State v. Wilt

• Decision Date: 20 April 1983
• Docket Number: No. 67991,67991
• Citation: 333 N.W.2d 457
• Court: Iowa Supreme Court
• Parties: STATE of Iowa, Appellant, v. Michael Paul WILT, James Joseph Ryan, James Patrick Murphy, Lester Pickering, Dennis Donald Axel, Harding Hyde Ware, and John Dennis Spang, Appellees.

Page 457

333 N.W.2d 457

STATE of Iowa, Appellant, v. Michael Paul WILT, James Joseph Ryan, James Patrick Murphy, Lester Pickering, Dennis Donald Axel, Harding Hyde Ware, and John Dennis Spang, Appellees.

No. 67991.

Supreme Court of Iowa.

April 20, 1983.

Eugene J. Kopecky, County Atty., and John D. Standafer, Asst. County Atty., for appellant.

Francis C. Hoyt, Jr., Appellate Defender, and Fern S. Shupeck, Asst. Appellate Defender, for appellees.

Considered by REYNOLDSON, C.J., and UHLENHOPP, LARSON, SCHULTZ, and CARTER, JJ.

REYNOLDSON, Chief Justice.

Upon the State's application we granted discretionary review to examine trial court's ruling that the lawful gambling exceptions of Iowa Code chapter 99B are elements of the offense upon which the prosecution bears the burden of disproof when prosecuting under Iowa Code section 725.7, our general criminal statute on gambling. We affirm in part, reverse in part, and remand for further proceedings.

The seven defendants were charged by information with gambling and betting in violation of Iowa Code section 725.7, on grounds they

did unlawfully and willfully participate in a game for a sum of money, said game being an illegal poker game, said money being more than $50.00 ....

Four of the seven defendants filed motions to dismiss, challenging section 725.7 as void for vagueness. They further alleged they were excepted from its provisions because the establishment where the offense allegedly occurred possessed a valid chapter 99B gambling license. Trial court found section 725.7 is not unconstitutionally vague when read in pari materia with chapter 99B and section 725.15, which incorporates by reference the provisions of chapter 99B as exceptions to the crime. Although trial court ruled defendants were not entitled to dismissal of the information because their motions found no basis in Iowa Rule of Criminal Procedure 10, it ruled the chapter 99B exceptions are elements of the offense upon which the State bears the burden of disproof.

This review raises three issues: (1) whether trial court exceeded its authority in adjudicating the burden of proof in response to defendants' motions, (2) whether the chapter 99B exceptions constitute elements of the offense or affirmative defenses, and (3) whether the burden of proof is constitutionally or statutorily imposed on either party.

I. Trial Court Authority.

Defendants' motions to dismiss were not preceded by motions for a bill of particulars. The State argues trial court therefore exceeded its authority in adjudicating the burden of proof. Defendants contend the issue is moot and any alleged error is harmless because trial court denied the motions to dismiss.

The test of mootness is whether an opinion would be of force and effect with regard to the underlying controversy. Wederath v. Brant, 287 N.W.2d 591, 595 (Iowa 1980); State ex rel. Turner v. Buechele, 236 N.W.2d 322, 324 (Iowa 1975). If trial court exceeded its statutory authority in ruling on the burden of proof, as the State contends, its action was void. State v. Marti, 290 N.W.2d 570, 581-82 (Iowa 1980); see State v. District Court, 271 N.W.2d 704, 706 (Iowa 1978). A ruling on the issue therefore will affect resolution of this controversy, and the State's point cannot be held moot.

Nor do we consider trial court's ruling, if erroneous, harmless. It is true that error against a party may be rendered harmless by subsequent proceedings in a case. Everhard v. Thompson, 202 N.W.2d 58, 61 (Iowa 1972). Such subsequent proceedings have not occurred in this case. Although trial court may reconsider its ruling on the burden of proof during later progress of the case, Avoca State Bank v. Merchants Mutual Bonding Co., 251 N.W.2d 533, 539 (Iowa 1977), there is no assurance it will do so. Trial court's imposition of the burden on the State alters the composition of its trial case in chief. We think it necessary to address the propriety of trial court's ruling.

Iowa Rule of Criminal Procedure 10 creates two ways a defendant may attack an information. Rule 10(6)(c) provides specific procedural grounds for dismissal. ¹ If none of the listed grounds are present, the defendant is not entitled to dismissal under this portion of the rule. State v. Graham, 291 N.W.2d 345, 349-50 (Iowa 1980). Defendants allege no rule 10(6)(c) grounds, and it cannot serve as the basis for their motions.

A general ground for dismissal of an information is contained in rule 10(6)(a):

If it appears from the bill of particulars furnished pursuant to this rule that the particulars stated do not constitute the offense charged in the indictment or information, or that the defendant did not commit that offense or that a prosecution for that offense is barred by the statute of limitations, the court may and on motion of defendant shall dismiss the indictment or information unless the prosecuting attorney shall furnish another bill of particulars which so states the particulars as to cure the defect.

At least where a bill of particulars has not been furnished on the prosecution's own motion or by order of court without motion, such a bill on defendant's own motion is a necessary prerequisite to a rule 10(6)(a) dismissal motion. Graham, 291 N.W.2d at 350; see State v. Hall, 235 N.W.2d 702, 710 (Iowa 1975). Rule 10(6)(a) grants a defendant a second chance to challenge an information, because a necessary predicate of a bill of particulars is a sufficient information. Marti, 290 N.W.2d at 578. Defendants' challenge to the information was not preceded by a bill of particulars. Thus, rule 10(6)(a) cannot serve as the basis for trial court's ruling.

It is true, as defendants argue, that we have held a pretrial motion to dismiss is the proper mode for challenging facial validity of a statute. State v. Allen, 304 N.W.2d 203, 206 (Iowa 1981) (vagueness attack on sexual abuse statute); see State v. Sullivan, 298 N.W.2d 267, 269 (Iowa 1980). These cases, however, cannot be interpreted to hold that adjudication of statutory exceptions as elements or affirmative defenses may be triggered by motion to dismiss not preceded by a bill of particulars. Defendants' vagueness challenge, separately specified in the motions to dismiss, was overruled by trial court, and is not at issue here. We conclude trial court properly refused to dismiss the information in response to defendants' motions.

Defendants contend that trial court nonetheless could have treated their motions as applications for adjudication of law points and addressed the burden of proof. The State argues defendants never filed such a motion, and a motion to adjudicate law points was improper in any event because it depended on disputed facts.

That defendants did not formulate their motions as applications to adjudicate law points is not dispositive. Iowa courts may look to the substance of a motion rather than its label. Allen, 304 N.W.2d at 206; Kagin's Numismatic Auctions, Inc. v. Criswell, 284 N.W.2d 224, 226 (Iowa 1979). A motion for adjudication of law points is allowed in criminal cases under the provisions of Iowa Rule of Criminal Procedure 10(2). The motion lies for resolution of legal issues, and may not be used to resolve factual arguments. Marti, 290 N.W.2d at 579. We confine its reach as we do under Iowa Rule of Civil Procedure 105, State v. Iowa District Court, 271 N.W.2d at 706, and hold it is appropriate only where material facts are undisputed. See M & W Farm Service Co. v. Callison, 285 N.W.2d 271, 274 (Iowa 1979); IMT Insurance Co. v. Myer, 283 N.W.2d 316, 318 (Iowa 1979). Contrary to the State's argument, categorization of the chapter 99B exceptions as elements or affirmative defenses, and the related burden of proof, are purely legal issues which trial court properly might adjudicate as law points. See Julian v. City of Cedar Rapids, 271 N.W.2d 707, 709 (Iowa 1978); Wardlow v. City of Keokuk, 190 N.W.2d 439, 441 (Iowa 1971) (adjudication of proper elements of damages under Iowa Rule of Civil Procedure 105). The State's alleged disputed fact--existence of a valid gambling license--goes to existence of the defense on the merits, as distinguished from the burden of producing the evidence to be considered, or the burden of persuading, using that evidence.

Generally the issue whether the State bears the burden of negating a statutory exception as part of its case in chief is coextensive with the issue whether the indictment must negate the exception, and will be adjudicated by challenge to the information or indictment. Annot., 153 A.L.R. 1218, 1342 (1944). Our cases demonstrate, however, that the burden of proof issue may be raised separately by way of motion for directed verdict at the close of the State's case. See State v. Moorhead, 308 N.W.2d 60, 62 (Iowa 1981). We think that despite defendants' failure to properly challenge sufficiency of the information, this issue is "capable of determination without the trial of the general issue[s]," and may be raised by application for adjudication of law points. Iowa R.Crim.P. 10(2). We find trial court properly addressed the issue, and proceed to the merits of its ruling.

II. Categorization of Chapter 99B Exceptions.

Iowa Code section 725.7 provides:

Any person who participates in any game for any sum of money or other property of any value, or who makes any bet or wager for money or other property of value, or who engages in bookmaking commits a serious misdemeanor.

Exceptions to section 725.7 are incorporated by reference in section 725.15:

Sections 725.5 to 725.10 and section 725.12 shall not apply to any game, activity or device when lawfully possessed, used, conducted or participated in pursuant to chapter 99B.

Chapter 99B includes licensed exceptions for amusement concessions, fair raffles, holders of beer and liquor permits, qualified organizations, annual game nights, and social games at public places. Iowa Code §§ 99B.3-.9 (1981). Other exceptions are provided for certain...