State v. Mitchell

Decision Date24 January 1990
Docket NumberNo. 88-1464,88-1464
Citation450 N.W.2d 828
PartiesSTATE of Iowa, Appellee, v. Louis F. MITCHELL, Appellant.
CourtIowa Supreme Court

Raymond E. Rogers, State Appellate Defender, and Shari Barron, Asst. Appellate Defender, for appellant.

Thomas J. Miller, Atty. Gen., Ann E. Brenden, Asst. Atty. Gen., James J. Koll, County Atty., and Robert Hansen, Asst. County Atty., for appellee.

Considered by McGIVERIN, C.J., and CARTER, LAVORATO, NEUMAN and ANDREASEN, JJ.

NEUMAN, Justice.

Defendant Louis Mitchell was charged with first-degree kidnapping for the alleged abduction and sexual abuse of a young woman from Denison, Iowa. Following a bench trial, the court concluded that the abduction was merely incidental to the crime of sexual abuse. Thus, Mitchell was convicted of second-degree sexual abuse and sentenced to a term of imprisonment not to exceed twenty-five years. See Iowa Code §§ 709.3(3) and 902.9(1) (1987).

On appeal, Mitchell contends that the crime of sexual abuse for which he has been convicted is not a lesser-included offense of first-degree kidnapping. He also asserts that evidence of a suicide attempt following his arrest should have been suppressed and that certain hearsay testimony was improperly admitted in evidence.

Our review of this criminal appeal is limited to the correction of errors at law. Iowa R.App.P. 4. We affirm.

I. Background Facts and Proceedings. The State produced evidence of a crime spree that took place over a nine-day period in five different states. In the interest of brevity, we shall relate in detail only those facts that are pertinent to Mitchell's conviction for a single incident of sexual abuse in Fort Dodge, Iowa.

On March 17, 1988, a dancer named Susan was working in Fort Dodge at a bar called Scarlett O'Hara's. As Susan was leaving the bar about 1 a.m., she encountered defendant Louis Mitchell in the parking lot. They exchanged casual conversation about whether Susan was finished dancing for the night. Susan got into her car and drove to the Eilers Motel where she was staying.

Mitchell was also staying at the Eilers Motel. He pulled into the parking lot just as Susan arrived. Again they exchanged conversation as they entered the motel. Later, while Susan was watching television in her room, Mitchell and his friend, Don Ochs, appeared at her door. Mitchell made introductions in the hallway. Then he and Ochs returned to their room.

Susan, meanwhile, was awaiting a phone call from her boyfriend and for a coworker to stop by for a haircut. At about 2 a.m. Mitchell returned, this time alone, and asked if he could talk to Susan for a while. Assuming that he was bored, Susan let him in. After a few minutes of watching television, Mitchell drew a sawed-off shotgun from under his jacket. He then grabbed Susan by the collar and took her at gun point down the hall to his room to "party" with him and Ochs.

In Mitchell's room, Susan was beaten about the head and face and forcibly raped by both Mitchell and Ochs. Susan sustained two black eyes and a bruised ear. Thereafter Mitchell returned to Susan's room to collect her belongings. Susan was forced to leave the motel with Mitchell and Ochs at about 4:30 a.m. She was told that if she did not cooperate, she would be handcuffed and then thrown in the trunk of Mitchell's car.

Ochs drove Susan's car and abandoned it in Perry, Iowa. The trio then proceeded in Mitchell's car to Chadron, Nebraska, where they checked into another motel.

For the next nine days, Susan traveled with Mitchell and Ochs through Nebraska, Wyoming, Colorado and South Dakota before returning to Iowa. Susan testified that Mitchell told her that he and Ochs had killed others and would kill her too if she made any attempt to escape. During the trip, Mitchell and Ochs made brief stops to visit friends and relatives. When encountering others, Susan was told to shield her black eyes from sight or explain that they were the result of an "accident."

Upon returning to Iowa, Mitchell dropped off Ochs outside Fort Dodge. Mitchell then attempted to peddle a large quantity of stolen liquor and cigarettes through another friend, Don Allbee. While Susan was momentarily left alone with Allbee in Mitchell's car, she told him about her "predicament." Over defense counsel's objection, Susan was allowed to testify that Allbee told her Louis had mentioned "it" and Allbee suggested he might be able to help her. He thought he could divert Mitchell at some point so that Susan could get away.

That evening, while in a motel in Fort Dodge with Mitchell and Allbee, Susan made her getaway. Mitchell was sleeping soundly and Allbee reportedly "looked the other way." Susan ran to a farmhouse where she contacted authorities concerning her nine-day ordeal.

Mitchell was arrested two weeks later in Oklahoma City for a traffic violation. Mitchell gave the officer a false name. After running a check on the car's license plate number, the officer discovered that Mitchell was wanted for kidnapping. While sitting in the back of a squad car en route to jail, Mitchell slashed his wrists in an apparent suicide attempt.

In a lengthy and detailed opinion, the district court found that Susan's removal from her room to Mitchell's room in the Eilers Motel was incidental to the principal crime of sexual abuse and could not stand by itself as an independent act of kidnapping. The court further found that the subsequent act of leaving the motel and traveling west bore all the hallmarks of the asportation element of kidnapping--increased harm to the victim, easier escape for the perpetrator, reduced risk of detection--but because no further sexual abuse occurred within Iowa, the State failed to prove the intent element of the offense. See Iowa Code § 710.1 (defining kidnapping). Finally, the court could not find beyond a reasonable doubt that any sexual acts occurring in the other states were nonconsensual. Accordingly, the court acquitted Mitchell of kidnapping but found him guilty of violating Iowa Code section 709.3(3)--second-degree sexual abuse committed while aided and abetted by another person.

On appeal, Mitchell's principal contention is that Iowa Code section 709.3 is not a lesser-included offense of first-degree kidnapping. Mitchell also alleges prejudicial error in the introduction of evidence concerning his suicide attempt and the hearsay statements attributed to Don Allbee. We shall consider the arguments in turn.

II. Lesser-included Offense. At trial, Mitchell argued an "all or nothing" defense. Either his sexual contact with Susan was consensual and her travels with him voluntary, or they were not. Factually, there seems no dispute that if sexual abuse occurred at all, it was committed by Mitchell while aided and abetted by Don Ochs.

The question on appeal is whether second-degree sexual abuse as set forth in Iowa Code section 709.3(3) meets the legal test for a lesser-included offense of first-degree kidnapping under the standard announced in State v. Jeffries, 430 N.W.2d 728 (Iowa 1988). In a case predating Jeffries, this court held that second-degree sexual abuse is a lesser-included offense under the alternative charged. See State v. Whitfield, 315 N.W.2d 753, 755 (Iowa 1982). Mitchell argues, however, that the elements of the two offenses are not congruent and that Whitfield cannot withstand scrutiny under the Jeffries analysis.

We confirmed in Jeffries the now-familiar "strict statutory elements" test which requires that the lesser offense be composed solely of some, but not all of the elements of the greater offense so that the greater offense cannot be committed without committing the lesser offense. Id. at 736. We make the lesser-included determination by putting the offenses side by side and comparing the elements. The crime of first-degree kidnapping charged in this case contains the following elements: confining or removing a person, without consent, with the intent to inflict serious injury or sexual abuse and intentionally subjecting the person to sexual abuse. Iowa Code §§ 710.1 and 710.2. The crime of second-degree sexual abuse contains the following elements: commission of a sex act by force or against the will of another person, aided or abetted by one or more other persons. Iowa Code §§ 709.1 and 709.3(3).

Mitchell claims that the latter element of second-degree sexual abuse--participation by an accomplice--is not present in kidnapping in the first degree and hence disqualifies the crime as a lesser-included offense. Mitchell seems to confuse, however, the definition of sexual abuse found in section 709.1 with the elements of various degrees of sexual abuse crimes under sections 709.2, 709.3, and 709.4. Under Jeffries, we compare the latter, not the former.

Iowa Code section 709.1 defines sexual abuse as any sex act performed by the participants (1) by force against the will of another or (2) with one who is mentally incapable of giving consent or (3) with a child. The various sex abuse crimes elaborate on this concept by degree. Thus first-degree sexual abuse requires proof of serious injury. See Iowa Code § 709.2. Second-degree sexual abuse, in addition to the accomplice alternative, may be established by proof that a weapon was used or threatened or one participant was under the age of twelve. See Iowa Code § 709.3. Third-degree sexual abuse embraces the crime as defined in section 709.1, plus acts of incest.

All of these crimes are sexual abuse in one form or another. Contrary to Mitchell's suggestion, we are not convinced that the legislature intended only the most basic definition of sexual abuse to form the foundation for a first-degree kidnapping prosecution. Were we to accept such an argument,...

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