State v. Newman

• Decision Date: 24 November 1982
• Docket Number: No. 65992,65992
• Citation: 326 N.W.2d 788
• Parties: STATE of Iowa, Appellee, v. Donald Eugene NEWMAN, Appellant.
• Court: Iowa Supreme Court

Page 788

326 N.W.2d 788

STATE of Iowa, Appellee, v. Donald Eugene NEWMAN, Appellant.

No. 65992.

Supreme Court of Iowa.

Nov. 24, 1982.

Wayne H. McKinney, Jr., Des Moines, for appellant.

Thomas J. Miller, Atty. Gen., Roxann M. Ryan, Asst. Atty. Gen., Dan Johnston, Polk County Atty., Jan V. Berry and James Smith, Asst. Polk County Attys., for appellee.

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

LeGRAND, Presiding Justice.

In this consolidated appeal, defendant challenges his conviction and subsequent sentence for first degree kidnapping (Iowa Code § 710.2) and second degree sexual abuse (Iowa Code § 709.3). Defendant also challenges the trial court's denial of post conviction relief under Iowa Code ch. 663A. We affirm except as to the charge of sexual abuse, as to which we reverse.

We are today filing our opinion in a second case involving this defendant and involving, too, many of the same issues as are present here. See State v. Newman, 326 N.W.2d 796 (Iowa 1982).

From the evidence presented, the jury could have found that the victim, a sixteen-year-old girl, had been walking alone in downtown Des Moines early during the evening of March 27, 1980. A man, later identified as defendant, stopped his car and asked her if she wanted a ride. At first, the victim declined but then got in the car after defendant showed her a badge and identified himself as a police officer. Instead of driving towards the victim's destination, the defendant drove the victim, against her wishes, to a city park. There he threatened her, prevented her from leaving the car, and forced her to perform several sex acts.

The victim immediately reported the attack to the police. An investigation resulted in defendant's arrest just a few days later. Defendant raises five issues on his direct appeal and one additional issue on this appeal from denial of postconviction relief. We consider each separately.

I. Sufficiency of the Evidence.

Defendant claims there was insufficient evidence for the jury to find, beyond a reasonable doubt, that the victim had been kidnapped. Specifically, he claims the confinement and asportation of the victim were "merely incidental" to the various sexual assaults and did not constitute the crime of kidnapping. We disagree.

In reviewing questions relating to the sufficiency of evidence, we examine the whole record in the light most favorable to the State, accept all legitimate inferences permitted by the evidence, and uphold the jury's finding when there is substantial evidence to support it. State v. Knupp, 310 N.W.2d 179, 182 (Iowa 1981).

Iowa Code section 710.1 provides, in pertinent part:

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:

....

3. The intent to inflict serious injury upon such person, or to subject the person to sexual abuse.

Kidnapping in the first degree is defined in Iowa Code section 710.2 and includes kidnapping which subjects the victim to intentional sexual abuse. The issue raised by defendant is that there was no substantial evidence of the victim's confinement or removal sufficient to satisfy those terms as they are used in the statute.

In State v. Rich, 305 N.W.2d 739 (Iowa 1981), we first examined the words "confines" and "removes" as used in section 710.1. We held the legislature did not intend that statute to apply to sexual abuse attacks where the confinement or asportation of the victim had no significance independent of the actual assault. Id. at 745. In ruling that a slight or incidental act of asportation would not sustain a conviction, we followed a recent trend which rejects the view that any movement of the victim is enough to constitute kidnapping. Id. at 744; see also Note, Kidnapping in Iowa: Movement Incidental to Sexual Abuse, 67 Iowa L.Rev. 773, 780 (1982).

In Rich we also held there is sufficient confinement or removal to constitute kidnapping under Iowa Code section 710.1 when the acts relied on either:

1. substantially increase the risk of harm to the victim; or

2. significantly lessen the risk of detection; or

3. significantly facilitate escape following the consummation of the offense.

305 N.W.2d at 745.

Since Rich, we have applied this test in several other factual situations which were summarized in State v. Mead, 318 N.W.2d 440 (Iowa 1982). In Mead, we reversed defendant's kidnapping charge after finding insufficient evidence of confinement. In State v. Marr, 316 N.W.2d 176, 180 (Iowa 1982), we reversed a kidnapping conviction after finding insufficient evidence of removal.

In the present case, however, unlike Mead and Marr, there was substantial evidence upon which a jury could find beyond a reasonable doubt that the victim's removal and confinement were more than incidental to the episodes of sexual abuse. Defendant lured the victim into his car after claiming he was a police officer and flashing a false badge of identity. He then transported her to various places around town. Using physical force, he thwarted at least two escape efforts before threatening to shoot the victim if she made any further attempts to get out of the moving car. The risk of serious injury to the victim further increased when the defendant, while he was driving the car, forced the victim to perform various sexual acts. Then, after threatening the victim, defendant drove to a secluded place, dragged her into a wooded area, again sexually assaulting her. These facts far exceed slight or incidental acts of confinement and asportation. We hold that the trial court did not err in overruling defendant's motion for directed verdict on this ground. Cf. State v. Folck, 325 N.W.2d 368, (conviction upheld when victim was driven short distance to remote place); Knupp, 310 N.W.2d at 183 (conviction upheld when victim was moved seven blocks to a more isolated area).

II. Constitutionality of Iowa's Kidnapping Statute.

Defendant claims that Iowa's definition of kidnapping, section 710.1, is unconstitutional on its face because the statute is vague and overbroad, failing to give fair notice of the conduct proscribed. Specifically, defendant asserts the legislature's failure to define the terms "removes" and "confines" is fatal. We reject defendant's argument.

We considered a somewhat similar claim in State v. Whetstine, 315 N.W.2d 758 (Iowa 1982), (quoting State v. Sullivan, 298 N.W.2d 267, 270-71 (Iowa 1980)), where we said:

The principles we apply in this type of case are well established .... The person mounting the constitutional challenge on a legislative enactment carries the heavy burden to rebut a strong presumption of constitutionality. If a statute can be made constitutionally definite by a reasonable construction, this court is under the duty to give the statute that construction.

The specificity [that] due process requires of a penal statute need not be apparent from the face of the statute but may be ascertained by references to prior judicial decisions, similar statutes, the dictionary, or common generally accepted usage.

315 N.W.2d at 764.

When these principles are applied to the instant facts, defendant's constitutional challenge fails because he has not carried his heavy burden of rebutting the presumed constitutionality of section 710.1. Even if we accept defendant's argument--which we do not do--that the statute does not give a person of ordinary intelligence fair notice of what is prohibited, defendant's argument ignores the guidelines established by Rich and cases following the Rich rationale. They provide the specificity necessary to meet constitutional standards. Defendant's argument is without merit.

III. Prejudicial Testimony.

One of the State's witnesses, Detective Jones, testified that he was the officer who arrested the defendant. In testifying to the details of the arrest, Jones stated that he and his partner visited the defendant's home to determine whether defendant's blue Monza had been used in the abduction. After being invited into defendant's living room, Jones observed that defendant fit the general description given by the victim, including details that her assailant wore a gold ring and brown pointed-toe cowboy boots. The detective observed both of these items while talking to defendant. While this conversation was going on, Randy Wilson appeared and asked to speak with Detective Jones privately. Immediately after talking with Randy Wilson, the detective placed the defendant under arrest.

At this point defense counsel objected to testimony concerning what Randy Wilson told the officer. The trial court sustained defendant's objection and told the jury to disregard any testimony by Detective Jones as to anything that was said to him by Randy Wilson. Notwithstanding this admonition to the jury, defendant claims the trial court erred in failing to grant defendant's motion for mistrial because of testimony concerning Randy Wilson.

Assuming arguendo that defendant's objection was well taken, the trial court's action in striking the testimony and instructing the jury to disregard it cured any error. State v. Williams, 315 N.W.2d 45, 55-56 (Iowa 1982). We hold defendant has failed to show he was prejudiced, and consequently the trial court did not abuse its discretion in denying a new trial on this ground.

IV. Sexual Abuse as a Lesser Included Offense.

Defendant argues he cannot be punished for both first degree kidnapping and second degree sexual abuse because second degree sexual abuse is a lesser included offense of first degree kidnapping as charged in this case. Therefore, he says, pursuant to Iowa Code section 701.9, the lesser offense merges into the greater. Although tacitly agreeing that sexual abuse is a lesser included offense of...