State v. Newman
| Decision Date | 23 December 1981 |
| Docket Number | No. 64760,64760 |
| Citation | 313 N.W.2d 484 |
| Parties | STATE of Iowa, Appellee, v. James Clifford NEWMAN, Loren Robie Wilson, and Delbert Max Vanderpool, Appellants. |
| Court | Iowa Supreme Court |
Nicholas S. Krpan, Gerald R. Ralph and William L. Kutmus, Des Moines, for appellants.
Thomas J. Miller, Atty. Gen., Julie F. Pottorff, Asst. Atty. Gen., and Dan L. Johnston, Polk County Atty., for appellee.
Considered en banc.
This is a consolidated appeal by defendants James Clifford Newman, Loren Robie Wilson, and Delbert Max Vanderpool from convictions and sentences for second-degree burglary under sections 713.1 and 713.3, The Code Supp. 1977. Although they urge two contentions, they preserved error on only one of them. They contend the trial court erred in overruling their motions to dismiss and for acquittal on the ground that the facts alleged do not constitute the offense. We affirm the trial court.
Defendants waived a jury, and the cases were jointly tried to the court. The State's evidence was presented by stipulation. It showed that Denny Hughes heard a drilling sound from a laundromat next door to his place of business in Des Moines. The laundromat was open to the public at the time. When Hughes went next door to investigate, he observed defendant Wilson drilling on the lock of a coin changing machine with an electric drill. Defendant Newman was nearby. When Hughes asked what they were doing, the two men said they were "fixing the machine." Defendant Vanderpool entered the premises and assured Hughes "everything was okay." Hughes returned to his place of business and asked his partner to call the police.
When the police arrived, defendants were fleeing from the scene. They were apprehended after a chase. They did not have permission to be drilling into the coin changer. It contained $200 at the time.
By motions to dismiss and for judgment of acquittal defendants alleged the facts did not constitute burglary. The trial court overruled their motions and, after submission of the case, found defendants guilty of the charge. Following sentencing, they appealed.
They seek reversal on two grounds. One is the alleged vagueness and overbreadth of section 713.1, and the other is the alleged error in overruling their motions to dismiss and for acquittal. They did not urge their constitutional ground by pretrial motion nor did they obtain a trial court ruling on it. Therefore they did not preserve error on that ground. State v. Montgomery, 243 N.W.2d 596, 597 (Iowa 1976); State v. Ritchison, 223 N.W.2d 207, 214 (Iowa 1974).
The only question presented under the record is whether breaking or entering a coin changing machine can constitute burglary under section 713.1.
The legislature may define crimes as it wishes subject to constitutional constraints. In defining burglary, section 713.1 provides:
Any person, having the intent to commit a felony, assault or theft therein, who, having no right, license or privilege to do so, enters an occupied structure or area enclosed in such a manner as to provide a place for the keeping of valuable property secure from theft or criminal mischief, such occupied structure or place not being open to the public, or who remains therein after it is closed to the public or after the person's right, license or privilege to be there has expired, or any person having such intent who breaks an occupied structure or other place where anything of value is kept, commits burglary.
No dispute exists here concerning defendants' intent to commit a theft. Nor is there any dispute that they broke or entered the coin changer. The only controversy is whether the coin changer is either an "occupied structure" or "enclosed area" within the meaning of the statute.
Our objective is to ascertain legislative intent. We must look to the object to be accomplished, the evils and mischief sought to be remedied, or the purpose to be subserved, and place on the statute a reasonable construction to accomplish the evident legislative intent. State v. Johnson, 216 N.W.2d 335, 337 (Iowa 1974). Because the statute is penal, the rule of strict construction comes into play in doubtful cases. State v. Welton, 300 N.W.2d 157, 160 (Iowa 1981). However, the rule of strict construction is not to be used to inject doubt when legislative intent is evident through a reasonable construction of the statute. State v. Lindsey, 165 N.W.2d 807, 810 (Iowa 1969).
We have recognized that section 713.1 defines three alternative offenses:
They have two elements in common. The common elements are the requisite intent and the absence of authority. The requisite intent is "the intent to commit a felony, assault or theft (in the place involved)." Id. The requisite absence of authority is "no right, license or privilege" to do the act involved. Id. When those elements exist, a person is guilty of burglary who (1) "enters an occupied structure or area enclosed in such a manner as to provide a place for the keeping of valuable property secure from theft or criminal mischief, such occupied structure or place not being open to the public," or (2) "who remains therein after it is closed to the public or after the person's right, license or privilege to be there has expired," or (3) "who breaks an occupied structure or other place where anything of value is kept ...." Id.
State v. Sangster, 299 N.W.2d 661, 662-63 (Iowa 1980). Because these definitions are alternative, they are independent and disjunctive. They are not dependent or conjunctive.
The section uses two terms in describing property in which burglary may occur: an "occupied structure" and an "area enclosed." An "occupied structure" is separately defined, but an "area enclosed" is not. See § 702.12. We assume, without deciding, that the coin changer was not an occupied structure under the statutory definition.
A coin changer is nevertheless covered by the statute if it is in an "area enclosed in such manner as to provide a place for the keeping of valuable property secure from theft or criminal mischief." It seems self evident that a coin changing machine is such a place.
Because these words are not technical and do not have a peculiar and appropriate meaning in law, we must construe them "according to the context and the approved usage of the language." § 4.1(2). In common usage, "area" includes "any specific extent of space or surface." Webster's Third New International Dictionary 115 (1976). A sealed and locked coin changer has four walls, a top and bottom. The secure exterior of the machine surrounds a mathematically quantifiable volume. It is thus an enclosed area under the plain language of the statute.
This conclusion is consistent with evident legislative intent. The statute is substantially broader than common law burglary and supplants a number of prior statutory offenses. See 4 J. Yeager and R. Carlson, Iowa Practice: Criminal Law and Procedure § 293 (1979). The gist of the present offense is a trespass against a secure place with the requisite intent. The trespass element distinguishes the offense from theft, and the intent element distinguishes it from criminal mischief. The ordinary meaning of enclosed area and this distinction are reflected in II Iowa Uniform Jury Instructions No. 1313 (1978):
An "enclosed area" is one which is so designed, built or enclosed that it is secure for the keeping of valuable property, and it reasonably appears the area was meant to be secure from theft or criminal mischief. An "enclosed area" need not be a structure or building.
Defendants assert, however, that a coin changer cannot be the subject of burglary because it is not large enough to hold a person. It is true that one of the alternative burglary offenses is committed by remaining in a place after it is closed or after expiration of the right to be there. Although size is not an element of the crime, the place would have to be large enough to hold a person for the offense to occur under that alternative. Nonetheless that is simply one way in which burglary may be committed. It is not the only one. When the legislature also made it burglary to break or enter "a place for the keeping of valuable property secure from theft or criminal mischief," it defined a place of a different kind. The size of the place is not a limitation in that situation.
Although statutory language differs, courts in other jurisdictions have recognized that similar places can be the subject of burglary. See State v. Wilson, 7 Ariz.App. 384, 439 P.2d 831 (1968) (); Estevez v. State, 189 So.2d 830 (Fla.Ct.App.1966) (); People v. Oliver, 129 Ill.App.2d 83, 262 N.E.2d 597 (1970) (); Shumate v. Commonwealth, 433 S.W.2d 340 (Ky.1968), cert. denied, 394 U.S. 993, 89 S.Ct. 1485, 22 L.Ed.2d 769 (1969) (); Commonwealth v. Marganon, 370 S.W.2d 821 (Ky.1963) (); State v. Stoner, 473 S.W.2d 363 (Mo.1971) (); Annot., 45 A.L.R.3d 1286 (1972).
We hold that breaking or entering a coin changing machine can constitute burglary under section 713.1. Therefore the trial court did not err in overruling defendants' motions to dismiss and for judgment of acquittal.
AFFIRMED.
All Justices concur except REYNOLDSON, C. J., and UHLENHOPP...
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