant's actions "definitely exceed(ed) that normally incidental to the commission of sexual abuse," Rich, 305 N.W.2d at 745.

The State's argument focuses on the language in Rich that "confinement or removal may exist because it substantially increases the risk of harm to the victim, significantly lessens the risk of detection, or significantly facilitates escape following the consummation of the offense." Id. It argues these factors existed in the present case because: (1) the defendant first observed the victim in the drug store parking lot, which was brightly illuminated; however, "he chose to follow (her) to an area which became progressively darker" (viz., nearer to her apartment), indicating "a desire to ensure a degree of privacy beyond that necessary to commit the assault," and thus lessening the chances of detection; (2) he shoved her into the darkly-lit gangway, removing her from the public view and further lessening the chances of detection; (3) he choked her after she screamed and when they were in the gangway, which increased the risk of harm to the victim; and (4) he escaped from the scene after the victim's husband arrived because the husband was initially unable to determine, due to the poor visibility in the gangway, that his wife was being attacked. Accordingly, the State concludes there was a confinement or removal within the meaning of the statute.

In two recent decisions this court has approved separate charges and convictions for sexual abuse and kidnapping, even though the events underlying each charge were not substantially removed in time or space. Thus, in Rich, 305 N.W.2d 745-46, we held a jury question on kidnapping was presented where the accused, armed with a "sharp object," accosted his victim in an open walkway in a shopping mall and removed her to a mall restroom, where the sexual abuse occurred. Although the "movement of the victim the short distance from the mall to the restroom in and of itself was not sufficient confinement or removal within the meaning of section 710.1," id. at 745, other factors indicated the accused's actions were more than incidental to the commission of sexual abuse:

First, although the doors to the shopping center were locked, defendant looked into the restroom to ensure further privacy. Pictures introduced as exhibits show that defendant did not choose the restroom for his sexual assault for the personal comfort of himself or his victim. Rather, his actions indicate that he sought the seclusion of the restroom as a means of avoiding detection. Secondly, the binding of the victim's hands behind her back was not necessary to the commission of the sexual abuse and is not a normal incident of that offense.

Defendant's activities subsequent to the consummation of the sexual abuse (which included placing the victim in a large three-wheeled trash container, covering her with trash, threatening her to remain silent, and moving her to various points within and without the shopping mall) are also significant. Although these subsequent activities do not show confinement or removal with "intent to subject the person to a sexual abuse," as literally required by section 710.1(3), defendant's continued confinement and movement of the victim were a continuation of the commission of the sexual abuse and so intertwined with that offense as to come within the contemplation of sections 711.1-.2. The confinement and movement subsequent to the consummation of the act of sexual abuse were not incidental to the commission of that offense, but rather, we believe, for the purpose of avoiding detection or facilitating defendant's escape.

Considering the totality of the facts, there was substantial evidence to support the kidnapping charge, and a jury question was engendered.

Id. at 745-46.

Subsequently, in Knupp, 310 N.W.2d at 182-83, we held there was sufficient evidence to support sexual abuse and kidnapping convictions where the accused

pulled the victim into his vehicle, drove away before she could escape, and took her six or seven blocks to a point under a bridge. After she got out of the car he hit her several times to force her back into the car and to submit to his sexual abuse.

....

Defendant's actions substantially exceeded that which could have been considered merely incidental to the sexual abuse, substantially increased the risk of harm to the victim, and significantly lessened the risk of detection.

See State v. Holderness, 301 N.W.2d 733, 740 (Iowa 1981) (fact question engendered under § 710.1(3) where sexual-abuse victim detained for two hours and transported by automobile several miles from city to country); Annot., Kidnapping-Asportation for Other Crime, 43 A.L.R.3d 699, 709-13 (1972). See also State v. Cross, 308 N.W.2d 25 (Iowa 1981); State v. Padgett, 300 N.W.2d 145 (Iowa 1981).

Although it has been stated section 710.1(3) encompasses "an extremely wide variety of factual circumstances," 1 J. Roehrick, The New Iowa Criminal Code:...