State v. Ortiz

• Decision Date: 15 December 2017
• Docket Number: No. 16-1980,16-1980
• Parties: STATE of Iowa, Appellee, v. Dustin James ORTIZ, Appellant.
• Court: Iowa Supreme Court

905 N.W.2d 174

STATE of Iowa, Appellee,

v.Dustin James ORTIZ, Appellant.

No. 16-1980

Supreme Court of Iowa.

Filed December 15, 2017

Mark C. Smith, State Appellate Defender, and Stephan J. Japuntich, Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Kevin Cmelik, Thomas E. Bakke, Assistant Attorney Generals, John P. Sarcone, County Attorney, and Olu A. Salami, Assistant County Attorney, for appellee.

WATERMAN, Justice.

In this appeal, we are asked to decide whether the district court correctly instructed the jury on robbery offenses in light of a 2016 amendment adding the offense of third-degree robbery. 2016 Iowa Acts ch. 1104, § 4 (codified at Iowa Code § 711.3A (2017)). A store owner saw a man steal a skirt and gave chase until the man displayed a knife. The defendant was arrested nearby with a knife and the stolen skirt, identified by the owner, and charged with first-degree robbery. The court instructed the jury on that charge and related offenses. Defense counsel objected that the instructions failed to distinguish between second-degree robbery and third-degree robbery. The court refused to modify the instruction on second-degree robbery as requested, and the jury found the defendant guilty of that offense. The defendant appealed, and we retained the appeal.

The defendant's appellate counsel argues the district court erred in giving jury instructions on second- and third-degree robbery that failed to differentiate between those offenses. He further asserts a claim of ineffective assistance of trial counsel for failing to challenge the robbery statutes as unconstitutionally vague and also raises an anticipatory claim of prosecutorial vindictiveness.

On our review, we conclude the evidence was sufficient to support a finding of simple assault and a conviction for third-degree robbery but insufficient to support the conviction for second-degree robbery. We reject the vagueness challenge to the robbery statutes. We observe that because the legislature defined second-degree robbery to exclude third-degree robbery, the marshaling instructions for the jury must distinguish those offenses by incorporating factually applicable alternative definitions of aggravated or serious assault that support a second-degree robbery charge. We construe this jury verdict as necessarily finding the defendant guilty of third-degree robbery. We vacate the second-degree robbery conviction and remand for entry of a judgment of conviction for third-degree robbery and resentencing. We do not reach the prosecutorial vindictiveness claim.

I. Background Facts and Proceedings.

We discuss the evidence in the light most favorable to the guilty verdict. Patricia Chavez owns La Estrellita Fashion, a clothing store in Des Moines. On June 15, 2016, Chavez was working alone at the store when she saw a man grab the skirt off a mannequin outside. Chavez ran outside and yelled at the man, who was walking away.¹ He was a tall, thin white male wearing a black shirt and black shorts and carrying a backpack. As Chavez began to pursue him, the man showed Chavez a knife without stopping or turning to face her. Frightened by the display of the knife, Chavez ran back into her store, locked the door, and called the police. Sergeant Brian Vance was dispatched, and while he was en route to the scene, another officer saw a man matching Chavez's description. Sergeant Vance detained that suspect, Dustin James Ortiz. Ortiz claimed he had just stepped off the bus and was going to a friend's house. Sergeant Vance patted him down and found a pocketknife in the front pocket of his shorts.

An officer took Chavez to Ortiz, who was wearing a tank top rather than a black shirt when Chavez was asked if she could identify him. Chavez initially hesitated, then identified Ortiz as the man who stole the skirt. Ortiz was arrested. Police searched his backpack and found the stolen skirt inside it. Ortiz was taken to the police station to be interviewed, and while there, he removed a second pocketknife from his waistband and handed it over to an officer.

On July 22, Ortiz was charged by trial information with robbery in the first degree in violation of Iowa Code sections 711.1 and 711.2. Ortiz filed a written arraignment in which he demanded his right to speedy trial. The case proceeded to a jury trial. Chavez testified through an interpreter. Sergeant Vance and two other officers also testified. After both sides rested, the court held a hearing on the jury instructions. Ortiz was charged with first-degree robbery, and the jury was also to be instructed on the lesser included offenses of second-degree robbery, third-degree robbery, and assault.

Jury Instruction No. 17 (lesser included offenses) stated,

The allegations of the Trial Information in Count I includes not only the offense of Robbery in the First Degree but also the lesser included offenses of Robbery in the Second Degree, Robbery in the Third Degree, and Assault.

You will convict the defendant of the highest of said above named offenses of which he is proven guilty beyond a reasonable doubt, if any, and you will acquit him of any and all offenses of which he was not proven guilty.

Jury Instruction 18 (first-degree robbery) stated,

The State must prove all of the following elements of Robbery in the First Degree:

1. On or about the 15th day of June, 2016, the defendant had the specific intent to commit a theft.

2. To carry out that intention or to assist him in escaping from the scene, with or without the stolen property, the defendant:

a. Committed an assault on Patricia Chavez or

b. Threatened Patricia Chavez with or purposefully put Patricia Chavez in fear of immediate serious injury; and

3. Was armed with a dangerous weapon.

If the State has proved all of the elements, the defendant is guilty of Robbery in the First Degree. If the State has failed to prove any one of the elements, the defendant is not guilty of Robbery in the First Degree, and you will then consider the charge of Robbery in the Second Degree as explained in Instruction No. 19.

Ortiz's counsel objected to the court's instruction on second-degree robbery, requesting that the assault element be modified by adding: "with the intent to inflict serious injury on Patricia Chavez." Jury Instruction No. 19 (second-degree robbery), with Ortiz's requested change italicized in brackets, stated,

The State must prove all of the following elements of Robbery in the Second Degree:

1. On or about the 15th day of June, 2016, the defendant had the specific intent to commit a theft.

2. To carry out that intention or to assist him in escaping from the scene, with or without the stolen property, the defendant:

a. Committed an assault [with the intent to inflict serious injury ] on Patricia Chavez or

b. Threatened Patricia Chavez with or purposefully put Patricia Chavez in fear of immediate serious injury.

If the State has proved all of the elements, the defendant is guilty of Robbery in the Second Degree. If the State has failed to prove any one of the elements, the defendant is not guilty of Robbery in the Second Degree, and you will then consider the charge of Robbery in the Third Degree as explained in Instruction No. 20.

Ortiz's counsel asserted that "if the jury were to find Mr. Ortiz guilty based on elements number 1 and 2(a) as written in [the] proposed instruction without any clarification, then that's [third-degree] robbery." Ortiz argued that adding "with the intent to inflict serious injury" was the only way to differentiate second-degree robbery (Jury Instruction No. 19) from third-degree robbery (Jury Instruction No. 20). The State opposed Ortiz's proposed change to the second-degree robbery instruction, arguing the instructions, as modified, would "add an extra element that the government has to prove." The court agreed with the State and refused to modify the second-degree robbery instruction. Jury Instruction No. 19 was given without the bracketed language requested by Ortiz.

Jury Instruction No. 20 (third-degree robbery) stated,

The State must prove all of the following elements of Robbery in the Third Degree:

1. On or about the 15th day of June, 2016, the defendant had the specific intent to commit a theft.

2. To carry out that intention or to assist him in escaping from the scene, with or without the stolen property, the defendant committed an assault as that term is defined in Instruction No. 22.^[2]

If the State has proved all of the elements, the defendant is guilty of Robbery in the Third Degree. If the State has failed to prove any one of the elements, the defendant is not guilty of Robbery in the Third Degree, and you will then consider the charge of Assault as explained in Instruction No. 21.

Jury Instruction No. 21 gave the elements for assault:

The State must prove both of the following elements of the crime of Assault:

1. On or about the 15th day of June, 2016, the defendant did an act which was intended to cause pain or injury, or was intended to result in physical contact which was insulting or offensive, or was intended to place Patricia Chavez in fear of an immediate physical contact which would have been painful, injurious, insulting or offensive to her.

2. The defendant had the apparent ability to do the act.

If the State has proved both of the elements, the defendant is guilty of Assault. If the State has failed to prove either of the elements, the defendant is not guilty.

The jury found Ortiz guilty of robbery in the second degree. The "armed with a dangerous weapon" element was the only difference between first-degree and second-degree robbery under the court's instructions. In acquitting Ortiz of first-degree robbery, the jury necessarily found the State failed to prove he was "armed with a dangerous weapon."

Ortiz filed a motion for new trial and a motion in arrest of judgment. Ortiz argued that if the jurors found him guilty under the "assault" theory of Jury Instruction No. 19, they would actually be finding him guilty of third-degree...