State v. Mead
| Decision Date | 21 April 1982 |
| Docket Number | No. 64124,64124 |
| Citation | 318 N.W.2d 440 |
| Parties | STATE of Iowa, Appellee, v. Marvin Allen MEAD, Appellant. |
| Court | Iowa Supreme Court |
Francis C. Hoyt, Jr., Appellate Defender, and Patrick R. Grady, Asst. Appellate Defender, Des Moines, for appellant.
Thomas J. Miller, Atty. Gen., Shirley Ann Steffe, Asst. Atty. Gen., and William E. Davis, Scott County Atty., for appellee.
Considered by REYNOLDSON, C. J., and UHLENHOPP, McCORMICK, ALLBEE, and McGIVERIN, JJ.
The principal problem in this appeal relates to the meaning of the word "confines" in our kidnapping statute, section 710.1, The Code 1979.
The jury could find the facts as follows. On April 15, 1979, Jovita Zamora (Jovita) and her mother, Angela Zamora (Mrs. Zamora), returned to Mrs. Zamora's home after having Easter dinner with relatives. Jovita testified:
A. Yes, when I opened the door for my mother to go in, she didn't go in, because someone was in that entrance. The minute that I opened the door, I thought my mother would step up, but she didn't, then this young man stepped out of there.
Q. Off the porch? A. Out of the inside of the entrance porch.
Q. And what happened then? A. Then my mother questioned him and asked him what he was doing in the house.
Q. Were you present during this? A. Yes.
Q. Do you recall what his response was? A. Yes.
Q. What was it? A. He said he was knocking on the door.
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Q. Okay. How long did this conversation go on? A. He asked us if we were the people that lived there at that house, and we said yes, then we didn't stay there by that door, we proceeded to walk on to the front door.
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Q. What did the man that was there do? A. He walked along with us.
Q. Beside you, in front of you, or behind you? A. Alongside of us.
Q. Was the conversation still going on at this time? A. The conversation was going on; he was asking questions about the neighborhood.
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Q. Okay. What happened then? A. He stepped alongside of us, and he just stood there, and he did tell us that that's who he was looking for, Cheryl Weeks, and I was carrying a few empty dishes in a box, and I set them down on the front step. When I turned over to set it down, then that's when he grabbed my mother from the back.
Q. Okay. Would you describe to the Jury how he did this? A. As I set this box down, he grabbed my mother with his left hand, and then he held a knife to her throat, and he kept--he said, "This woman is dead," and I couldn't believe it when he said that--
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Q. Would you describe what you observed in his hand? A. He had a shiny blade to my mother's neck, which I was positive was a knife.
Q. Did he say, "This woman is dead" just once? A. No, he repeated it, because--I guess I was shocked, I didn't--he repeated it again, "This woman is dead." My mother started screaming then.
Q. What occurred then? A. My mother told me--she said, "Look what he is holding to my neck." I thought, "Well, he is much stronger than I," but I went ahead and sort of hit him on the arm, on the right arm, and I said, "No, don't." And I don't know whether my mother raised her arms then or--she freed herself and she ran for help.
Q. As your mother freed herself and ran for help, what occurred? A. He then struck me in the face, and as he struck me, I fell to the ground. I landed with my right hip on the concrete, which I had a great big bruise there. When he hit me--
Q. Let me stop you for a second. When you say that he struck you, how did he strike you? With what? A. He used his fist.
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Q. Was he attempting to do anything at the time he struck you? A. At the time, yes, he had told me to let go of my purse, and I wouldn't let go of my purse, I held on to it.
Q. Was he also holding on to it? A. He was holding on to it too. I must have frozen in the spot, thinking that it was my purse and my belongings, and why should he want to take it away from me.
Q. After he hit you, what happened? A. After he hit me, then I fell, then he kicked me on my left arm. That bruise was even a lot worse than the one I had on my face.
Q. Were you still holding on to your purse? A. The purse strap broke then, and I was hanging on, but that's when he got it away from me.
Q. After he kicked you? A. Right.
Q. Can you tell whether this was a deliberate kick, as opposed to just pulling away? A. No, he wanted to hurt me, so I would let go of that purse.
Q. After he kicked you and got ahold of the purse, what happened? A. Then I saw him running--I got up, and I saw him running towards the back of the house, past the garden--we have a garden there--and all I thought was, "Well, he's gone with my purse," and then I remembered--my mother was at the neighbor's screaming yet, I could hear her hollering and screaming, so I went over and tried to calm her down, because she was really upset.
Q. When he left, he took your purse with him? A. Right, he had my purse with him.
Mrs. Zamora testified similarly. The State introduced other evidence about a knife and also about pry marks by the door of the house.
Defendant Marvin Allen Mead was apprehended, identified as the individual involved in the incident, and charged in three counts with second-degree kidnapping, first-degree burglary, and assault while participating in a felony. He was convicted on those charges and sentenced to twenty-five years each on the first two of them and five years on the third one, to run consecutively for a total of fifty-five years.
Defendant appealed. He minimally but sufficiently preserved error on the grounds he asserts on appeal. State v. Allison, 206 N.W.2d 893, 894 (Iowa 1973); State v. Miskell, 247 Iowa 678, 683, 73 N.W.2d 36, 39 (1955).
We transferred the appeal to the Court of Appeals. By divided vote that court affirmed the kidnapping and burglary convictions but reversed on the assault charge and ordered it dismissed. We granted further review on the parties' applications.
I. Kidnapping. Our kidnapping statute provides in section 710.1(2), The Code 1979:
A person commits kidnapping when he or she either confines a person 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 one or more of the following:
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2. The intent to use such person as a shield or hostage.
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Under that section, a defendant must confine a person or remove a person from one place to another. The State claims that defendant confined Mrs. Zamora when he grabbed her around the neck. Defendant contends that "confines" in the statute contemplates a greater restraint than occurred here. A removal is not involved.
The parties' dispute raises again the basic question of the scope of the crime of kidnapping. We have confronted this problem on several occasions, and our present task is to fit this case into the pattern of those decisions. State v. Holderness, 301 N.W.2d 733 (Iowa 1981); State v. Rich, 305 N.W.2d 739 (Iowa 1981); State v. Knupp, 310 N.W.2d 179 (Iowa 1981); State v. Marr, 316 N.W.2d 176 (Iowa 1982).
The factual recitation in Holderness includes the following:
On August 26, 1978, a ten-year-old girl was abducted while in a Davenport cemetery. After luring the girl from her bicycle to his car, the assailant choked her, partially removed her pants and "did some things" to her which she could not remember. The assailant also struck her on the head several times with both a club and his fist. Following this episode, he transported the victim out into the country, where she was subjected to various incidents of sexual abuse while still confined in the assailant's car. She was later released when he returned her to the cemetery.
301 N.W.2d at 736. We stated:
We believe the facts and circumstances of this case are sufficient to support the conclusion that the confinement and movement involved were not merely incidental to the crime of sexual abuse, and that the offense of kidnapping was amply established.
In Rich a shopping center custodian in a mall told the female victim, after hours, that she would have to use another exit. The two walked toward that exit and the custodian grabbed the victim from behind, held a sharp object to her back and told her she would not get hurt if she did as told, led her to the men's restroom, forced her to lie on her stomach, tied her hands behind her back, and sexually abused her. He then led her around the shopping center, laid her on her back and tied her legs to a bannister with her brassiere and a rag, later untied her legs, put her in a three-wheeled trash container and covered her with trash, wheeled her to a utility shed, left, returned, tied her feet, subsequently wheeled her into the mall area again, and departed. The victim later escaped.
After extensively reviewing the split of authority on the confinement-removal issue, contrast People v. Levy, 15 N.Y.2d 159, 204 N.E.2d 842, 256 N.Y.S.2d 793 (1965), to State v. Jacobs, 93 Ariz. 336, 380 P.2d 998, cert. denied, 375 U.S. 46, 84 S.Ct. 158, 11 L.Ed.2d 108 (1963), and considering the general rules of construction of criminal statutes, we held:
Applying these principles of construction, we conclude that our 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. 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.
Knupp involved this factual situation:
In her high heels sh...
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State v. Miller
...412 A.2d 326 (Del.1980); Robinson v. United States, 388 A.2d 1210 (D.C.1978); Mobley v. State, 409 So.2d 1031 (Fla.1982); State v. Mead, 318 N.W.2d 440 (Iowa 1982); State v. Cabral, 228 Kan. 741, 619 P.2d 1163 (1980); State v. Estes, 418 A.2d 1108 (Me.1980); People v. Adams, 389 Mich. 222, ......
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Hatter v. Warden, Iowa Men's Reformatory, C89-0062.
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