State v. Oldfather, 65142

• Decision Date: 17 June 1981
• Docket Number: No. 65142,65142
• Citation: 306 N.W.2d 760
• Parties: STATE of Iowa, Appellant, v. Bruce W. OLDFATHER, Appellee.
• Court: Iowa Supreme Court

Page 760

306 N.W.2d 760

STATE of Iowa, Appellant, v. Bruce W. OLDFATHER, Appellee.

No. 65142.

Supreme Court of Iowa.

June 17, 1981.

Phillip N. Norland, Worth County Atty., and John J. Hines, Asst. Worth County Atty., for appellant.

William Pappas and Barry L. Anderson, Mason City, for appellee.

Considered by UHLENHOPP, P. J., and HARRIS, McGIVERIN, LARSON and SCHULTZ, JJ.

LARSON, Justice.

Bruce W. Oldfather was charged with "terrorism" under section 708.6, Code Supp.1977, as a result of an encounter between two automobiles on a public highway. Motions for directed verdict, made at the conclusion of the State's evidence and at the conclusion of the case, challenged the applicability of the terrorism statute and the sufficiency of the evidence. These motions were denied, and the jury returned a verdict of guilty. Oldfather again raised these issues by filing a motion in arrest of judgment under Iowa Rule of Criminal Procedure 23(3)(a). This motion was sustained, and the State appealed, under the authority of rule 23(4)(c). We affirm the trial court, with instructions for further disposition.

At trial, the State's evidence showed that a station wagon, allegedly driven by Oldfather, was "repeatedly engaged in maneuvers calculated to force another vehicle off the road." Members of a family named Kuhl, occupants of the other vehicle, testified that the station wagon "tailgated" their car, passed them, pulled into their lane, and suddenly braked to a speed of 15 m. p. h., then prevented them from passing, braking and blocking in an apparent attempt to force the Kuhl car to pull over. At one point the Oldfather car allegedly pulled sharply into the Kuhl lane, and a collision with the Kuhl car was avoided only by swift, evasive action by its driver.

While not disputing that these events may have in fact "terrorized" the occupants of the Kuhl car, Oldfather nevertheless maintained in his motions for directed verdict and for arrest of judgment that this is not the type of act proscribed by our terrorism statute, which provides:

A person commits a class D felony when the person does any of the following with the intent to injure or provoke fear or anger in another:

1. Shoots, throws, launches, or discharges a dangerous weapon at or into any building, vehicle, airplane, railroad engine or railroad car, or boat occupied by another person, and thereby places the occupants thereof in reasonable apprehension of serious injury.

2. Threatens to commit a forcible felony under circumstances raising a reasonable expectation that the threat will be carried out.

§ 708.6, Code Supp.1977 (emphasis added). The trial court granted the motion on two grounds: that the terrorism statute was inapplicable and that the State had failed to identify Oldfather as the driver.

On appeal, the State argues that a motion in arrest of judgment is not available under the circumstances of this case because it may not be used to raise a defect in the information or the sufficiency of the evidence. The State argues that even if arrest of judgment procedures could be implemented, the court erred in granting it because the acts charged did fall within the terrorism statute and the identification evidence was sufficient to generate a jury issue.

I. The motion in arrest of judgment. Rule 23(3)(a) provides that

(a) motion in arrest of judgment is an application by the defendant that no judgment be rendered on a finding, plea, or verdict of guilty. Such motion shall be granted when upon the whole record no legal judgment can be pronounced.

(Emphasis added.)

We may summarily deal with the issue of the sufficiency of the identification testimony: A motion in arrest of judgment may not be used to challenge the sufficiency of evidence. State v. Young, 153 Iowa 4, 6, 132 N.W. 813, 814 (1911); 21 Am.Jur.2d Criminal Law § 522, at 508 (1965); 24 C.J.S. Criminal Law § 1526, at 355 (1961). The trial court erred insofar as the motion was sustained on that ground; however, it sustained the motion on the additional ground that the terrorism statute was inapplicable to the facts of the case. The State argues that this was error because the "appropriateness of the charge" cannot be challenged by a motion in arrest of judgment. According to its argument, that determination must be made by the jury "after receiving appropriate instructions." The State contends the decision as to what charges are filed is within the discretion of the county attorney, citing State v. Uebberheim, 263 N.W.2d 710, 712 (Iowa 1978); and if a trial court were to insert itself into the process it must do so by its rulings on directed-verdict or new-trial motions, not through arrest of judgment. However, the county attorney's decision as to what criminal charges shall be brought will obviously not be binding upon the trial court, which must decide what issues shall ultimately be submitted to the jury or reduced to judgment. Allowing a jury to decide, as the State suggests, whether terrorism was an "appropriate" charge would, in effect, make it a question of fact. That determination must be made by the trial court, not the jury. That still leaves the ultimate procedural issue, however, whether the court may do so by arresting the judgment.

The arrest of judgment procedure has been a part of our criminal procedure statutes for many years, in substantially the same form as it now exists. In its original form the statute provided two grounds for relief: (1) when a demurrer could be sustained, and (2) as in the present rule, "when upon the whole record, no legal judgment can be pronounced." The demurrer-based grounds were eliminated to make the procedure consistent with the rule (now embodied in Iowa R.Crim.P. 10(2)(b)) that defects in the indictment or information are waived if not raised prior to trial. State v. Kirkpatrick, 220 Iowa 974, 976 (1936); State v. Frey, 206 Iowa 981, 986-87, 221 N.W. 445, 448 (1928). The remaining ground for arrest of judgment is the one which Oldfather asserts: that "upon the whole record" no legal judgment could be pronounced. ¹

Our cases have not defined the term "whole record," although it is clear that it does not refer to the evidence of the trial itself. See State v. Bading, 236 Iowa 468, 471, 17 N.W.2d 804, 807 (1945); State v. Young, 153 Iowa at 6, 132 N.W. at 814; see also 21 Am.Jur.2d supra § 522, at 508; 24 C.J.S. supra § 1526 at 354. Recent cases, challenging the voluntariness of guilty pleas, illustrate one type of "record" which may be examined in arrest of judgment cases. The record in those cases consisted of coercion evidence outside the record of the reported proceedings. See, e. g., State v. Gruber, 281 N.W.2d 636, 638-39 (Iowa 1979); State v. Hellickson, 162 N.W.2d 390, 393 (Iowa 1968).

The State argues that the problem here, if any, is that there was insufficient evidence to support the charge and Oldfather's challenge is therefore beyond the reach of the arrest of judgment procedure. We believe, however, that the issue is not the sufficiency of the evidence, but one of statutory interpretation: whether the term "launch," as used in the statute, is broad enough to be applicable here. The applicability of the underlying statute, like the evidence of coercion, lies outside the scope of recorded proceedings, but is nonetheless a part of the "whole record," for purposes of arresting judgment.

The view that the arrest of judgment procedure may be used in such a case is implicit in State v. Wyatt, 207 Iowa 319, 222 N.W. 866 (1929). In Wyatt it was not clear which of two bootlegging statutes were alleged to have been violated. One statute required a shipment between a consignor and a consignee, the other did not. It appeared to the court that the statute whose violation had been charged was inapplicable and, while it did not discuss the procedural aspects, held a motion in arrest of judgment should have been granted. Other authorities lend support to this view:

It is ground for arrest of judgment that it appears from the indictment that is based on a statute which had been repealed, or on one which is unconstitutional and void, or which imposes no penalty for its infraction, or which is not applicable.

24 C.J.S. supra § 1544 at 371 (emphasis added); accord, Hopewell v. State, 22 Ind.App. 489, 494, 54 N.E. 127, 129 (1899).

There is also a practical consideration which lends support to this view: Once a verdict of guilty is returned, a trial court has only three options: (1) grant a new trial, (2) enter judgment on the verdict, or (3) arrest the judgment. ² See State v. Sullivan, 215 N.W.2d 491, 493 (Iowa 1974); Iowa R.App.P. 23. If the underlying statute is not applicable, granting a new trial would leave the original charge intact and would merely perpetuate the issue. And entering judgment, void under the circumstances, would obviously be inappropriate. Arrest of judgment appears to be the only suitable vehicle by which to raise the issue after trial.

We conclude the arrest of judgment procedure of ...