State v. Tryon

• Citation: 431 N.W.2d 11
• Decision Date: 24 August 1988
• Docket Number: No. 87-1089,87-1089
• Parties: STATE of Iowa, Plaintiff-Appellee, v. Stephen Lee TRYON, Defendant-Appellant.
• Court: Court of Appeals of Iowa

Page 11

431 N.W.2d 11

STATE of Iowa, Plaintiff-Appellee, v. Stephen Lee TRYON, Defendant-Appellant.

No. 87-1089.

Court of Appeals of Iowa.

Aug. 24, 1988.

Alfredo G. Parrish of Parrish & Kruidenier, Des Moines, for defendant-appellant.

Thomas J. Miller, Atty. Gen., Christie J. Scase, Asst. Atty. Gen., Mike L. Zenor, Clay County Atty., and Patrick M. Carr, Asst. County Atty., for plaintiff-appellee.

Heard by DONIELSON, P.J., and HAYDEN and HABHAB, JJ.

HABHAB, Judge.

This is an appeal from defendant Stephen Lee Tryon's conviction, following a jury trial, of first-degree kidnapping in violation of Iowa Code section 710.1 and 710.2. On appeal, defendant contends 1) the evidence was insufficient to establish the crime of kidnapping; that at the most, the confinement of the victim was merely incidental to the commission of sexual abuse; 2) the trial court erred in allowing the testimony of the court-appointed psychiatrist; and 3) that he did not receive a fair and impartial trial because he was denied effective assistance of counsel.

Background

From substantial evidence in the record, the jury could find the facts which we set forth. Because "confinement or removal" is a significant issue, detailed facts are necessary.

The victim and her husband were involved in divorce proceedings. During the evening in question, she went to a bar with friends. There she met the defendant, a friend of her husband.

The victim and the defendant talked, danced, and drank beer. At a time between 1:30 and 2:00 a.m., the defendant suggested that they go to her apartment. They did so in her car with the defendant driving. The defendant took a six-pack of beer with him.

At the apartment the two sat in the living room, watched television, kissed, and touched. The defendant made certain sexual advances and the victim told him that she did not want to for he (defendant) was a friend of her husband. The defendant did not object and said that was fine.

The victim then asked the defendant if he was going to stay all night. He said that he was. The victim then went to her bedroom, obtained her alarm clock and a blanket, and returned to the living room. She lay down on the floor and fell into a heavy sleep. The defendant lay down on the floor next to her.

The victim's next recollection was waking on the living room floor with the defendant kneeling between her legs shaving her pubic hair with a razor blade. After falling back asleep, the victim awoke to find herself naked in her bed with her hands tightly bound by a cord which was strung below the bed. The defendant was at that time completing the shaving of her pubic hair. When the victim protested, the defendant replied that if she didn't sit still he would cut her.

After finishing shaving the victim, the defendant left the bedroom; the victim struggled unsuccessfully to free herself while he was out of the room; the defendant returned with speaker wire from the living room and attempted, without success, to tie the victim's legs. The victim screamed and struggled. The defendant responded by grabbing a pillow and trying to smother her; when this did not stop her screaming, the defendant struck her with a hard blow. She may have temporarily lost consciousness.

When the victim awoke, the defendant was holding ice on her nipple. He pierced her nipple with a safety pin; she protested and the defendant threatened to kill her if she did not shut up. To reinforce his threat, the defendant showed the victim a knife he had obtained from her kitchen and jabbed her between her breasts, breaking the skin.

During the hours which followed, the defendant frequently threatened the victim with this knife, holding it to her face and neck and stabbing it into the mattress several times. The defendant continued his abuse by applying ice to her clitoris and threatening to pierce it as well. The victim could see what the defendant was doing. To prevent her from watching, the defendant ripped a towel and used pieces of it in an attempt to blindfold and gag her. Up to this time the defendant did not have sex with her.

The defendant next penetrated the victim's vagina with a beer bottle, a sharp object--possibly an ink pen, and the handle of a knife. He next removed his clothing and forced the victim to perform oral sex; after achieving an erection the defendant had vaginal intercourse with her. The defendant repeated this pattern of forced oral sex followed by intercourse four or five times. The defendant was not able to get either the blindfold or gag tightly secured and they slipped down around the victim's neck, allowing her to witness most of the defendant's actions.

Finally the defendant stopped his abuse, got dressed, and told the victim he would have to kill her for she was a witness. The victim promised that she would not report his actions to the police and eventually convinced him to untie her. The defendant then gave her the knife and asked her to kill him.

The victim threw the knife across the room and continued to talk to the defendant, calling in sick to her place of employment in an attempt to make him believe that she would not report the incident. The defendant left the victim's apartment at approximately 7:30 or 7:45 a.m. She then called the police.

I.

Defendant first contends the evidence was insufficient to establish the crime of kidnapping, and that, at the most, the confinement of the victim was merely incidental to the commission of sexual abuse.

Iowa Code section 710.1 states:

A person commits kidnapping when he or she 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 inflict serious injury upon such person, or to subject the person to a sexual abuse....

Iowa Code section 710.2 states:

Kidnapping is kidnapping in the first degree when the person kidnapped, as a consequence of the kidnapping, suffers injury or is intentionally subjected to torture or sexual abuse. Iowa Code § 710.2 (1987).

Our supreme court has held the terms "confines" or "removes" require more than the confinement or removal that is an inherent incident of the commission of the crime of sexual abuse. State v. Misner, 410 N.W.2d 216, 222 (Iowa 1987). The standards by which a jury could determine whether the evidence demonstrated a confinement or removal sufficient to support a charge of kidnapping provide:

1. No minimum period of confinement or distance of removal is required for conviction of kidnapping.

2. The period of confinement or distance of removal must exceed what is normally incidental to the commission of sexual abuse.

3. The confinement or removal must have significance independent from the act of sexual abuse itself in one of the following ways:

a. Substantially increase the risk of harm to the victim.

b. Significantly lessen the risk of detection.

c. Significantly facilitate escape following the consummation of the sex abuse offense.

Id., (citing State v. Rich, 305 N.W.2d 739, 745 (Iowa 1981)).

Defendant argues that the confinement herein was, at most, incidental to the sexual abuse. He argues that binding the victim neither increased the risk of harm to her, significantly lessened risk of detection, nor significantly facilitated his escape after completion of the sex act. This ignores the vast majority of evidence presented at the trial.

The jury, based upon the evidence presented, could reasonably have found that defendant's binding and threatening the victim (both constituting forms of confinement), not only facilitated the prolonged sexual abuse which occurred, but also that it had significance independent of the sexual abuse, substantially increased the risk of harm to the victim, significantly lessened the risk of detection for the defendant, and significantly facilitated defendant's escape. This case is distinguished from defendant's cited cases of State v. Mead, 318 N.W.2d 440 (Iowa 1982), and State v. Marr, 316 N.W.2d 176 (Iowa 1982), where the victims were merely confined to an extent necessary for the completion of the sex act.

The evidence here shows that defendant confined the victim to her bed by putting her on her back, tightly binding her hands with a cord strung below the bed, and stretching her arms to the side, thereby preventing her from protecting herself by warding off or escaping from defendant's attack. This position was maintained for a significant period of time while defendant moved freely about the apartment, obtained a knife from her kitchen, threatened the victim, and performed various acts of sexual and physical abuse. The risk to the victim was definitely far greater than in a "normal" sexual abuse scenario.

When the victim began to struggle, scream, and fight against defendant, he repeatedly threatened her life with a knife, struck her, and gagged her. The victim temporarily lost consciousness. These actions were obviously designed to, and did, significantly reduce the risk of detection. The victim testified it was defendant's use of the knife and repeated threats toward her life which convinced her to stop struggling and screaming.

Also, defendant's binding and threatening of the victim significantly facilitated his perceived ability to escape following his attack. Although the victim was able to ultimately persuade defendant to untie her she continued to fear for her life. She did not flee from her apartment due to this fear. The fact that the victim was adroitly able to abort defendant's scheme does not alter the underlying nature of the confinement. State v. Coen, 382 N.W.2d 703, 713 (Iowa App.1985). It would not have been unreasonable for the jury to assume that, if the victim had not been successful in her attempt to convince defendant that she would not report his actions, defendant would have...