State v. Taft

• Decision Date: 22 September 1993
• Docket Number: No. 92-840,92-840
• Citation: 506 N.W.2d 757
• Parties: STATE of Iowa, Appellee, v. David Lynn TAFT, Jr., Appellant.
• Court: Iowa Supreme Court

Page 757

506 N.W.2d 757

STATE of Iowa, Appellee, v. David Lynn TAFT, Jr., Appellant.

No. 92-840.

Supreme Court of Iowa.

Sept. 22, 1993.

Linda Del Gallo, State Appellate Defender and B. John Burns, Asst. State Appellate Defender, for appellant.

Bonnie J. Campbell, Atty. Gen., Thomas S. Tauber, Asst. Atty. Gen., Denver D. Dillard, County Atty., and Harold Denton, Asst. County Atty., for appellee.

Considered by McGIVERIN, C.J., and HARRIS, LARSON, CARTER, and LAVORATO, JJ.

LAVORATO, Justice.

In a bench trial, the district court ultimately convicted the defendant of three crimes: first-degree burglary, sexual abuse in the second degree, and assault with intent to commit sexual abuse with bodily injury. In his appeal, the defendant's main contention is that the district court subjected him to double jeopardy. In support of this contention, the defendant argues that the district court found him guilty of assault with intent to commit sexual abuse with bodily injury after initially finding him guilty of assault causing bodily injury, a lesser included offense. The defendant also contends (1) there was insufficient evidence to support the burglary conviction and (2) the district court erred in not suppressing one of the victim's eye witness out-of-court identification of him as the perpetrator.

We vacate the order that changed the original conviction from the lesser to the greater offense. We also vacate that part of the sentencing order pertaining to the sentence for the greater offense. We remand for sentencing on the lesser offense. We affirm on the insufficiency of the evidence and the out-of-court identification issues.

In June 1991 two young girls--ages nine and ten--had just returned home from swimming when the defendant, David Lynn Taft, knocked on their door. The girls were home alone. One of the girls let Taft in after he told her he wanted to use the phone.

Once inside, Taft dialed a number but did not talk to anyone. After a short time, Taft exited the house but remained on the premises smoking a cigarette. He then re-entered the house, but this time he did not knock.

At some point, the phone rang. The caller was the girls' mother. The girl answering the phone told her mother that Taft was there. The mother asked to talk to Taft. Taft told the mother he was there because he needed to make a phone call. The mother told Taft to make his call and leave.

Taft then tried to make the call but apparently reached no one. Instead of leaving the house, Taft proceeded to sexually assault one of the girls after attempting such an assault on the other. Taft then left.

We recite further facts relevant to the issues to be discussed.

I. The Double Jeopardy Issue.

Assault with intent to commit sexual abuse with bodily injury was one of the charges the State filed against Taft. See Iowa Code § 709.11 (1991). Following a bench trial the district court, Judge Conmey, did not find Taft guilty of this offense. Instead, the court found Taft guilty of assault causing bodily injury, a lesser included offense. See Iowa Code §§ 708.2(2), 709.11.

After making findings of fact essentially as we have detailed them, the district court wrote:

Ruling on Count III

Assault causing a bodily injury--elements. The State must prove all of the following elements of assault causing a bodily injury:

1. On or about the 7th day of June, 1991, the defendant did an act which resulted in physical contact which was insulting or offensive and placed [the victim] 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.

3. The defendant's act caused a bodily injury to [the victim].

The court finds that the defendant is guilty of assault causing a bodily injury to [the victim] beyond a reasonable doubt.

....

All of Which is Ordered, Adjudged and Decreed this 4th day of March, 1992.

(Emphasis added.)

On April 30, 1992, the same judge sentenced Taft to an indeterminate term not to exceed twenty-five years on the conviction for sexual abuse in the second degree, an indeterminate term not to exceed twenty-five years on the conviction for burglary in the first degree, and an indeterminate term not to exceed five years for assault with intent to commit sexual abuse with bodily injury. The court ordered the sentences for sexual abuse and burglary to run concurrently and ordered the sentence for assault with intent to commit sexual abuse with bodily injury to run consecutively with the concurrent sentences.

The sentencing, of course, was not in accord with the verdict. The court had initially found Taft guilty of assault causing bodily injury, a serious misdemeanor. See Iowa Code § 708.2(2); see also Iowa Code § 903.1(1)(b) (penalty is "imprisonment not to exceed one year, or a fine not to exceed one thousand dollars, or both"). But at sentencing the court sentenced Taft on assault with intent to commit sexual abuse causing bodily injury, a class "D" felony. See Iowa Code § 709.11; see also Iowa Code § 902.9(4) (penalty is imprisonment for not more than five years, and in addition a fine of not more than seven thousand five hundred dollars may be imposed).

Realizing its mistake, the district court immediately after the sentencing set a hearing, on its own motion, for May 4, to "correct the Conclusions of Law and the elements of Count III of page 7 of the court's ruling filed the 4th day of March, 1992."

At the May 4 hearing the court explained its mistake and--over Taft's objections--corrected it. After the hearing the court entered the following written order that pertinently provided:

The court inadvertently referred to assault causing a bodily injury and its elements under Count III of the Trial Information. It was the intent of this court to set out the elements of assault with intent to commit sexual abuse, as defined in instruction No. 900.6. 900.6 provides as follows:

Assault with intent to commit sexual abuse--serious injury--elements. The State must prove all of the following elements of assault with intent to commit sexual abuse resulting in (serious injury) (bodily injury):

1. On or about the 7th day of June, 1991, the defendant assaulted [the victim];

2. The defendant did so with the specific intent to commit a sex act;

3. The defendant's assault caused a bodily injury to [the victim].

....

The record should further show that the court has in another paragraph in its ruling of March 4, 1992, made the finding that the defendant had the specific intent to commit sexual abuse, which incorporates a sex act, on [the victim] when he entered the ... residence the second time....

The court reaffirms its findings by evidence beyond a reasonable doubt that the defendant is guilty of assault with intent to commit sexual abuse causing a bodily injury against [the victim]....

All of Which is Ordered, Adjudged and Decreed this 4th day of May, 1992.

(Emphasis added.)

Taft thinks he was subjected to double jeopardy in violation of the federal and Iowa Constitutions when the district court entered a judgment of conviction on the greater offense after finding him guilty of the lesser. The Double Jeopardy Clause of the federal Constitution provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const. amend. V. The corresponding provision in the Iowa Constitution provides that "[n]o person shall after acquittal, be tried for the same offense." Iowa Const. art. I, § 12.

The Double Jeopardy Clause protects against (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656, 664-65 (1969). Taft says that "once the district court entered a verdict, for whatever reason, acquitting him of the greater offense while convicting him of the lesser, the Fifth Amendment renders the court powerless to 're-deliberate,' and to convict him of the greater."

The State counters by arguing that double jeopardy is not implicated at all. According to the State the district court did not redeliberate and then change its verdict. Rather, the court mistakenly rendered a verdict that did not reflect its intention at the time. Then all it did was to correct the verdict to show this original intention that it had mistakenly failed to express.

The Double Jeopardy Clause is implicated only when a defendant has been placed in jeopardy. United States v. Martin Linen Supply Co., 430 U.S. 564, 569, 97 S.Ct. 1349, 1353, 51 L.Ed.2d 642, 650 (1977). In a bench trial double jeopardy attaches when the judge begins to receive evidence. Id.

The United States Supreme Court has long held that a verdict of acquittal cannot be reviewed for any reason without violating the Double Jeopardy Clause. Id. at 571, 97 S.Ct. at 1354, 51 L.Ed.2d at 651; Serfass v. United States, 420 U.S. 377, 392, 95 S.Ct. 1055, 1064, 43 L.Ed.2d 265, 276 (1975); United States v. Sisson, 399 U.S. 267, 289-90, 90 S.Ct. 2117, 2129, 26 L.Ed.2d 608, 624 (1970); Fong Foo v. United States, 369 U.S. 141, 143, 82 S.Ct. 671, 672, 7 L.Ed.2d 629, 631 (1962) (per curiam); Kepner v. United States, 195 U.S. 100, 126-27, 24 S.Ct. 797, 803, 49 L.Ed. 114, 123 (1904); Ball v. United States, 163 U.S. 662, 671, 16 S.Ct. 1192, 1195, 41 L.Ed. 300, 303 (1896). And, this perhaps has been the most fundamental rule in the history of double jeopardy jurisprudence. Martin Linen Supply Co., 430 U.S. at 571, 97 S.Ct. at 1354, 51 L.Ed.2d at 651. The rule is so jealously guarded, that a review is not permitted even if "the acquittal was based upon an egregiously erroneous foundation." Fong Foo, 369 U.S. at 143, 82 S.Ct. at 672, 7 L.Ed.2d at 631.

The pivotal question is what constitutes an acquittal. Martin Linen Supply Co., 430 U.S. at 571, 97 S.Ct. at 1354, 51...