State v. Rich

• Decision Date: 13 May 1981
• Docket Number: No. 64925,64925
• Citation: 305 N.W.2d 739
• Parties: STATE of Iowa, Appellee, v. Guy E. RICH, Appellant.
• Court: Iowa Supreme Court

Page 739

305 N.W.2d 739

STATE of Iowa, Appellee, v. Guy E. RICH, Appellant.

No. 64925.

Supreme Court of Iowa.

May 13, 1981.

Douglas F. Staskal, Appellate Defenders Office, for appellant.

Thomas J. Miller, Atty. Gen., Mark R. Schuling, Asst. Atty. Gen., and David H. Correll, Black Hawk County Atty., for appellee.

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

SCHULTZ, Justice.

On March 7, 1980, defendant, Guy Eugene Rich, was convicted of the following crimes: (1) kidnapping in the first degree in violation of section 710.2, The Code 1979; (2) sexual abuse in the third degree in violation of section 709.4(1), The Code 1979; and (3) robbery in the second degree in violation of section 711.3, The Code 1979. Defendant appeals from his convictions of first-degree kidnapping and second-degree robbery. He alleges that the evidence presented at trial was insufficient to prove the requisite elements of either charge beyond a reasonable doubt, and that the trial court committed reversible error by overruling his motions for a directed verdict of acquittal on each charge. We find no merit in either of defendant's assignments of error and affirm his convictions.

The facts are not in dispute. On August 12, 1979, defendant began employment as a custodian at Crossroads Shopping Center in Waterloo. Defendant reported to work around 10:30 p. m. on September 1. At approximately 11:15 Cynthia Renolds, who had been working late, left Reunion, the casual clothing store she managed. She took the day's proceeds with her for the purpose of making a night deposit. The proceeds, which consisted of approximately $2000, of which $1000 was cash, were contained in a locked, zippered cloth bank bag inside a briefcase. Because of the late hour the shopping center's exit doors were locked, and Renolds had to summon a custodian to let her out of the building. Defendant responded to her call but was allegedly unable to unlock the usual exit door because the key was bent. He informed Renolds that another exit would have to be used.

En route to the alternate exit defendant paused to look into a men's restroom while Renolds continued walking. Defendant then grabbed Renolds from behind, held a sharp object against her back, and told her he had a knife and to do what she was told and she would not get hurt. He led Renolds back to the corridor to the men's restroom, a few yards away, where he forced her to lie down on her stomach and tied her hands behind her back. Defendant then took Renolds into the restroom and sexually abused her.

Thereafter, defendant and Renolds left the restroom. Renolds asked defendant if she could take her purse and briefcase, which had been left in the corridor, with her. He said no and kicked both objects into a small room beside the restroom.

Defendant then led Renolds around a portion of the shopping center, stopping at a stair landing, where he had her lie on her back, ripped her bra off, and tied her left leg to the bannister with her bra and her right leg to the bannister with a rag. Defendant left Renolds there, but he subsequently returned and had her get into a large three-wheeled trash container. Defendant then covered Renolds with trash. She encountered difficulty in breathing, however, because plastic trash bags had been placed against her face, and she asked defendant to remove them, which he did.

Defendant wheeled Renolds into the custodians' maintenance room and then into a small wooden utility shed within the maintenance room. Defendant left but returned a short time later and tied Renolds' feet and checked to make sure her hands were still tied. Defendant then closed the door to the utility shed and left again. Approximately ten minutes later Renolds heard footsteps in the maintenance room and what she thought to be the sound of a zipper and pounding.

Subsequently, defendant wheeled Renolds out of the maintenance room back into the mall area of the shopping center. He left the trash container near an escalator and walked away. Renolds, who had managed to work herself free of her restraints, tipped the trash container over and ran to Sutter's Mill. She pounded on the doors of the restaurant and screamed for help, but to no avail. Defendant assailed her, striking her on the cheek with his fist, and placed the chain portion of his retractable key chain tightly around her neck, which impaired her breathing and prevented her from screaming. After warning Renolds that if she did not shut up he would kill her, defendant removed the chain from her neck, placed her back in the trash container, and re-bound her hands and feet.

Defendant then wheeled Renolds outside toward a brick building adjoining the mall. Renolds once again was able to work free from her bindings, struggled with defendant, tipped the trash container over, and ran to a parked car, the occupant of which helped her contact the police.

Defendant was apprehended in Las Vegas, Nevada, at a gambling casino. He had in his possession $47.14, a five-dollar gambling token, a leisure suit, miscellaneous toiletry articles, and a small blue suitcase that he purchased in Nevada at a cost of approximately ten dollars.

At the conclusion of the State's evidence defendant unsuccessfully moved for a directed verdict on the ground of insufficiency of the evidence. Defendant's motion was sufficient to preserve error. See State v. Holderness, 293 N.W.2d 226, 229-30) (Iowa 1980) (motion need not be renewed at close of all evidence to preserve appeal); Iowa R.Crim.P. 18(10)(a).

In reviewing the propriety of a trial court's ruling on a motion for a directed verdict in a criminal case, this court views the evidence in a light most favorable to the State. All legitimate inferences that may reasonably be deducted therefrom will be accepted. State v. Schrier, 300 N.W.2d 305, 306 (Iowa 1981). All of the evidence must be considered when determining evidentiary sufficiency. State v. Robinson, 288 N.W.2d 337, 340 (Iowa 1980). A trial court should submit a charged crime to the jury and should not direct a verdict, and a refusal to direct a verdict will be upheld, if there is any substantial evidence in the record reasonably tending to support the charge. State v. York, 256 N.W.2d 922, 927 (Iowa 1977); State v. Overstreet, 243 N.W.2d 880, 884 (Iowa 1976). Substantial evidence means such evidence as could convince a rational trier of fact that the defendant is guilty of the crime charged beyond a reasonable doubt. State v. Robinson, 288 N.W.2d at 339.

I. Kidnapping. The definition of kidnapping is contained in section 710.1, The Code 1979, which 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 ... subject the person to a sexual abuse.

....

Section 710.2 defines first-degree kidnapping: "Kidnapping is kidnapping in the first degree when the person kidnapped, as a consequence of the kidnapping, ... is intentionally subjected to torture or sexual abuse...."

Defendant claims that the State failed to prove the necessary element of confinement or removal of the victim. He maintains that this requirement of the kidnapping statute is not met when the confinement or asportation is merely incidental to the commission of sexual abuse. Defendant asserts that the trend of modern case law is to limit the scope of kidnapping to "true" kidnapping situations and urges this court to do likewise because the penalty for first-degree kidnapping is severe, greatly exceeding the penalty for third-degree sexual abuse. The State contends that the issue is not the distance traveled but whether the victim was subjected to unlawful removal and confinement, and that the asportation in this case was greater than that necessary to commit the crime of sexual abuse. Although the question at issue here was raised in State v. Holderness, 301 N.W.2d 733, 739-40 (Iowa 1981), we found it unnecessary to reach the question because the confinement and removal in that case could not be considered incidental to the offense of sexual abuse.

It is not contested that some degree of confinement or removal of the victim is present in most cases of sexual abuse. Neither chapter 710 (kidnapping) nor chapter 709 (sexual abuse) of the Code define the terms "confines" or "removes." However, section 709.1(1) does require an act "done by force or against the will" of the victim for one to be guilty of sexual abuse. At the request of defendant the trial court instructed the jury that the confinement or removal required for kidnapping must be "other than the confinement or removal incidental to the commitment (sic ) of another crime." Defendant does not claim that the jury was misled by this instruction or by other instructions on kidnapping given by the trial court. Defendant contends that, on the basis of the evidence presented, the trial court should have instructed the jury to return a verdict of acquittal on the kidnapping charge.

Both parties rely on decisions of other states to support their respective positions. Even though the statutory definitions of kidnapping and the penalties for conviction of the crime vary greatly among the states, only a few general theories concerning the requirement of confinement or asportation have evolved.

The Arizona Supreme Court, in State v. Jacobs, 93 Ariz. 336, 341-42, 380 P.2d 998, 1002, cert. denied, 375 U.S. 46, 84 S.Ct. 158, 11 L.Ed.2d 108 (1963), held that a minimum distance of asportation is not necessary for conviction of the crime of kidnapping. The court, citing People v. Chessman, 38 Cal.2d 166, 192, 238 P.2d 1001, 1017 (1951), cert. denied, 343 U.S. 915, 72 S.Ct. 650, 96 L.Ed. 1330, overruled, People v. Daniels, 71 Cal.2d...