State v. Wilson, 93-1072

• Decision Date: 19 October 1994
• Docket Number: No. 93-1072,93-1072
• Citation: 523 N.W.2d 440
• Parties: STATE of Iowa, Appellee, v. Marcus Tyrone WILSON, Appellant.
• Court: Iowa Supreme Court

Page 440

523 N.W.2d 440

STATE of Iowa, Appellee, v. Marcus Tyrone WILSON, Appellant.

No. 93-1072.

Supreme Court of Iowa.

Oct. 19, 1994.

Rehearing Denied Nov. 21, 1994.

Linda Del Gallo, State Appellate Defender, and John Fatino and Rachele Braverman Hjelmaas, Asst. Appellate Defenders, for appellant.

Bonnie J. Campbell, Atty. Gen., Bridget A. Chambers, Asst. Atty. Gen., Thomas J. Ferguson, County Atty., and D. Raymond Walton, Asst. County Atty., for appellee.

Considered by HARRIS, P.J., and LARSON, CARTER, SNELL, and ANDREASEN, JJ.

CARTER, Justice.

Defendant, Marcus Tyrone Wilson, appeals from conviction following jury trial of the offense of second-degree robbery in violation of Iowa Code sections 711.1 and 711.3 (1993). He asserts that the district court erred in failing to submit, as a lesser included offense, the crime of assault while participating in a felony in violation of Iowa Code section 708.1 (1993). Because we find no error in the district court's failure to instruct on that offense, we affirm defendant's conviction.

The evidence at trial, viewed most favorably toward the State, established that defendant was observed shoplifting in a Waterloo grocery store. As he departed the store he was followed to his car by a store employee who requested that he return to the store. At this point defendant drew a knife, causing the store employee to back away. Defendant then drove away.

Store employees were able to take down the license number of defendant's car and notify police. Police located and stopped the vehicle and arrested defendant. When defendant was removed from the car by officers, a knife was found on his person. Meat taken from the grocery store was found in the automobile.

To sustain his argument that assault while participating in a felony is a lesser included offense in a prosecution for second-degree robbery, defendant relies on State v. Johnson, 291 N.W.2d 6 (Iowa 1980). In the Johnson case, the issue was whether assault while participating in a felony was a lesser included offense of sexual abuse in the third degree. This court reasoned that both the intent element and assault element of assault while participating in a felony are included in third-degree sexual abuse. We further concluded, however:

The jury may harbor a reasonable doubt as to whether ... the sex act, was actually accomplished under the circumstances shown and yet have no reasonable doubt that there was an intent and attempt to accomplish the act charged, or here that an assault was committed sometime after the first act done toward and for the purpose of commission of the charge.

Id. at 10. Thus, in intending to commit third-degree sexual abuse, one may commit some but not all elements thereof and, in the process, be guilty of assault while participating in a felony.

We do not find that the analysis employed in Johnson required the submission of assault while participating in a felony in the present robbery prosecution. As the State points out, unlike the offenses being compared in Johnson, "participating in" the offense of second-degree robbery, if coupled with a completed assault, establishes all, rather than some, of the elements of the robbery offense. The essential elements of the robbery offense are (1) intent to commit a theft, and (2) an assault in carrying out...