State of Iowa v. Randy Mitchell Copenhaver

IN THE SUPREME COURT OF IOWA
No. 11–1616

Filed March 21, 2014

STATE OF IOWA,

Appellee,

vs.

RANDY MITCHELL COPENHAVER,

Appellant.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Linn County, Sean W.

McPartland and Mitchell E. Turner, Judges.

A defendant seeks further review of a court of appeals decision

affirming his convictions for two separate robberies. DECISION OF

COURT OF APPEALS AND JUDGMENT OF DISTRICT COURT

AFFIRMED.

Mark C. Smith, State Appellate Defender, and David Arthur

Adams, Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Mary A. Triick and Kevin R.

Cmelik, Assistant Attorneys General, and Gerald A. Vander Sanden,

County Attorney, for appellee.
 2

WIGGINS, Justice.

The defendant entered a bank, approached two separate tellers,

and demanded each teller give him money from their cash drawers. The

State charged the defendant with two separate robberies, and the jury

found him guilty of the two robberies. The defendant appealed, claiming

that if a robbery took place, only one robbery occurred. He further

claimed substantial evidence did not support two robbery convictions.

He also raises additional matters in his pro se brief. We transferred the

case to the court of appeals. The court of appeals affirmed his

convictions. The defendant asked for further review, which we granted.

On further review, we agree with the court of appeals resolution of

the pro se issues and let its decision stand as our final decision on the

issues the defendant raised in his pro se brief. Additionally, we find

substantial evidence supports the defendant committed two separate and

distinct robberies. Therefore, we affirm the decision of the court of

appeals and the judgment of the district court.

I. Background Facts and Proceedings.

On February 11, 2010, a person entered the Community Savings

Bank branch office on Mount Vernon Road in Cedar Rapids. The person

was wearing a mask. There was only one teller on the teller line, Jamie

Kasmiskie. Another teller and two bank officers were also present in the

bank. The person approached Kasmiskie and passed her a note. The

note said, “this is a robbery” and “100’s, 50’s, and 20’s.” The person also

spoke to Kasmiskie, saying, “This is a robbery. Give me your money.”

The person further stated, “Don’t hit any buttons.”

Kasmiskie testified her first thought was not to panic. She testified

she did not know what was going to happen. Kasmiskie felt her

adrenaline pumping, her legs and hands were shaking, and after the
 3

incident she thought she might vomit. She did not feel the person was

aggressive towards her, nor did the person imply or threaten a weapon.

However, Kasmiskie feared some kind of physical contact if she did not

comply, because the person was leaning closer to her than any ordinary

customer would have been.

Kasmiskie testified she began handing the money to the person.

When Kasmiskie finished handing over the twenties, she waited to see if

the person was going to leave. The person indicated to her that she

should continue to hand over the money. Kasmiskie gave the suspect

“bait money” of one hundred dollars in twenties. Bait money is money

the bank is able to track because the bank has kept a record of the

money, such as the serial numbers on the bills.

Another teller, Sandra Ries, noticed Kasmiskie and the person and

went out to her window, which was next to Kasmiskie’s window. The

suspect then went to Ries’s window and demanded money from her. The

person said, “Give me your f_______ 50’s and 100’s,” and “I want all of

your 100’s and 50’s.” Ries indicated she did not have any more of those

bills in her drawer, and the person said, “Then, well, give me your 20’s

also.” Ries described the voice as very demanding in tone. She further

stated the person wore gloves and made a gesture like the person could

have a weapon. The person’s gloved hand touched Ries’s nose a couple

times.

Ries did not see a weapon, but did not know if the person had one.

She testified she was scared because the person could have had a hidden

weapon. Ries stated the suspect never threatened her, and the touching

of her nose did not appear to be intentional. Ries did not hand over any

bait money. The amount taken from the bank that day was $6852.

Copenhaver was subsequently apprehended.
 4

II. Proceedings.

On February 25, the State charged Copenhaver with two counts of

robbery in the second degree in violation of Iowa Code sections 711.1

(2009) and 711.3 and one count of theft in the second degree in violation

of Iowa Code sections 714.1 and 714.2. Copenhaver filed a motion for

adjudication of law points. Copenhaver argued the two counts of robbery

should have been charged as a single offense. The court denied the

motion. At trial, the jury found Copenhaver guilty on all three counts.

The trial court sentenced Copenhaver to two consecutive ten year terms

on each of the robbery charges and a concurrent five year term on the

theft charge.

Copenhaver filed a notice of appeal. We transferred the case to our

court of appeals. The court of appeals affirmed Copenhaver’s

convictions. We granted further review.

III. Issues.

Copenhaver’s counsel raised two issues in his brief: whether the

district court imposed an illegal sentence by failing to combine the two

convictions for robbery in the second degree into a single count, and

whether the district court erred in finding there was substantial evidence

for the jury to find Copenhaver committed assaults against each bank

teller. In his pro se brief, Copenhaver raised additional issues.

When deciding a case on further review, “we have the discretion to

review all or some of the issues raised on appeal.” State v. Clay, 824

N.W.2d 488, 494 (Iowa 2012). In exercising our discretion, we choose

only to review the issues raised by Copenhaver’s counsel in counsel’s

original brief. Accordingly, the court of appeals decision will be our final

decision on the issues Copenhaver raised in his pro se brief.
 5
IV. Whether the District Court Imposed an Illegal Sentence By
Failing to Combine the Two Convictions for Robbery in the Second
Degree into a Single Count.

Copenhaver frames this issue in his brief as an issue of merger.

He argues the failure to merge the two robbery convictions into one

offense violates the Double Jeopardy Clause of the United States

Constitution. 1 This argument is misplaced. The defendant in State v.

Ross made the same argument. 845 N.W.2d 692, 701 (Iowa 2014). We

have limited our merger doctrine to double jeopardy claims involving

lesser-included offenses. Id. Accordingly, we recognize Copenhaver as

using the word “merger” in his brief in its general definition of “[t]he act

or an instance of combining or uniting” to ask us to combine his

convictions. See Black’s Law Dictionary 1078 (9th ed. 2009).
An illegal sentence is a sentence that is not permitted by statute.
State v. Woody, 613 N.W.2d 215, 217 (Iowa 2000). If the legislature
criminalizes two separate and distinct acts, separate sentences on each
act are not illegal. State v. Jacobs, 607 N.W.2d 679, 688 (Iowa 2000).
Another way to ask what conduct the legislature criminalized is to ask
what unit of prosecution the legislature intended in enacting the statute.
Therefore, the first step in our analysis is to determine the legislature’s
intent for the unit of prosecution for Iowa Code section 711.1. See Ross,
845 N.W.2d at 702.
A. Unit of Prosecution for Robbery. Determining legislative
intent raises issues of statutory interpretation; thus, our review is for
correction of errors at law. State v. Allen, 708 N.W.2d 361, 365 (Iowa
2006).
The robbery statute in pertinent part provides:

1The Fifth Amendment to the United States Constitution provides in relevant
part, “nor shall any person be subject for the same offence to be twice put in jeopardy of
life or limb.” U.S. Const. amend. V.
 6
A person commits a robbery when, having the intent to
commit a theft, the person does any of the following acts to
assist or further the commission of the intended theft or the
person’s escape from the scene thereof with or without the
stolen property:

1. Commits an assault upon another.

2. Threatens another with or purposely puts another
in fear of immediate serious injury.

3. Threatens to commit immediately any forcible
felony.

Iowa Code § 711.1. Thus, the legislature has defined the unit of

prosecution for robbery based upon the actions of the defendant.

The first element relevant to the facts of this case requires the

defendant to have the intent to commit a theft. The Code defines theft as

“when the person . . . [t]akes possession or control of the property of

another, or property in the possession of another, with the intent to

deprive the other thereof.” Id. § 714.1. The second element of robbery

requires the defendant to do

any of the following acts to assist or further the commission
of the intended theft . . .:

1. Commit[] an assault upon another.

2. Threaten[] another with or purposely put[] another
in fear of immediate serious injury.

3. Threaten[] to commit immediately any forcible
felony.

Id. § 711.1 (emphasis added). If the State can prove these two elements

beyond a reasonable doubt, the defendant has committed the crime of

robbery.

The parties disagree on the proper interpretation of the word “any”

in the statute. Copenhaver argues the use of the word “any” in the

statute is plural and meeting any one or more of the three factors under
 7

Iowa Code section 711.1 constitutes only one offense; therefore, the

number of assaults is not determinative as to whether there is more than

one robbery. Copenhaver relies on State v. Kidd, 562 N.W.2d 764 (Iowa

1997). The State argues the use of the word “any” allows multiple

offenses because we previously interpreted the word “any” to allow

charges for multiple offenses in State v. Constable, 505 N.W.2d 473 (Iowa

1993).

In Kidd, the defendant possessed three sawed-off shotguns

bundled together in his home, and the State charged him with three

separate counts of unauthorized possession of an offensive weapon. 562

N.W.2d at 764–65. The relevant statute prohibited the knowing

“possess[ion of] an offensive weapon.” Id. at 765 (quoting Iowa Code

§ 724.3 (1995)). We analyzed the use of the word “an” in the statute and

determined the ordinary meaning referred to possession of a single

weapon. Id. Thus, we found the possession of each weapon to be a

separate offense. Id. at 765–66. In reaching this conclusion, we cited

United States v. Kinsley, 518 F.2d 665, 670 (8th Cir. 1975), to note that a

statute with the language “any firearm” only allowed the singular act of

possessing four firearms to be one offense. Id. at 766.

In Constable, the defendant argued the trial court violated his

double jeopardy rights by allowing sentencing of five counts under Iowa

Code section 709.3(2), sexual abuse in the second degree. 505 N.W.2d at

474. There were only two victims in Constable, but the State charged the

defendant with two counts for one victim and three counts for the other

victim. Id. at 475. The statute at issue required the person to commit

sexual abuse as defined in Iowa Code section 709.1. Id. (citing Iowa

Code § 709.3(2) (1991)). Section 709.1 defined sexual abuse as “any sex

act which (1) is done by force or against the will of one participant; (2) is
 8

performed with one participant who lacks ability to consent; or (3) is

performed with a child.” Constable, 505 N.W.2d at 477 (citing Iowa Code

§ 709.1). We determined any single physical contact was a separate act

sufficient to meet the definition of “sex act.” Id. at 477–78. Therefore,

when the defendant engaged in five distinct acts of physical contact, each

act alone was sufficient to charge the defendant with a count of sexual

abuse, and the State did not violate the defendant’s double jeopardy

protection. Id. at 478.

We think both Copenhaver’s and the State’s arguments are

relevant to this case. If a defendant intends to commit only one theft,

and the defendant does one or more of the following—commits an assault

upon another, threatens another with or purposely puts another in fear

of immediate serious injury, or threatens to commit immediately any

forcible felony—only one robbery has occurred. This is true even if the

defendant commits multiple assaults or a single assault on one person

and threatens other persons with or purposely puts another in fear of

immediate serious injury while intending to commit a single theft. We

find this to be the unit of prosecution for robbery.

We reach this conclusion because the legislature requires the

defendant to intend to commit a theft accompanied by any of the acts

listed in the statute. If the defendant intends to commit only one theft,

there can only be one robbery no matter how many assaults occur while

the defendant intends to commit the theft. Thus, the word “any” as used

in section 714.1 is consistent with the Kidd-Kinsley analysis we applied

in Kidd.

On the other hand, the Constable decision determined when

separate acts occurred under a criminal statute. There, we found the

legislature intended the unit of prosecution for sexual abuse under Iowa
 9

Code section 709.1 (1991) to be each act of physical conduct. Constable,

505 N.W.2d at 478. Thus, multiple acts can constitute separate and

distinct criminal offenses. Accordingly, if a defendant intends to commit

two separate and distinct thefts, and the defendant accompanies each

intended theft with one or more of the following—commits an assault

upon another, threatens another with or purposely puts another in fear

of immediate serious injury, or threatens to commit immediately any

forcible felony—the defendant has committed two separate robberies.

This result is consistent with Constable, where we determined the

legislative intent was to criminalize each act of physical conduct.

In summary, the unit of prosecution for robbery requires the

defendant to have the intent to commit a theft, coupled with any of the

following—commits an assault upon another, threatens another with or

purposely puts another in fear of immediate serious injury, or threatens

to commit immediately any forcible felony. Here, the State was required

to prove the defendant had the intent to commit two separate and

distinct thefts, with each theft accompanied by any of the actions

contained in Iowa Code section 711.1 (2009), to support two convictions

of robbery.

B. Whether the District Court Erred in Finding There Was

Substantial Evidence for the Jury to Find Copenhaver Had the

Intent to Commit Two Separate and Distinct Thefts. We review a

sufficiency-of-evidence claim for correction of errors at law. State v.

Thomas, 561 N.W.2d 37, 39 (Iowa 1997). The court considers all the

evidence presented at trial and views the evidence in the light most

favorable to the state. State v. Robinson, 288 N.W.2d 337, 340 (Iowa

1980); see also State v. Bower, 725 N.W.2d 435, 444 (Iowa 2006). The

verdict is supported by substantial evidence when the evidence could
 10

convince a rational trier of fact the defendant is guilty beyond a

reasonable doubt. Bower, 725 N.W.2d at 444.

In Ross, we set forth the factors we consider to determine if

substantial evidence supports defendant’s conduct as separate and

distinct acts or one continuous act. 845 N.W.2d at 705. In Ross we

stated:

These factors are (1) the time interval occurring between the
successive actions of the defendant, (2) the place of the
actions, (3) the identity of the victims, (4) the existence of an
intervening act, (5) the similarity of defendant’s actions, and
(6) defendant’s intent at the time of his actions.

Id.

Applying these factors in this case, Copenhaver approached each

teller individually, leaving an interval of time between each act. He did

not stay in one place, but approached each teller at her window. Finally,

we note the intervening act of the second teller, Ries, coming to her

window after the first teller, Kasmiskie, gave Copenhaver money from her

cash drawer.

Copenhaver argues there was only one victim, the bank, so there

could only be one robbery. We do not agree with this argument. The

legislature defined theft as “when the person . . . [t]akes possession or

control of the property of another, or property in the possession of

another, with the intent to deprive the other thereof.” Iowa Code § 714.1.

Each teller had possession of a bank drawer. Thus, each teller had

possession of the property of the bank. When Copenhaver approached

each teller, he intended to take possession or control of the bank’s

property in the possession of each teller.

These factors cause us to conclude the record contains substantial

evidence Copenhaver had the intent to commit two separate and distinct
 11

thefts. 2 Therefore, we find Copenhaver had the intent to commit two

thefts as defined by the legislature. See People v. Scott, 200 P.3d 837,

841–43 (Cal. 2009) (finding the statutory language of “possession of

another” included constructive possession for the crime and thus, a

defendant could commit three robberies against three employees when

the three employees had constructive possession of the employer’s

money); People v. Borghesi, 66 P.3d 93, 103 (Colo. 2003) (deciding under

a statute that required the “presence of another,” two clerks had

sufficient control over the store property to support two robbery

convictions); Brown v. State, 430 So. 2d 446, 447 (Fla. 1983) (finding two

robberies when a defendant took money from two separate employees at

2Although Copenhaver did not argue the applicability of the single-larceny rule,
the single-larceny rule does not affect our result. Prior to the adoption of our present
criminal code, we recognized the single-larceny rule. State v. Sampson, 157 Iowa 257,
263, 138 N.W. 473, 475 (1912). The single-larceny rule provides the theft of property
belonging to two different persons at the same place and at the same time constitutes
one single larceny. Id. In 1976, the legislature adopted a new criminal code. Kermit L.
Dunahoo, The New Iowa Criminal Code, 29 Drake L. Rev. 237, 240 (1979–1980). In
adopting the new code, the legislature defined the crime of theft. 1976 Iowa Acts
ch. 1245, ch. 1, § 1401 (codified at Iowa Code § 714.1 (1979)). The legislature also
added the following language to our criminal law:
The value of property is its normal market or exchange value within the
community at the time that it is stolen. If money or property is stolen by
a series of acts from the same person or location, or from different
persons by a series of acts which occur in approximately the same
location or time period so that the thefts are attributable to a single
scheme, plan or conspiracy, such acts may be considered a single theft
and the value may be the total value of all the property stolen.
Id. § 1403 (codified at Iowa Code § 714.3 (1979)). Despite subsequent minor
amendments, Iowa Code section 714.3 remains substantially the same. See Iowa Code
§ 714.3 (2009). This change to the Code gives the state the discretion to charge a
defendant with multiple crimes in spite of the single-larceny rule. One commentator
has agreed that by the legislature’s enactment of this section, the supreme court
rejected the single-larceny rule. 4 Robert R. Rigg, Iowa Practice: Criminal Law § 11:46,
at 413 (2013). We rejected the single-larceny rule in State v. Chrisman, finding “ ‘the
prosecution is not required to accumulate thefts no matter how closely they may be
connected.’ ” 514 N.W.2d 57, 59 (Iowa 1994) (quoting 4 Ronald L. Carlson and John L.
Yeager, Criminal Law and Procedure § 324, at 99 (Supp. 1993)). Thus, the single-
larceny rule has no application to this case.
 12

two separate cash registers); Commonwealth v. Levia, 431 N.E.2d 928,

931 (Mass. 1982) (holding under a similar statute that when a defendant

took money from two separate employees the defendant committed two

crimes, though the money belonged to the business); Klein v. State, 784

P.2d 970, 973 (Nev. 1989) (per curiam) (determining there were two

robberies when defendant stole from two employees and one employee’s

testimony created a reasonable inference that both employees had joint

control and possession of all the money in the store).

We must next determine if there was substantial evidence for the

jury to find Copenhaver committed assaults against the bank tellers

while having the intent to commit two separate and distinct thefts.

C. Whether the District Court Erred in Finding There Was

Substantial Evidence for the Jury to Find Copenhaver Committed

Assaults Against Each Bank Teller. This issue involves a sufficiency-

of-evidence claim; therefore, we review it for correction of errors at law.

Thomas, 561 N.W.2d at 39. Copenhaver challenges the sufficiency of

evidence, claiming the evidence is not substantial to support he

committed an assault against either bank teller. He specifically claims

there is not substantial evidence to support an overt act against each

teller or that he had the requisite intent to commit an assault against

either teller.

Under the Code, the relevant act required for the crime of robbery

is that the defendant “does any of the following acts to assist or further

the commission of the intended theft” and one act is that the person

“[c]ommits an assault upon another.” Iowa Code § 711.1(1). The Code

defines an assault in relevant part as follows:

A person commits an assault when, without justification, the
person does any of the following:
 13
....

2. Any act which is intended to place another in fear of
immediate physical contact which will be painful, injurious,
insulting, or offensive, coupled with the apparent ability to
execute the act.

Id. § 708.1(2). The jury considered assault under section 708.1(2) for

both of the robbery counts.

Copenhaver first argues there is not substantial evidence to

support he committed an overt act during the commission of each

robbery. “Assault requires an overt act.” State v. Heard, 636 N.W.2d

227, 230 (Iowa 2001). In a previous case, we determined we must look

at the defendant’s actions in context to determine whether the defendant

committed an overt act in furtherance of an assault. See id. at 230–31.

In Heard, we found a person committed an overt act when he disguised

his identity, went into the store in the early morning hours, demanded

money in close proximity to a lone store clerk, took the money, told the

clerk to lie down, and left the store. Id. at 228, 231.

Here, Copenhaver entered the bank wearing a mask and walked

very quickly towards the first teller, Kasmiskie. He gave her a note that

said, “this is a robbery” and demanded money from her. He also spoke

to Kasmiskie. He told her it was a robbery, instructed her to give him the

money, and told her not to hit any buttons. Kasmiskie testified

Copenhaver spoke to her forcefully and her legs started to shake. When

Copenhaver approached the second teller, Ries, Copenhaver spoke to her

in a demanding tone of voice and said, “Give me your f_______ 50’s and

100’s.” Copenhaver also gestured at her to give him the money and his

gloved hand touched her nose a couple times. These facts, in context,

constitute substantial evidence to support the jury’s finding of an overt

act supporting the commission of an assault for each charge of robbery.
 14

Next, Copenhaver argues substantial evidence does not support he

had the requisite intent to commit an assault for either robbery. Assault

under Iowa Code section 708.1(2) is a specific intent crime. State v.

Fountain, 786 N.W.2d 260, 264 (Iowa 2010). The specific intent required

under the statute is the intent “to place another in fear of immediate

physical contact which will be painful, injurious, insulting, or offensive.”

Iowa Code § 708.1(2). Therefore, Copenhaver must have intended to

cause each bank teller to fear immediate painful, injurious, insulting, or

offensive physical contact. We may infer intent from the defendant’s

actions and the circumstances of the transaction. State v. Keeton, 710

N.W.2d 531, 534 (Iowa 2006).

As to the first teller, Kasmiskie, we can infer from Copenhaver’s

actions of wearing a mask, walking quickly towards her, and speaking

forcefully to her that he had the specific intent to place Kasmiskie in fear

of immediate physical contact, which would be painful, injurious,

insulting, or offensive, coupled with the apparent ability to execute the

act. Factually, Copenhaver’s actions caused her legs to shake. We can

also infer he had the specific intent to place Ries in fear of immediate

physical contact, which would be painful, injurious, insulting, or

offensive, coupled with the apparent ability to execute the act because of

Copenhaver’s demanding voice together with his gestures and his gloved

hand touching her nose a couple times. Accordingly, the record contains

substantial evidence that could convince a rational trier of fact the

defendant met the specific-intent requirement to commit two assaults.

Thus, we find there is substantial evidence to support two robbery

convictions. Therefore, Copenhaver’s sentence was not illegal.

V. Disposition.
 15

We find substantial evidence supports Copenhaver’s two robbery

convictions. Additionally, we agree with the court of appeals in its

determination of Copenhaver’s pro se claims. Accordingly, we affirm the

decision of the court of appeals and affirm the judgment of the district

court.

DECISION OF COURT OF APPEALS AND JUDGMENT OF

DISTRICT COURT AFFIRMED.

All justices concur except Mansfield and Waterman, JJ., who

concur in part and dissent in part.
 16
#11–1616, State v. Copenhaver
MANSFIELD, Justice (concurring in part and dissenting in part).

I agree with the majority’s overall approach, which involves parsing

the statutes to determine the unit of prosecution. However, when the

general assembly enacted our present criminal code, it was writing

against the background of the single-larceny rule. Apparently, it

intended to perpetuate that rule, or so we have indicated in prior cases.

When I apply that rule, I find only one theft or intended theft, and thus

only one robbery, despite the existence of two separate assaults. I

therefore would reverse the second robbery conviction.

As the majority notes, to determine the unit of prosecution, we first

need to examine the legislative definition of robbery. See Iowa Code

§ 711.1 (2009). When one reads that definition, the unit of prosecution

appears to be an intended theft coupled with one or more assaults. See

id. (“A person commits a robbery when, having the intent to commit a

theft, the person does any of the following acts to assist or further the

commission of the intended theft . . . .” (Emphasis added.)).

Copenhaver assaulted both tellers, so the question for me is

whether there was one intended theft or two. If two, he can be convicted

of two separate robberies. If there was only one intended theft, then only

one robbery can follow.

This leads me to the legislative definition of theft. See id.

§ 714.1(1). Again, I agree with the majority’s approach here. As noted by

the majority, a theft occurs when a person “[t]akes possession or control

of the property of another, or property in the possession of another, with

the intent to deprive the other thereof.” Id.

Under this somewhat imprecise legislative definition, one might

conclude that taking money from two bank tellers working in the same
 17

room could be considered two different thefts, and hence two different

intended thefts. 3

However, we have applied the rule of lenity when the unit of

prosecution is ambiguous:

Where the language of a criminal statute leaves an ambiguity
with respect to the unit of prosecution, courts apply the rule
of lenity: in cases of ambiguity or doubt as to legislative
intent, only one offense may be charged.

State v. Kidd, 562 N.W.2d 764, 765 (Iowa 1997); see also State v.

Muhlenbruch, 728 N.W.2d 212, 216 (Iowa 2007) (“[T]his court has
recognized that strict construction of criminal statutes should be applied

in cases where there is doubt regarding the allowable unit of

prosecution.”). 4
More importantly, with theft, we have to deal with the historical

“single-larceny rule” in this state. Before the current definition of “theft”

3Of course, the State did not prosecute the case that way. It charged
Copenhaver with only a single theft from the bank and argued there were two robberies
because there were two assaults. The majority properly rejects the notion that the unit
of prosecution is the number of assaults, rather than the number of intended thefts.
4In State v. Velez, which I joined, we took the position that the lengthy
discussion of the “rule of lenity” in State v. Hearn had overruled prior precedent and
limited that rule to situations where there was “ ‘grievous ambiguity’ ” in a statute and
“ ‘no [other] basis for choosing among plausible interpretations of a statute.’ ” See State
v. Velez, 829 N.W.2d 572, 585 (Iowa 2013) (quoting State v. Hearn, 797 N.W.2d 577,
585–87 (Iowa 2011)). As I reread Hearn, I do not believe the extensive discussion of the
rule of lenity therein actually reached that conclusion. In fact, the only conclusion we
seem to have reached in Hearn is that “the rule of lenity does not apply if there is no
ambiguity regarding the application of a statute to a given set of facts after examination
of the text, the context of the statute, and the evident statutory purpose as reflected in
the express statutory language.” Hearn, 797 N.W.2d at 587. Notably, we have more
recently indicated that “[w]e adhere to the rule of lenity, which guides us to resolve
ambiguities in criminal statutes in favor of the accused.” State v. Hagen, 840 N.W.2d
140, 146 (Iowa 2013).
Regardless, I continue to believe Velez was correctly decided, particularly in light
of the minutes of testimony indicating the defendant had inflicted two or more separate
blows, each of which caused a separate serious injury. See 829 N.W.2d at 583–84.
 18

was adopted as part of the 1976 criminal code revision, see 1976 Iowa

Acts ch. 1245, ch. 1, § 1401 (codified at Iowa Code § 714.1(1979)), we

had the crime of “larceny.” Under the longstanding definition of larceny

in this state, that crime occurred when a person stole, took, and carried

away property of another. See, e.g., Iowa Code § 2612 (1851) (“If any

person steal, take and carry away, of the property of another, any money,

goods, or chattels . . . .”).

In applying this definition of larceny, we found that “[t]he stealing

of several articles at the same time and in the same act from the same

person constitutes but one transaction, and is one act of larceny.” State

v. Broderick, 191 Iowa 717, 718–19, 183 N.W. 310, 311 (Iowa 1921).

Broderick described an easy case, but we also found a single larceny on

other occasions. For example, in State v. Vandewater, we upheld a jury

determination that the defendant’s theft of fencing materials from a

single location constituted “a single transaction or single larceny,” even

though the defendant had to make two distinct trips or “asportations” to

remove all the materials. 203 Iowa 94, 99, 212 N.W. 339, 342 (Iowa

1927).

In State v. Sampson, the defendant stole a watch from one

roommate and $42 from another while both were sleeping. 157 Iowa

257, 258, 138 N.W. 473, 473 (Iowa 1912). Nevertheless, we held the

state could only prosecute one larceny. Id. at 263, 138 N.W. at 475.

“That an instant or several minutes may have intervened between seizing

the watch and the purse can make no difference if these were a part of

the same transaction wherein the accused carried out his design of

stealing these articles.” Id. at 259, 138 N.W. at 473. We discussed the

single-larceny rule in 1977, following the enactment of the new criminal

code and before the new code had taken effect. We did not suggest the
 19

new code had changed anything. See State v. Cabbell, 252 N.W.2d 451,

452–53 (Iowa 1977) (holding that shoplifting from two separate

department stores did not amount to a single larceny because of “the

differences in owners, locations and times”).

In fact, despite the changeover from the classic definition of

“larceny” to the new crime of “theft” in the 1976 criminal code revision,

we have continued to recognize the single-larceny rule. Thus we

reiterated in 1981 that “ ‘[w]here several articles are stolen from the same

owner at the same time and place, only a single crime is committed.’ ”

State v. Amsden, 300 N.W.2d 882, 884 (Iowa 1981) (quoting 52A C.J.S.

Larceny § 53, at 479 (1968)). We declined to apply the single-larceny

rule in 1983 to a theft of a tractor and a trailer, but only because the

statute “provid[ed] otherwise,” that is, the legislature had defined theft of

a motor vehicle as a separate crime. State v. Parker, 342 N.W.2d 459,

462 (Iowa 1983). We also recognized the rule but declined to apply it in

1994 to thefts from two separate buildings. State v. Chrisman, 514

N.W.2d 57, 59–60 (Iowa 1994).

One might argue that section 714.3—also part of the 1976

revision—was intended to displace the single-larceny rule. Section 714.3

provides:

If money or property is stolen from the same person or
location by two or more acts, or from different persons by
two or more acts which occur in approximately the same
location or time period, or from different locations by two or
more acts within a thirty-day period, so that the thefts are
attributable to a single scheme, plan, or conspiracy, these
acts may be considered a single theft and the value may be
the total value of all the property stolen.

Iowa Code § 714.3 (2009).

However, in Chrisman, we held that section 714.3 conferred on the

state “a power, not a duty,” and then proceeded to separately consider
 20

the single-larceny rule. Chrisman, 514 N.W.2d at 59–60. By doing so,

we implicitly recognized that section 714.3 did not dispense with the

single-larceny rule. Notably, section 714.3 sweeps much more broadly

than the single-larceny rule and allows the state to aggregate, for

example, removals of property from more than one location. 5

I think the present case falls within the single-larceny rule.6

Copenhaver obtained cash by going successively to two different teller

windows in one room of the bank. Ask the question this way: If

Copenhaver had simply been able to pick up the cash from the two

different windows without putting anyone in fear, would there have been

one theft or two? I think the answer is one.

Because I find only one intended theft occurred here, I cannot

sustain the second robbery conviction. I do not claim originality for my

position. I find helpful and persuasive much of the reasoning of the

judge on the court of appeals who dissented in part. His opinion also

cites to a number of out-of-state decisions that reach the same

conclusion as we do. See, e.g., State v. Franklin, 130 S.W.3d 789, 796

(Tenn. Crim. App. 2003) (finding only one robbery where defendants

committed a single theft from a market, albeit from the presence of two

persons, because Tennessee’s robbery statute is “defined in terms of

‘theft’ ”).

5As noted by the majority, one treatise claims that Iowa has rejected the single-

larceny rule. See 4 Robert R. Rigg, Iowa Practice: Criminal Law § 11:46, at 413 (2013).
However, that treatise cites only to Chrisman, and I do not think Chrisman supports
that conclusion.
6Themajority correctly points out that Copenhaver has not discussed the single-
larceny rule in his briefing. However, Copenhaver vigorously contends that there was
only one intended theft and hence only one robbery. The single-larceny rule is the
reason why.
 21

At the same time, I believe the out-of-state opinions cited by the

majority are distinguishable. The Massachusetts case, Commonwealth v.

Levia, does not involve a “similar statute.” See 431 N.E.2d 928, 930

(Mass. 1982). Massachusetts law provides that a robbery occurs when a

person “assaults another and robs, steals or takes from his person

money or other property which may be the subject of larceny.” Id. at 930

n.2. Thus, it defines robbery as an assault plus a taking from the person

assaulted, not as an intended theft involving one or more assaults. As

the Massachusetts Supreme Judicial Court stated, “In construing the

armed robbery statute, this court has previously stressed the assault

aspect of the crime.” Id. at 930.

Brown v. State, the Florida case, arguably involves a statute where

the unit of prosecution is a taking rather than an assault. See 413 So.

2d 1273, 1274 (Fla. Ct. App. 1982), aff’d, 430 So. 2d 446 (Fla. 1983).

However, as one reads the Florida Supreme Court’s opinion, it seems

clear Florida does not follow a single-larceny rule like Iowa’s. See Brown,

430 So. 2d at 447.

Nevada defines robbery as “the unlawful taking of personal

property from the person of another, or in the person’s presence, against

his or her will, by means of force or violence or fear of injury, immediate

or future, to his person or property.” See Nev. Rev. Stat. Ann.

§ 200.380(1) (West, Westlaw current through 2013 Reg. Sess.). This is a

victim-based statute. Thus, it is logical in Nevada to treat the number of

victims as the unit of prosecution. See Klein v. State, 784 P.2d 970, 973

(Nev. 1989) (per curiam). Iowa does not have that kind of statute.

California—like Nevada—has a statute that appears to make the

victim the unit of prosecution. It defines robbery as “the felonious taking

of personal property in the possession of another, from his person or
 22

immediate presence, and against his will, accomplished by means of

force or fear.” See People v. Scott, 200 P.3d 837, 840 (Cal. 2009) (internal

quotation marks omitted). Hence, the California Supreme Court

understandably reasoned that robbery is a crime of violence “committed

against a person.” Id. at 840–41.

Finally, Colorado’s somewhat cryptic robbery statute provides that

“[a] person who knowingly takes anything of value from the person or

presence of another by the use of force, threats, or intimidation commits

robbery.” See People v. Borghesi, 66 P.3d 93, 98 (Colo. 2003) (internal

quotation marks omitted). In Borghesi, the Colorado Supreme Court

found the statutory language not especially helpful and thus declined to

follow a unit of prosecution analysis. Id. at 98 n.5. Instead, it drew

upon “the common law emphasis on the assaultive nature of the crime.”

Id. at 99–103. I agree with the majority that we can and should follow a

unit of prosecution approach in Iowa.

In short, the main thing these cases establish is that state laws

differ from each other and one ought to read and construe every state’s

robbery statute on its own. None of the foregoing states follows Iowa’s

approach of defining robbery in terms of an intended theft plus “any” of

the following conduct in furtherance of “the” intended theft.

For these reasons, I respectfully dissent in part.

Waterman, J., joins this concurrence in part and dissent in part.