State v. TeBockhorst

• Decision Date: 13 May 1981
• Docket Number: No. 64264,64264
• Citation: 305 N.W.2d 705
• Parties: STATE of Iowa, Appellee, v. Teddy J. TeBOCKHORST, Appellant.
• Court: Iowa Supreme Court

Page 705

305 N.W.2d 705

STATE of Iowa, Appellee, v. Teddy J. TeBOCKHORST, Appellant.

No. 64264.

Supreme Court of Iowa.

May 13, 1981.

Judd Golden of Flagg, Hockett, Benhart & Golden, Des Moines, for appellant.

Thomas J. Miller, Atty. Gen., Merle Wilna Fleming, Asst. Atty. Gen., and Gerald N. Partridge, Asst. County Atty., Washington, for appellee.

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

McCORMICK, Justice.

Defendant Teddy J. TeBockhorst appeals his convictions by jury and sentences for arson in the second degree, in violation of sections 712.1 and 712.3, The Code 1979, and possession with intent to deliver a controlled substance, marijuana, in violation of section 204.401(1), The Code 1979. We find merit in his contentions that the trial court erred in instructing the jury on the arson charge and in holding the evidence was sufficient for jury submission of the profit element in the drug charge. As a result, we reverse.

In the morning of January 27, 1979, defendant was traveling on highway 22 in Washington County in a 1969 Dodge van. The vehicle skidded on ice and left the road, becoming stuck in a snow-filled ditch. When other persons arrived at the scene, defendant was outside the van with his two doberman pinscher dogs, and the van was on fire. Firefighters were called and put out the fire. Investigators found gasoline on the surface of materials in the van. Included among these materials was a green leafy substance later identified as marijuana. In its wet condition the marijuana weighed approximately three pounds.

Following their investigation, the officers arrested defendant and charged him with the offenses for which he was later tried. In this appeal from his convictions, he contends the trial court erred in denying a mistrial based on prosecutor misconduct, in instructing the jury on ownership of the van, in refusing to acquit him of the charge of possession of marijuana with intent to deliver for the purpose of making a profit, and in instructing the jury on the included offense of possession of marijuana with intent to deliver as an accommodation. The issues concerning the instruction on ownership of the van and the evidence of intent to make a profit are determinative of the appeal.

I. The instruction on ownership of the van. Arson is defined as follows in section 712.1:

Causing a fire or explosion, or placing any burning or combustible material, or any incendiary or explosive device or material, in or near any property with the intent to destroy or damage such property, or with the knowledge that such property will probably be destroyed or damaged, is arson, whether or not any such property is actually destroyed or damaged. Provided, that where a person who owns said property which the defendant intends to destroy or damage, or which he or she knowingly endangers, consented to the defendant's acts, and where no insurer has been exposed fraudulently to any risk, and where the act was done in such a way as not to unreasonably endanger the life or property of any other person the act shall not be arson.

In relevant part, arson in the second degree is established when the property which the defendant intends to destroy or damage is personal property of more than $500 in value. § 712.3.

In defending the charge, defendant denied he set fire to the van. He also contended he owned the van and it was not insured, so that, even if he did start the fire, the owner consented to the act and no insurer was exposed to any fraudulent risk or any other person's property endangered.

Considerable evidence was received on the ownership issue. The van was titled in Illinois in the name of Diane Christiansen of Round Lake, Illinois. Defendant testified he purchased the van from Christiansen in December 1978 for $100. At the request of a Washington County deputy sheriff, authorities in Illinois contacted Christiansen. Subsequently a woman identifying herself as Diane Christiansen telephoned the Washington County sheriff's office. In response to a deputy's questions, she confirmed defendant's story about his purchase of the van. She estimated the sale date was December 18, 1978. She also said she had not insured the vehicle.

Defendant had been seen driving the vehicle for some time before January 24, 1979. No reports were received that the vehicle was stolen. No one claimed it during the nine months between the date of defendant's arrest and his trial. However, defendant identified Diane Christiansen as owner of the vehicle on his accident report. The administrator of the vehicle records division of the Illinois Secretary of State's office testified the van was still registered in Christiansen's name at the time of trial.

The court instructed the jury on defendant's ownership defense. The court told the jury, without objection, that it should acquit defendant of the arson charge unless the State proved beyond a reasonable doubt that the owner did not consent to the act of the defendant or that the act was done in such a way that the property of another was unreasonably endangered. The correctness of that instruction is not challenged.

Defendant's complaint concerns an additional instruction which was as follows:

Under the laws of Iowa, with certain exceptions not applicable here, no person shall acquire any right, title, claim, or interest in or to any vehicle from the owner thereof except by virtue of a certificate of title issued or assigned to him for such vehicle, and the transferee shall, within seven calendar days after purchase or transfer, apply for and obtain from the county treasurer of the person's residence a transfer of registration and a new certificate of title for such vehicle.

This instruction was based on sections 321.45(2) and 321.46. It accurately paraphrases the statutory provisions. Defendant contends the court erred in instructing the jury that a certificate of title is conclusive on the ownership issue in an arson case. Defendant objected to the instruction on the ground that registration is not conclusive on the issue of transfer of interest in the vehicle between buyer and seller and that the title statute's purpose to prohibit fraud is not served by making it conclusive. We believe this objection was sufficient to preserve error.

Ownership is not defined in the arson statute. However, property, which is the subject of arson, is defined. It is "anything of value, whether publicly or privately owned." § 702.14. The term includes tangible and intangible property, labor and services, and all that is embraced in "real property" and "personal property." Id. Thus, any property may be the subject of arson. It seems reasonable that the legislature intended ownership to have the same meaning in relation to all property. In this context, we believe ownership has its general meaning. A typical definition of ownership appears in Black's Law Dictionary 997 (5th Ed. 1979):

Collection of rights to use and enjoy property, including the right to transmit it to others.... The complete dominion, title, or proprietary right in a thing or claim. The entirety of the powers of use and disposal allowed by law.

The right of one or more persons to possess and use a thing to the exclusion of others. The right by which a thing belongs to some one in particular, to the exclusion of all other persons. The exclusive right of possession, enjoyment, and disposal; involving as an essential attribute the right to control, handle and dispose.

The legislature did not intend to proscribe burning of one's own property when another's rights are not affected. See 4 J. Yeager and R. Carlson, Iowa Practice: Criminal Law and Procedure § 273 at 72 (1979).

The issue here is whether a certificate of title is conclusive of ownership when a motor vehicle is the subject of arson. This court held in Sandhorst v. Mauk's Transfer, Inc., 252 N.W.2d 393, 398 (Iowa 1977), that it is not conclusive between a buyer and seller in a conditional sales contract:

We believe the proper interpretation of section 321.45(2) requires that as between immediate buyer and seller to a conditional sales agreement involving a motor vehicle, the certificate of title is prima facie but not conclusive proof of ownership. To hold otherwise allows the statute to be used as a sword rather than a shield, a result certainly never intended by our legislature.

The reasoning of Sandhorst applies in this case. Third-party rights are not implicated in the ownership issue. The certificate of title was in the name of Diane Christiansen, but the jury could find she had sold the vehicle to defendant. Between them defendant would have an owner's rights in the vehicle despite the failure of one or both of them to comply with the statutes relating to title transfer. If defendant had purchased the vehicle but Christiansen and he had merely failed to comply with statutory requirements to put title in his name, he nevertheless had the right to possess and use the vehicle to the exclusion of others. This included an exclusive right to control, handle and dispose of the vehicle within the limits of the law.

As the concept is employed in the arson statute, the jury could thus find that defendant owned the van. Therefore the jury could find that, as owner, he had consented to the burning. However, we do not agree with defendant's view that his purchase of the vehicle must be taken as a verity....