IN THE SUPREME COURT OF IOWA
No. 12–1323
Filed February 6, 2015
Amended April 16, 2015
STATE OF IOWA,
Appellee,
vs.
SCOTT ROBERT ROBINSON,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Dubuque County,
Michael J. Shubatt, Judge.
Defendant seeks further review of a court of appeals decision
affirming his conviction for first-degree kidnapping. DECISION OF
COURT OF APPEALS AFFIRMED IN PART AND VACATED IN PART;
DISTRICT COURT JUDGMENT REVERSED AND CASE REMANDED.
Mark C. Smith, State Appellate Defender, and Shellie L. Knipfer,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Tyler J. Buller, Assistant
Attorney General, Ralph R. Potter, County Attorney, and Christine
O’Connell Corken, Assistant County Attorney, for appellee.
2
APPEL, Justice.
In this case, we consider multiple challenges to Scott Robinson’s
conviction of first-degree kidnapping allegedly arising out of a sexual
assault. Robinson contends that his conviction should be reversed
because (1) the evidence showed insufficient confinement to support his
kidnapping conviction, (2) he was denied access to barrier-free contact
with his counsel prior to trial, (3) photographs of him prior to the assault
were improperly admitted into evidence, (4) opinion testimony related to
the credibility of the alleged victim was improperly excluded, (5) the jury
instruction did not properly define the confinement, and (6) the trial
information did not give him proper notice of the first-degree-kidnapping
charge. We transferred the case to the court of appeals, which affirmed
Robinson’s conviction.
We granted further review. When we grant further review of a
decision of the court of appeals, we have discretion to select issues for
our consideration. In this appeal, we consider two issues. First, whether
there is sufficient evidence in the record to support the defendant’s
conviction for kidnapping and second, whether the defendant is entitled
to barrier-free contact with his attorney. Because we conclude the
evidence was insufficient to support the conviction, we reverse the
conviction. We therefore vacate the court of appeals decision related to
the sufficiency-of-the-evidence claim and the barrier-free contact claim,
but as to the other issues raised in the brief, we will let the court of
appeals opinion stand as the final decision of this court. See Hills Bank
& Trust Co. v. Converse, 772 N.W.2d 764, 770 (Iowa 2009).
I. Factual and Procedural Background.
In the early morning hours of October 8, 2011, Dubuque police
received a complaint about screaming arising from an apartment. Police
3
responded to the scene, heard screams from within the apartment, broke
into the apartment from which the screams arose, and found the
defendant, Robinson, and B.S. half-naked in the bedroom of the
apartment. Police arrested Robinson. On October 12, the State charged
Robinson by trial information with kidnapping in the first degree in
violation of Iowa Code sections 710.1 and 710.2 (2011) and sexual abuse
in the second degree in violation of Iowa Code sections 709.1 and
709.3(1). 1 Robinson did not post bail and was held in the Dubuque
County Jail pending trial.
When Robinson’s counsel sought to meet with him prior to trial,
the visiting rooms utilized at the Dubuque County Jail had a Plexiglas
barrier between Robinson and his lawyer. There was no pass-through
for documents. Video cameras were placed outside the visiting rooms.
Robinson filed a motion seeking an order compelling the State to
provide him with barrier-free access to his attorney. After a hearing, the
district court entered an order declining to compel barrier-free access for
each and every meeting between Robinson and his counsel, but
instructed the State to provide Robinson and his counsel with barrier-
free access upon a showing of need, such as reviewing documents or
video or audio recordings. In the event the jail failed to make such
contact available, the district court established an expedited hearing
process. At such a hearing, if Robinson made a preliminary showing of
need, the State would then have to show a case-specific, individualized
suspicion in order to sustain any action denying barrier-free access. The
record reveals that no further motions were filed with the court on this
issue.
1The district court dismissed this charge prior to the start of trial.
4
The kidnapping case against Robinson proceeded to trial. Because
the trial-related question we have determined to review in this appeal
involves the substantiality of evidence to support Robinson’s conviction
of kidnapping, we review the evidence in the light most favorable to the
State. See State v. Bass, 349 N.W.2d 498, 500 (Iowa 1984).
At trial, the evidence showed that on the evening of October 7,
2011, B.S. began drinking at home with her brother and a friend. After
police officers arrived at the home and asked them to quiet down, the
group decided to continue drinking at downtown bars. Ultimately, they
ended up at a bar in East Dubuque, Illinois, that remained open until
3:00 a.m. B.S. met Robinson at the East Dubuque bar.
Robinson invited B.S. to an after-hours party at his apartment.
After B.S. and Robinson arrived at the apartment, B.S. wondered why
there were no other people at the after-hours party. When B.S. took out
her phone to make a call, Robinson grabbed it and threw it behind a
chair. B.S. then asked Robinson for a drink. But when Robinson made
a visit to the bathroom, B.S. grabbed her purse and ran out the door.
B.S. realized, however, that she had left her phone in the apartment and
went back to retrieve it. When she reentered the apartment, Robinson
shut the front door behind her, locked it, and grabbing her neck and jaw
and covering her mouth, dragged her down the hallway to the bedroom.
B.S. screamed once in the hallway. After shutting and locking the
bedroom door from the inside, Robinson threw her on the bed, got on top
of her, and covered her mouth when she started to scream. Robinson
tried to force B.S. to have oral sex with him. Robinson then flipped B.S.
over on her back, and when she again started to scream, Robinson put
his hand over her mouth and began to penetrate her.
5
Awakened by the noise, a downstairs neighbor phoned the police.
When the police arrived, they heard screaming and ultimately broke
down the front door and entered the apartment. The officers heard more
screaming as they approached the bedroom and after being refused
entry, broke down the bedroom door. When they entered the room, they
saw Robinson and B.S. both naked from the waist down. B.S. was
standing and visibly upset.
Based on the evidence presented at trial, the jury convicted
Robinson of kidnapping in the first degree, sexually motivated.
Robinson appealed. We transferred the case to the court of
appeals. On the issue of sufficiency of the evidence, the court of appeals
focused on the jury instruction which posed the question of whether
Robinson confined B.S. “more than what is included in the commission
of the crime of sexual abuse.” See State v. McGrew, 515 N.W.2d 36, 39
(Iowa 1994) (“A defendant ‘confines’ another person in violation of our
kidnapping statue only if the confinement definitely exceeds the
confinement that is an inherent incident of the underlying felony.”). The
court of appeals noted there was substantial evidence that Robinson
closed the front door and locked it, thereby requiring police to break the
door down in response to screams. The court of appeals further noted
the evidence showed that Robinson physically moved B.S. from the living
room to the bedroom in a manner that prevented her from escaping and
then locked the bedroom door behind him. Robinson then held B.S. in a
fashion that prevented her escape. Based on this evidence, the court of
appeals found sufficient evidence of confinement to support the
kidnapping conviction. The court of appeals further affirmed a pro se
challenge to the effectiveness of Robinson’s trial counsel on the ground
that the instruction on confinement given by the district court was not
6
erroneous. And lastly, for purposes of this opinion, the court of appeals
held that if Iowa Code section 804.20 applies to pretrial detainees
regarding access to barrier-free contact with his or her attorney, the
provision was violated; however, the court was unclear what remedy was
appropriate.
II. Standard of Review.
On the issue of sufficiency of the evidence, we review claims for
correction of errors at law. State v. McCullah, 787 N.W.2d 90, 93 (Iowa
2010). A jury verdict finding of guilt will not be disturbed if there is
substantial evidence to support the finding. See State v. Torres, 495
N.W.2d 678, 681 (Iowa 1993). We consider all the evidence in the record
and not just the evidence supporting the finding of guilt. Id. The record
is viewed in the light most favorable to the State. Id. “Substantial
evidence must do more than raise suspicion or speculation,” State v.
Williams, 695 N.W.2d 23, 27 (Iowa 2005), it must “convince a rational
trier of fact that the defendant is guilty beyond a reasonable doubt,”
Torres, 495 N.W.2d at 681; see Williams, 695 N.W.2d at 27; State v.
Corsi, 686 N.W.2d 215, 218 (Iowa 2004).
On the issue of the defendant’s statutory right to barrier-free
contact with counsel, we review the defendant’s challenge of the district
court’s interpretation of Iowa Code section 804.20 for correction of errors
at law. See State v. Gonzalez, 718 N.W.2d 304, 307 (Iowa 2006).
III. Discussion of Sufficiency of the Evidence to Support
Finding of Confinement Under Iowa’s Kidnapping Statute.
A. Introduction. The concept of the crime of kidnapping has
been with us for a long time. At common law, the misdemeanor of
kidnapping required removal of the victim out of the country. See Natalie
A. Kanellis, Kidnapping in Iowa: Movements Incidental to Sexual Abuse,
7
67 Iowa L. Rev. 773, 775 (1982) [hereinafter Kanellis]; see also 2 Charles
E. Torcia, Wharton’s Criminal Law § 207, at 491–92 (15th ed. 1994).
Following the common law example, early state kidnapping statutes,
including Iowa’s, required removal out of the state. See Kanellis, 67 Iowa
L. Rev. at 775 & n.30 (citing Iowa Code § 2588 (1851) (repealed by Iowa
Acts ch. 1245, ch. 1 § 1001)). The original penalty for kidnapping was
not usually severe. Id. at 776. In Iowa, the original kidnapping penalty
was imprisonment for five years or a $1000 fine. Id. at 776 n.31 (citing
Iowa Code § 2588 (1851)).
In the twentieth century, however, the relatively narrow
kidnapping statutes were replaced with broader statutes. See id. at 776–
77. After the kidnapping crimes of prohibition and the Lindbergh
tragedy, legislatures often wanted to ensure that kidnapping statutes
included holding a person for ransom. See Note, A Rationale of the Law
of Kidnapping, 53 Colum. L. Rev. 540, 540 & n.2 (1953) [hereinafter A
Rationale of the Law of Kidnapping]; see also Kanellis, 67 Iowa L. Rev. at
776–77. Eventually, state kidnapping statutes expanded to include a
host of other dangerous circumstances, often using expansive terms and
including removal or confinement in the commission of serious felonies
such as robbery and sexual abuse. See Kanellis, 67 Iowa L. Rev. at 777.
In addition to expanding the scope of kidnapping, the new statutes
generally significantly increased the penalty for the crime. See id. As a
result, kidnapping statutes embraced a wide and ill-defined range of
behavior which could lead to the most severely punished offenses. See A
Rationale for the Law of Kidnapping, 53 Colum. L. Rev. at 541–43.
Iowa joined the national trend when revising its criminal code in
1976. As noted by one commentator, a legislative study committee “felt
that the kidnapping statute . . . [was] too narrow to adequately deal with
8
present-day problems. The scope of the offense was expanded
accordingly.” John J. Yeager, Crimes Against the Person: Homicide,
Assault, Sexual Abuse, and Kidnapping in the Proposed Iowa Criminal
Code, 60 Iowa L. Rev. 503, 526 (1975). The revised criminal code thus
expanded Iowa’s kidnapping statute to apply when an accused “confines
a person or removes a person from one place to another” with “the intent
. . . to subject the person to a sexual abuse.” Iowa Code § 710.1(3)
(1979). The penalty in Iowa for kidnapping in the first degree was also
increased to life in prison. Id. § 710.2; id. § 902.1.
Expanded kidnapping statutes, however, have proved problematic.
Taken literally, the statutes could convert every robbery or every sexual
abuse into kidnapping with significantly enhanced penalties, as these
crimes invariably involve at least some confinement or removal. A
substantial body of academic literature arose cautioning that the
kidnapping statutes should not be allowed to swallow traditional
gradations in crime. See B.E.H., Judicial Construction of Kidnapping
Statutes, 15 Alb. L. Rev. 65, 73–74 (1951) (noting the harshness of
application of kidnapping statute to felonies and the vesting of the
prosecuting attorney with sole power to charge a person with a much
harsher crime); Lonnie E. Woolverton, Note, Kidnapping and the Element
of Asportation, 35 S. Cal. L. Rev. 212, 217 (1962) (noting it is for the
courts to reasonably apply the statute to ensure there is a taking and
carrying away of such magnitude as to warrant a kidnapping conviction);
A Rationale of the Law of Kidnapping, 53 Colum. L. Rev. at 557 (noting
extremely harsh penalties may be imposed for conduct of relatively little
seriousness); Note, Movement Incidental to the Commission of a Crime
Held Insufficient to Support Indictment for Simple Kidnapping in California,
110 U. Pa. L. Rev. 293, 294 (1961) (noting convictions for “standstill”
9
robberies); Note, Room-to-Room Movement: A Risk Rationale for
Aggravated Kidnapping, 11 Stan. L. Rev. 554, 555 (1959) (observing
California kidnapping statute’s sweeping inclusion of any movement in
the nonransom situation or any detention for extortion has opened the
door to broad interpretations that cannot be justified in terms of
rationale supporting aggravated kidnapping).
The potential broad application of very serious penalties was
addressed by the American Law Institute (ALI) in its Model Penal Code.
In its introductory note, the ALI noted that “[m]any prior kidnapping
statutes combined severe sanctions with extraordinarily broad coverage,
to the effect that relatively trivial restraints carried authorized sanctions
of death or life imprisonment.” Model Penal Code, Explanatory Note for
§§ 212.1–.5, 10A U.L.A. 421 (2001). Because of this extraordinary
imbalance, the Model Penal Code kidnapping provisions were “designed
to effect a major restructuring of the law of kidnapping.” Id. Under the
Model Penal Code, a defendant could be convicted of kidnapping in
connection with an underlying crime only if the removal occurred over “a
substantial distance” or if the confinement occurred over “a substantial
period [of time] in a place of isolation.” Id. § 212.1, 10A U.L.A. at 422–
23.
Courts struggled with the question of whether the new kidnapping
statutes should be applied literally or whether there should be some
limiting construction under the theory that the legislature did not intend
to abolish the distinctions between various crimes and kidnapping that
would result from the literal reading of the statutes. Some early cases
took a literalist view that any movement or any confinement could be
sufficient to support a kidnapping conviction under applicable state
statutes. See State v. Jacobs, 380 P.2d 998, 1002–03 (Ariz. 1963) (en
10
banc) (moving victim at knife point from bathroom to screened porch
sufficient movement); People v. Chessman, 238 P.2d 1001, 1017 (Cal.
1951) (en banc) (“It is the fact, not the distance, of forcible removal which
constitutes kidnapping in the state.”), overruled by People v. Daniels, 459
P.2d 225, 238 (Cal. 1969); State v. Morris, 160 N.W.2d 715, 717–18
(Minn. 1968) (moving victim only 100 to 150 feet sufficient to support
kidnapping charge). These courts often observed that the legislature had
not adopted the language of the Model Penal Code. See, e.g., Morris, 160
N.W.2d at 717 (noting the Minnesota legislature chose not to follow the
Model Penal Code and omitted any qualification as to time or distance of
removal).
A substantial line of authority emerged to the contrary. A leading
case embracing the view that kidnapping statutes should be subject to a
limiting construction was People v. Levy, 204 N.E.2d 842, 844 (N.Y.
1965). In this case, the New York Court of Appeals reviewed a
kidnapping conviction in which defendants stopped the victims’ car, got
in, and demanded jewelry and cash while the car traveled a distance of
twenty-seven blocks. Id. at 843. The Levy court acknowledged that the
applicable kidnapping statute was broadly written to include any
restraint of a victim, however, the court declared the kidnapping statute,
so construed, “could literally overrun several other crimes, notably
robbery and rape, and in some circumstances assault, since detention
and sometimes confinement, against the will of the victim, frequently
accompanies these crimes.” Id. at 844. The Levy court further
concluded that:
It is unlikely that these restraints, sometimes
accompanied by asportation, which are incidents to other
crimes and have long been treated as integral parts of other
crimes, were intended by the Legislature in framing its broad
11
definition of kidnapping to constitute a separate crime of
kidnapping, even though kidnapping might sometimes be
spelled out literally from the statutory words.
Id. The general rationale in Levy has been adopted in a number of
jurisdictions and now represents the majority view. See, e.g., Daniels,
459 P.2d at 235–38; People v. Bridges, 612 P.2d 1110, 1116–17 (Colo.
1980) (en banc); State v. Reiman, 284 N.W.2d 860, 873–74 (S.D. 1979);
see also Frank J. Wozniak, Annotation, Seizure or Detention for Purpose
of Committing Rape, Robbery, or Other Offense as Constituting Separate
Crime of Kidnapping, 39 A.L.R.5th 283, 356 & n.4 (1996 & Supp. 2014)
[hereinafter Wozniak] (citing cases and noting that “the majority view is
that kidnapping statutes do not apply to unlawful confinements or
movements ‘incidental’ to the commission of other felonies”).
Levy is sometimes characterized as embracing what has become
known as the “incidental” rule or approach to kidnapping statutes. See
Bridges, 612 P.2d at 1117. The general notion is that when confinement
or removal is part-and-parcel of an underlying crime such as robbery or
sexual abuse, such removal or confinement is considered incidental to
the underlying crime and does not provide a basis for a separate
kidnapping prosecution. In order for an accused to be charged with both
kidnapping and the underlying felony, the confinement or removal must
be in excess or beyond that normally associated with the underlying
crime.
Even among courts that have departed from a literalist
interpretation and adopted the incidental approach, however, there are
substantial questions of scope and application. What exactly does it
mean for confinement or removal to be incidental to other crimes?
Where does a court draw the line between confinement or removal that is
merely incidental and that which supports a conviction of both
12
kidnapping, with its harsh penalties, and the underlying crime? See
Wozniak at 355–58 (noting different tests for determining whether
confinement or removal is sufficient to support conviction of kidnapping
and the underlying crime). See generally John L. Diamond, Kidnapping:
A Modern Definition, 13 Am. J. Crim. L. 1, 4–30 (1985) [hereinafter
Diamond] (outlining various approaches in California, New York,
Michigan, Kansas, and under the Model Penal Code).
In general, the approaches to kidnapping in the context of the
commission of other crimes fall into five broad categories. The first
category is the traditional “any movement” cases that reject the rationale
of Levy and apply kidnapping statutes literally. Under this approach,
any movement or any confinement, however slight, could expose a
defendant to kidnapping for conduct which occurred in the course of
committing another felony. See, e.g., Jacobs, 380 P.2d at 1002–03;
Chessman, 238 P.2d at 1017.
The second category of cases hold that movements or confinements
intended to facilitate the commission of lesser crimes should be
considered incidental to the lesser crime and thus do not give rise to
kidnapping. Thus, in Levy, 204 N.E.2d at 843–45, the New York Court of
Appeals held that an abduction of the victims from in front of their home
and driving them a distance of twenty-seven blocks to rob them of their
money and jewelry did not give rise to kidnapping. Similarly, in People v.
Lombardi, 229 N.E.2d 206, 207–08 (N.Y. 1967), the New York Court of
Appeals reversed kidnapping convictions in which the defendant drugged
women, drove them from Manhattan to a motel in Queens, and held
them there for a number of hours as part of attempted sexual assaults.
The court held that the confinements involved were incidental to the
attempted rapes. Id. at 209; see also Daniels, 459 P.2d at 226–28, 238
13
(holding evidence insufficient to support kidnapping in four rapes in
which (1) attacker held knife to victim and forced her into car where he
raped her; (2) assailants forced their way into victim’s home, walked
victim through dining room into kitchen, put dishtowel over her face, and
raped her; (3) attackers forced way into victim’s apartment, one pulled
out gun, took victim to couch for oral sex, then took her into adjoining
bathroom, raped her, and threatened to rip out phone; and (4) assailants
forced their way into victim’s apartment at gunpoint, put hand over
victim’s mouth, walked her toward kitchen and then to bedroom,
checking first to see if anyone was present, and then raped her). The
“facilitate is incidental” approach removes many cases from kidnapping
that might otherwise fall within the literal terms of the statutes.
The Supreme Court of Kansas in State v. Buggs, 547 P.2d 720
(Kan. 1976), launched a third line of cases that were less protective of
defendants but still removed some situations in which there was removal
or confinement from the ambit of kidnapping statutes. In Buggs, a
woman leaving a store with her son was accosted, told not to try
anything, and was forced back into the store, where she was forced down
on the floor and was raped by an assailant brandishing a knife. Id. at
723–24. The Buggs court rejected the approach of Levy noting that
under the applicable Kansas statute, facilitation of an underlying offense
constituted kidnapping. Id. at 730–31. The Buggs court also rejected
the approach in Daniels, which placed strong emphasis on the increased
risk of harm as an indispensable element for kidnapping in the context of
an underlying felony. Id. at 731. The Buggs court noted that lessening
the risk of detection may also trigger kidnapping. Id.
14
The Buggs court developed a three-pronged test to determine
if a taking or confinement is alleged to have been done to
facilitate the commission of another crime, to be kidnapping
the resulting movement or confinement:
(a) Must not be slight, inconsequential, and merely
incidental to the other crime;
(b) Must not be the kind inherent in the nature of the
other crime; and
(c) Must have some significance independent of the
other crime in that it makes the other crime substantially
easier of commission or substantially lessens the risk of
detection.
Id. The Buggs court offered some examples to illuminate its principles.
According to the Buggs court:
A standstill robbery on the street is not kidnapping; the
forced removal of the victim to a dark alley for robbery is.
The removal of a rape victim from room to room within a
dwelling solely for the convenience and comfort of the rapist
is not a kidnapping; the removal from a public place to a
place of seclusion is.
Id. Applying its test, the Buggs court concluded the conduct of the
defendants constituted kidnapping. Id. at 731–32. The court noted the
robbery could have been accomplished outside the store, but instead, the
defendants forced the victims inside to relative seclusion. Id. at 731.
The movement, though slight, substantially reduced the risk of detection.
Id. at 731–32. Therefore, the court held there was a “confinement to
‘facilitate’ the commission of the robbery and rape.” Id. at 732.
The approach in Buggs was largely followed by the Florida
Supreme Court in Faison v. State, 426 So. 2d 963 (Fla. 1983). In Faison,
the accused dragged a receptionist “from her desk in front of a large
window to the rear of the office where he sexually assaulted her[,]”
“forced her into a nearby restroom and raped her again.” Id. at 964. In a
second incident, the defendant broke into the victim’s home, violently
dragged her from the kitchen to the bedroom, and raped her. Id.
15
The Faison court adopted the Buggs test. Id. at 966. In applying
it, the Faison court concluded the evidence supported kidnapping
convictions. Id. The court noted the sexual assault could have been
committed “on the spot” without any movement, and because the victims
were moved through doors to a more secluded area, the defendant’s
actions substantially lessened the risk of detection. Id.
It is noteworthy, however, that the Faison court drew a strong
dissent. According to Justice Boyd, the general principle adopted by the
majority, namely, that detentions or removals that are merely incidental
to the commission of other felonies should not give rise to a kidnapping
prosecution, was correct. Id. at 968 (Boyd, J., concurring in part and
dissenting in part). Justice Boyd, however, argued movement or
confinement is incidental unless it has “sufficient independent
significance to justify the [separate charge and conviction] for
kidnapping.” Id. at 969. In order to make that determination, Justice
Boyd urged consideration of a number of factors including “location,
duration, method, manner, and purpose of the abduction or
confinement.” Id. at 968. According to Justice Boyd, the factors should
be considered
not only in the light of whether the abduction or confinement
facilitates the commission of another crime, but also, and
principally, in light of whether the factors expose the victim
to a risk of physical or mental harm substantially greater
than the risk of harm ordinarily encountered by the victim of
the forcible felony being committed.
Id. He implicitly rejected the notion that a conviction for kidnapping
could be upheld when the defendant’s action simply facilitated making
the crime easier to commit or less susceptible to detection. Id. at 969.
The approach of the dissent in Faison—namely, focusing on the
substantial increase in the risk of harm—has been adopted in the
16
District of Columbia. See Nelson v. United States, 601 A.2d 582, 598
(D.C. 1991) (noting that in determining whether confinement is
significant to warrant an independent prosecution of kidnapping turned
on “whether the kidnapping substantially increased the risk of harm to
the victim beyond that inherent in the underlying crime”); see also Wright
v. State, 581 P.2d 442, 443–44 (Nev. 1978), modified in part by Mendoza
v. State, 130 P.3d 176, 180 & n.19 (Nev. 2006) (noting that dual
convictions are proper “where the movement or restraint serves to
substantially increase the risk of harm to the victim over and above that
necessarily present in an associated offense . . . or where the seizure,
restraint or movement of the victim substantially exceeds that required
to complete the associated crime charged”).
A fourth line of cases adopted a multifactored approach to
determining if there is sufficient evidence independent of the underlying
felony to support kidnapping. The leading case is Government of Virgin
Islands v. Berry, 604 F.2d 221, 227 (3d Cir. 1979). In Berry, the court
identified four factors to be considered, namely
(1) the duration of the detention or asportation; (2) whether
the detention or asportation occurred during the commission
of a separate offense; (3) whether the detention or
asportation which occurred is inherent in the separate
offense; and (4) whether the asportation or detention created
a significant danger to the victim independent of that posed
by the separate offense.
Id. The Berry approach has been followed by a number of other
jurisdictions. See, e.g., Garza v. State, 670 S.E.2d 73, 78 (Ga. 2008)
(noting the factors are to be reviewed as a whole and that not all four
factors need be established to sustain a kidnapping conviction),
superseded by statute in part, Ga. Code Ann. § 16-5-40, as stated in
Inman v. State, 755 S.E.2d 752, 755 & n.2 (Ga. 2014); State v. Stouffer,
17
721 A.2d 207, 215 (Md. 1998) (adopting a slightly different multifactored
approach); see also United States v. Howard, 918 F.2d 1529, 1535–37
(11th Cir. 1990).
Finally, a number of jurisdictions, often after legislative action,
follow the approach of the Model Penal Code. These jurisdictions require
that confinement occur in a “place of isolation” for a “substantial period”
of time. See, e.g., State v. Bunker, 436 A.2d 413, 416 & n.3 (Me. 1981);
State v. Brent, 644 A.2d 583, 589 (N.J. 1994).
The choice of test for determining whether kidnapping may be
supported when there is an underlying felony is critical to outcomes.
Under the New York approach in Levy and its progeny, many if not most
robberies and sexual assaults will not give rise to kidnapping charges,
while, in contrast, under the Arizona approach in Jacobs, only standstill
robberies and sexual assaults are outside the scope of kidnapping
statutes. Compare Levy, 204 N.E.2d at 844, with Jacobs, 380 P.2d at
1002–03. The approach in Buggs and related cases appears to be an
intermediate approach, refusing to limit the scope of kidnapping statutes
unless movement or confinement in excess of a standstill crime is
“significant” or “substantial” under various tests. See Faison, 426 So. 2d
at 966; Buggs, 547 P.2d at 730–32.
The selection of a particular legal framework, however, does not
resolve all controversies. Regardless of the test adopted, there have been
serious controversies surrounding the application of any test to
particular factual settings. As noted by one court, the applicable test “is
not an easy one to apply.” Berry v. State, 668 So. 2d 967, 970 (Fla.
1996). Another court has noted the hundreds of reported decisions
broken down into many discrete categories with “cases sustaining and
cases reversing separate kidnapping convictions.” Stouffer, 721 A.2d at
18
213. The difficulty of applying legal principles to the facts at hand is
demonstrated by the frequency of dissents in important cases involving
the application of kidnapping statutes in which there are other
underlying crimes. See, e.g., People v. Martinez, 973 P.2d 512, 523–27
(Cal. 1999) (Mosk, J., dissenting); People v. Rayford, 884 P.2d 1369,
1382–84 (Cal. 1994) (Mosk, J., dissenting); Ferguson v. State, 533 So. 2d
763, 765 (Fla. 1988) (Kogan, J., dissenting); Faison, 426 So. 2d at 967–
69 (Boyd, J., concurring in part and dissenting in part); Tindall v. State,
45 So. 3d 799, 803–04 (Fla. Dist. Ct. App. 2010) (Farmer, J., dissenting);
Garza, 670 S.E.2d at 80–84 (Carley, J., dissenting); State v. Burton, 649
So. 2d 694, 700 (La. Ct. App. 1994) (Saunders, J., concurring in part and
dissenting in part); State v. Rosling, 180 P.3d 1102, 1119–21 (Mont.
2008) (Warner, J., concurring in part and dissenting in part); State v.
Wooten, 374 A.2d 1204, 1204–11 (N.J. 1977) (per curiam) (Pashman, J.,
dissenting) (affirming, by equally divided court, kidnapping conviction);
State v. Dixon, 957 S.W.2d 532, 536 (Tenn. 1997) (Reid, J., dissenting),
overruled by State v. White, 362 S.W.3d 559, 578 (Tenn. 2012); State v.
Finlayson, 956 P.2d 283, 295–96 (Utah Ct. App. 1998) (Wilkins, J.,
concurring in part and dissenting in part); see also Diamond, 13 Am. J.
Crim. L. at 27 n.147 (noting the difference in application of the Buggs
test by the Kansas courts and the more liberal application of the same
test by Florida courts); Mark M. Dobson, Criminal Law: 1996 Survey of
Florida Law, 21 Nova L. Rev. 101, 105 (1997) (noting “[the] test has been
easier to state than to apply”); Jane Albertson, Note, Criminal Law:
Lowering the Threshold for Kidnapping to Facilitate a Felony, 35 U. Fla. L.
Rev. 528, 533 (1983) (questioning application of test in a fashion that
drops kidnapping to an unquestionably low threshold).
19
Today, it is our turn to consider the difficult issues related to
kidnapping in the context of underlying criminal activity.
B. Iowa Precedents on Confinement. Because this case involves
the question of what quantity and quality of evidence is required to
support a kidnapping conviction, a careful review of the facts of Iowa
caselaw, as well as the principles established in these cases, is essential
for a full understanding of the issues. We therefore review our
kidnapping cases in detail.
We first considered the question of the proper approach to
kidnapping in the context of the commission of another crime under our
current kidnapping statute in State v. Rich, 305 N.W.2d 739, 741–42
(Iowa 1981) (citing Iowa Code § 710.1 (1979)). In Rich, viewing the facts
most favorable to the State, the defendant, a custodian, grabbed the
victim from behind in a shopping center, held a sharp object to her back,
led her down a corridor to the men’s restroom, forced her to lie down on
her stomach, tied her hands behind her back, took her into the restroom,
and sexually abused her. Id. at 740. After the sexual abuse, the
defendant took her out of the restroom; temporarily tied her to a
bannister with a rag and her bra, which had been ripped off; eventually
forced her into a three-wheeled trash container, covering her with trash;
and wheeled the trash container into a maintenance room, tying her feet.
Id. at 741. The defendant eventually wheeled her out of the maintenance
room back into the mall area, where she managed to tip the container
and run. Id. The defendant caught up with her, however, and placed
her back into the trash container before she was ultimately able to break
free and flee the scene. Id.
Recognizing the question of whether to adopt the literal or
incidental approach as a question of first impression under our
20
expanded kidnapping statute, 2 we began our discussion by canvassing
the approach to kidnapping statutes in other states. Id. at 742–45. We
recognized that some courts adopted a literalist view of confinement or
removal in their broadly framed kidnapping statutes. Id. at 742 (citing
Jacobs, 380 P.2d at 1002). We quoted at length, however, from Levy, for
the proposition that broad interpretation of kidnapping statutes could
lead to results unintended by the legislature. Id. at 742–43. While we
cited favorably the policy rationale in Levy and Daniels, we recognized
that in Kansas and Florida the courts seemed to “be giving a restricted
application to the New York and California rules,” id. at 744–45, and “the
manner in which rules [related to interpretation of kidnapping statutes in
the context of other crimes] are applied differs substantially among the
states,” id. at 743.
After canvassing the cases, we came down firmly on the side of the
cases adopting the incidental rule. Id. at 745. We recognized every
assault, rape, and robbery involves some act of intentional confinement
or movement. Cf. id. (discussing sexual assault). We reasoned
notwithstanding the unqualified language in Iowa Code section 710.1(3),
the legislature did not intend to give the prosecution a choice of two
penalties of such a disparate nature for sexual abuse. Id. We noted
under Iowa law a conviction of first-degree kidnapping was punishable
2A few months prior to Rich, in State v. Holderness, 301 N.W.2d 733, 739–40
(Iowa 1981), we considered a kidnapping case in which the question of whether Iowa
should adopt the incidental approach to our new kidnapping statute was raised. The
evidence viewed most favorably to the State showed that the victim was transported by
automobile for several miles into the countryside to detain her in isolation and in secret,
where she was subjected to various acts of sexual abuse. Id. at 736, 740. The
detention lasted for over two hours. Id. at 740. Because we concluded that the State
offered sufficient evidence to support a kidnapping conviction even under the incidental
approach, we did not expressly decide the issue in that case. Id.
21
by life in prison, while third-degree sexual abuse was punishable by no
more than ten years in prison. Id. Further, we doubted the legislature
intended the possibility of life in prison to apply to the “usual” case of
sexual abuse, in which some movement or confinement occurs. Id. We
declared such a literal interpretation of the statute “would not be
sensible or just.” Id. We thus concluded the legislature intended that
the kidnapping statute be applicable only in situations in which the
“confinement or removal definitely exceeds that which is merely
incidental to the commission of sexual abuse.” Id.
The question remained how to determine what confinement or
removal is incidental. In now oft quoted language, the Rich court
concluded
that our legislature, in enacting section 710.1, intended the
terms “confines” and “removes” to require more than the
confinement or removal that is an inherent incident of
commission of the crime of sexual abuse. Although no
minimum period of confinement or distance of removal is
required for conviction of kidnapping, the confinement or
removal must definitely exceed that normally incidental to
the commission of sexual abuse . . . . Such confinement or
removal may exist because it substantially increases the risk
of harm to the victim, significantly lessens the risk of
detection, or significantly facilitates escape following the
consummation of the offense.
Id. (emphasis added).
The heart of Rich was the three-pronged test used for determining
whether confinement or removal exceeded that normally incident to the
commission of sexual abuse. Id. at 745–46. Whether any element of this
three-pronged test was satisfied would depend upon the totality of the
facts. Id. at 746.
Applying our approach to the incidental rule, in Rich we concluded
the confinement and removal supported the defendant’s conviction of
kidnapping. Id. We noted that merely moving the victim from the mall to
22
the restroom, in and of itself, was not sufficient to support a kidnapping
conviction. Id. at 745. We observed, however, that although the doors of
the shopping center were locked, the defendant first looked into the
restroom and was moving the victim to the bathroom not for comfort, but
for seclusion. Id. In addition, the defendant had bound the victim, not a
normal incident of a sexual attack. Id. at 745–46. Further, subsequent
to the sexual attack, the confinement of the victim continued in a fashion
not incidental to the sexual attack. Id. at 746. Under the totality of the
facts, we concluded the State had offered sufficient evidence to engender
a jury question and avoid a directed verdict of acquittal on the
kidnapping charge. Id.
We applied the Rich tripartite test in State v. Knupp, 310 N.W.2d
179, 182–83 (Iowa 1981). In Knupp, the defendant picked up the victim
in his car on New Year’s Eve as she walked across an icy bridge over the
Mississippi River. Id. at 181. The State offered evidence to show that the
victim left the defendant’s car at the tollbooth, but a short time later, he
returned, opened the passenger door, and asked if she wanted a ride. Id.
The defendant then seized her by the arm, pulled her into the car, and
drove away. Id. After driving six or seven blocks, the defendant stopped
the vehicle under an overpass. Id. After the victim managed to alight
from the car, the defendant hit her several times, cut through her
clothing with a knife, and forced her back into the vehicle where he
committed the sexual act. Id.
In Knupp, we repeated the tripartite test announced in Rich. Id. at
182–83. Applying the Rich test to the facts, we held in a somewhat
conclusory fashion that the conduct of the defendant substantially
exceeded that which could have been considered incidental because it
23
substantially increased the risk of harm and significantly lessened the
risk of detection. Id. at 183.
In State v. Marr, 316 N.W.2d 176, 180 (Iowa 1982), however, we
concluded the State failed to produce sufficient evidence under the Rich
tripartite test to support a kidnapping conviction. In Marr, the State
produced evidence tending to show the defendant followed the victim by
foot when she left a drug store at 10:00 p.m. Id. at 177. When the
victim was outside her residence, the defendant grabbed her, clamped
his hand over her mouth, threatened her not to scream, slammed her
against the corner of the building, shoved her to the ground, and dragged
her some ten to fifteen feet into a gangway near the victim’s house. Id. at
177–78. At that point, the defendant began to sexually abuse the victim,
who could not scream or breathe because the defendant clutched her
throat. Id. at 178. Her husband, however, interrupted the attack, which
lasted two or three minutes. Id.
In Marr, we held that the State failed to offer sufficient evidence to
support kidnapping under the Rich tripartite test. Id. at 179–80. We
emphasized the intensifiers in Rich, expressly stating that under Rich,
the necessary additional confinement or removal may be present when
the actions of the defendant “substantially” increased the risk of harm,
“significantly” lessened the risk of detection, or “significantly” facilitated
escape. Id. at 178–79. We further cited the Model Penal Code’s
emphasis on preventing robbery and rape from escalating into
kidnapping, id. at 180 (citing Model Penal Code & Commentaries Part II
§ 212.1 cmt. 1 (1980)), and a leading Iowa authority for the proposition
that to be punishable for kidnapping, the removal or confinement must
“ ‘add substantially to the heinousness of the sexual abuse,’ ” id. (quoting
John L. Yeager & Ronald L. Carlson, Iowa Practice: Criminal Law and
24
Procedure 66 (1979) [hereinafter Yeager & Carlson]). We contrasted the
facts of the case with Rich, in which the totality of evidence supported
movement for purposes of seclusion, including the binding of the victim’s
hands and subsequent confinement. Id. at 178–79 (citing Rich, 305
N.W.2d at 745–46). With respect to Knupp, we noted in that case, the
defendant pulled the victim into his vehicle, drove for several blocks, hit
her several times, and forced her back into the car before the act of
sexual abuse occurred. Id. at 179. Under the facts of the case, we
concluded in Marr that the totality of the evidence was not enough to
support kidnapping. Id. at 179–80.
We also found the evidence insufficient in our next kidnapping
case involving the underlying crimes of burglary and assault while
committing a felony. State v. Mead, 318 N.W.2d 440, 445 (Iowa 1982).
In Mead, the State offered evidence to show that when the victim and her
daughter approached the entrance to their home, the defendant emerged
and when they opened the door, walked into the house along with them.
Id. at 441–42. The defendant grabbed the mother from the back and
held a knife to her throat, declaring, “ ‘[T]his woman is dead.’ ” Id. at
442. After the mother freed herself and ran, the defendant struck the
daughter in the face and a struggle ensued over her purse. Id. The
defendant was charged with second-degree kidnapping, first-degree
burglary, and assault while participating in a felony. Id.
After canvassing the evidence, we applied the Rich tripartite test in
a verbatim fashion concluding that the state failed to offer sufficient
evidence to support the kidnapping charge. Id. at 445. Although the
mother was seized for a moment, we distinguished the seizure from a
detention. Id. We observed that “unless we extend kidnapping to nearly
any case involving a seizure by a defendant of another person during the
25
commission of a crime, which we refuse to do, the instant case does not
involve sufficient confinement to constitute kidnapping.” Id. Although
the mother may have been briefly confined in place, such an act was
insufficient to support a kidnapping conviction. Id.
Since Marr, we have considered whether the evidence supported
kidnapping under the Rich tripartite test in a number of cases. In these
cases, we have sometimes noted that the confinement or removal
substantially exceeded that in Marr and Mead. For example, in State v.
Newman, 326 N.W.2d 796, 801–02 (Iowa 1982), we concluded there was
sufficient evidence of confinement to support a kidnapping conviction
when a seventh-grade student was walking to a friend’s house, was
enticed by the defendant to enter a truck by the showing of an apparent
police badge, was subsequently sexually assaulted and then driven on a
road to a location where there were no dwellings where a second sexual
assault occurred.
Indeed, in all of our kidnapping cases subsequent to Marr and
Mead, we have found sufficient evidence to support a kidnapping
conviction under the Rich tripartite test. Most of these cases, however,
have involved settings in which confinement or removal beyond that
ordinarily associated with the underlying offense was clear. See, e.g.,
State v. Griffin, 564 N.W.2d 370, 372–73 (Iowa 1997) (affirming
kidnapping conviction when evidence showed that defendant and victim
went to motel where defendant choked, beat, and sexually assaulted her;
ordered her to disrobe to prevent her from leaving; told sister who was
checking on victim to leave; and continued to confine the victim after
assault); McGrew, 515 N.W.2d at 38, 39–40 (affirming kidnapping
conviction when defendant entered victim’s bedroom; placed his hand
over her face and mouth; tied her hands behind her back and taped
26
around her mouth, head, and neck; forced victim into hallway outside
her bedroom, down stairway, then back into bedroom; touched steel
object to her and sexually abused her; then after attack got up and
walked around bed thirty times, searching through drawers and closets,
with victim waking up hours later); State v. Hatter, 414 N.W.2d 333, 335,
338 (Iowa 1987) (affirming kidnapping conviction when defendant
grabbed victim after she left junior high, forced victim into car at
knifepoint, handcuffed her, drove five miles to a rural area, engaged in
sexual abuse, and released her under promise not to say anything only
after car got stuck in mud); State v. Misner, 410 N.W.2d 216, 217–18,
223–24 (Iowa 1987) (affirming kidnapping conviction when inmates
armed with shanks and knifes captured and detained five guards on one
floor, forced officer to release a number of prisoners, locked up a guard
in a storage room, bound guards with tape, and claimed guards were
held “hostage” and that demands would be forwarded); State v. Hardin,
359 N.W.2d 185, 187, 190 (Iowa 1984) (affirming kidnapping conviction
on evidence that victim drove defendant home from bar, defendant hit
victim in face, dragged her from vehicle, and forced her inside his house
for sexual assault); 3 State v. Ristau, 340 N.W.2d 273, 274, 276 (Iowa
1983) (affirming kidnapping conviction on evidence similar to that in
Newman); State v. Folck, 325 N.W.2d 368, 370–71 (Iowa 1982) (affirming
conviction when victim held over extended period of several hours and
was taken to secluded spot where detection was unlikely and
3In Hardin, 359 N.W.2d at 189–90, we were asked to consider revising the Rich
tripartite test by eliminating the detection and escape prongs and focusing entirely
upon the substantial risk of harm beyond that ordinarily incident to the underlying
felony. This position was advocated in the pages of the Iowa Law Review and has some
support in the caselaw. Kanellis, 67 Iowa L. Rev. at 800–01. We declined in Hardin to
revise the Rich tripartite test. See 359 N.W.2d at 190.
27
substantially increased risk of harm if victim tried to defend herself or
escape).
While these cases found that kidnapping convictions were
supported based on the evidence, they repeatedly endorsed Rich as
providing the proper legal framework for analyzing the sufficiency of the
evidence. For instance, in Misner, 410 N.W.2d at 222, the court reprised
the Rich tripartite test, noting that confinement or removal must exceed
that normally incident to the underlying crime and that confinement or
removal sufficient to support a charge of kidnapping may exist if the
evidence shows the confinement or removal substantially increased the
risk of harm, significantly lessened the risk of detection, or significantly
facilitated the escape of the perpetrator. According to Misner, the Rich
standards were “unquestionably the law in Iowa today.” Id. We referred
to the Rich tripartite test, with the three intensifiers, in all of our
subsequent cases involving kidnapping in the context of the commission
of other crimes. See Griffin, 564 N.W.2d at 373; McGrew, 515 N.W.2d at
39; Hatter, 414 N.W.2d at 335–36; State v. Doughty, 359 N.W.2d 439,
440 (Iowa 1984); Hardin, 359 N.W.2d at 189; Newman, 326 N.W.2d at
801; Folck, 325 N.W.2d at 371; Mead, 318 N.W.2d at 443–44; Marr, 316
N.W.2d at 178; Knupp, 310 N.W.2d at 183. 4
4In most of the incidental rule cases, the defendant is convicted of an underlying
crime such as robbery or sexual abuse. Here, the underlying crime of sexual abuse was
dismissed prior to trial. There is a question whether the incidental rule applies when
the underlying charge is dismissed. Cf. People v. Salimi, 552 N.Y.S.2d 964, 964–65
(App. Div. 1990) (holding kidnapping and underlying crime could be merged even when
defendant has been acquitted of underlying charge); State v. French, 428 A.2d 1087,
1088 (Vt. 1981) (noting merger of crimes has no application to a situation in which no
conviction was obtained on the underlying crime). The State does not contend,
however, that the incidental rule does not apply because of the dismissal of the
underlying sexual abuse charge. As a result, we assume the incidental rule applies in
this case.
28
C. Application of the Rich Tripartite Test. The challenge here
is applying the Rich tripartite test to a case in which the evidence
supporting independent confinement is markedly less than in many of
our cases, but in which there is evidence showing something more than a
mere “standstill offense.” Our cases have generally held that the
substantially-increased-risk-of-harm prong of the Rich tripartite test may
be satisfied if the duration of confinement substantially exceeds that of
the underlying crime. See, e.g., Griffin, 564 N.W.2d at 373 (noting victim
held overnight); McGrew, 515 N.W.2d at 40 (noting four hour
confinement). Here, however, the duration of the confinement did not
significantly exceed that associated with the underlying sexual abuse.
While the victim was dragged from the hallway to the bedroom, the few
seconds of additional confinement stemming from this conduct contrasts
sharply with other cases in which the duration of the confinement clearly
exceeded the time required for the underlying sexual assault. It is hard
to say the few extra seconds of confinement within the apartment
significantly increased the risk of harm to the victim.
With respect to manner of confinement, our cases often emphasize
the use of a weapon or the binding of the defendant in a fashion that
exceeds confinement ordinarily incident to sexual abuse. See, e.g.,
Griffin, 564 N.W.2d at 372–73 (The victim was beat and sexually
assaulted with a bottle.); McGrew, 515 N.W.2d at 38, 39–40 (The victim’s
hands were tied behind her back and tape was placed around her mouth,
head, and neck; further, defendant had a knife and gun with him during
attack.); Hatter, 414 N.W.2d at 335, 338 (The victim was forced into
defendant’s car at knifepoint.); Knupp, 310 N.W.2d at 181 (The defendant
cut through victim’s clothing with a knife.); Rich, 305 N.W.2d at 740–41
(The victim’s hands and feet were bound.). In this case, the defendant
29
did not use a weapon or bind the victim. He did place his hand over the
victim’s mouth, but such contact in and of itself was found insufficient to
support a kidnapping conviction in Marr, 316 N.W.2d at 177, 179. Thus,
an important factual feature of many of our cases upholding kidnapping
convictions—the use of a weapon or the binding of the victim beyond that
needed to accomplish sexual abuse—is not present here.
There was, however, at least some additional evidence that may be
cited as increasing the risk of harm or lessening the possibility of
detection. The State offered evidence that the defendant locked the front
door of the apartment and the door to the bedroom during the incident.
And, the State offered evidence that prior to the alleged sexual assault
the defendant grabbed the victim’s cell phone and threw it over a chair in
the living room.
Overall, the evidence is less substantial than in many of our
kidnapping cases. But that is not the question. The question is whether
it is so insubstantial that, as a matter of law, the defendant’s kidnapping
conviction cannot stand.
There are filaments in our cases that point in both directions. For
instance, in Griffin, 564 N.W.2d at 373, the defendant confined the victim
after the sexual assault by preventing her from making contact with
others, thereby lowering the risk of detection. It could be argued that by
seizing the victim’s cell phone and throwing it over a chair, the defendant
accomplished the same thing. A cell phone, however, ordinarily does not
provide a realistic vehicle for exposing the crime when the confinement
for all practical purposes is limited to the period of time of the sexual
assault itself. And in Griffin, the confinement in the motel room lasted
overnight and into the next afternoon, far beyond that normally incident
to the crime of sexual abuse. Id.
30
In addition, the State offered evidence that the victim was confined
while being moved from the hallway into the bedroom and that the
defendant locked the doors to both the main door of the apartment and
the bedroom. In McGrew, 515 N.W.2d at 40, we held that the relatively
short movement of a victim into a bedroom for purposes of seclusion is a
factor that may be considered in determining whether a defendant may
be convicted of kidnapping during the course of committing another
felony. McGrew, however, also involved the binding of the hands and the
detention of the victim for a four-hour period, and thus under the totality
of circumstances, we concluded that there was a substantial increase in
the risk of harm. Id. at 39–40. In contrast to McGrew, we held in Marr
that the confinement associated with throwing a victim against the
corner of a house and dragging her ten to fifteen feet into a gangway
between houses was insufficient to support a kidnapping conviction.
316 N.W.2d at 177–78, 179.
Except for the locking of the doors, this case seems roughly
analogous to Marr. While the defendant did lock the doors to the
apartment and the bedroom, the victim was not locked in, rather, other
persons were locked out. The doorway to the apartment was in a
residential structure which would ordinarily be locked at night when
there would be few curious passersby. While this action may have
marginally lessened the risk of detection, the crime occurred within a
short period of time in the same enclosed space. The victim was not
moved from a public to a private, more secluded, environment.
While the underlying kidnapping statutes and applicable legal tests
in the various states are not identical and the facts have many
permutations, there is some authority from other jurisdictions for the
proposition that evidence like that offered here is insufficient to support
31
kidnapping. In Tindall, 45 So. 3d at 800, the state offered evidence that
at two different times the defendant grabbed each victim and pulled her
inside his home and into his bedroom, which he subsequently locked,
and sexually battered each victim. The Florida appellate court held that
the confinement lasted only so long as the actual battery. Id. at 802–03.
Further, citing applicable Florida authority, the Tindall court noted that
“ ‘there can be no kidnapping where the only confinement involved is the
sort that though not necessary to the underlying felony, is likely to
naturally accompany it.’ ” Id. at 803 (quoting Berry, 668 So. 2d at 969).
Somewhat similar is State v. Goodhue, 833 A.2d 861 (Vt. 2003). In
Goodhue, the Vermont Supreme Court considered a case in which the
state offered evidence to show that the defendant entered through a
kitchen door and ordered a twelve-year-old girl into an adjoining
bathroom for purposes of sexual assault. Id. at 862. The Goodhue court,
after canvassing the history of kidnapping and the problems of applying
Vermont’s statute literally, held that the additional confinement was
insufficient to support an independent prosecution for kidnapping. Id. at
864–69.
Reading between the lines in Tindall and Goodhue, it appears there
may be some reluctance to find the independent crime of kidnapping
when the additional confinement or removal occurs within an enclosed
structure. Such additional confinement or movement within an enclosed
structure may not be a sufficiently significant change in the risk
environment to substantially increase the risk of harm, significantly
lessen detection, or significantly aid escape.
32
On the other hand, there is authority to the contrary. 5 For
example, in a case resembling ours, in Burton v. State, 426 A.2d 829,
831–32, 835 (Del. 1981), the Delaware Supreme Court held that when a
defendant grabbed and twisted a victim’s arm, forced her to move from
room-to-room several times, and raped her twice, there was sufficient
confinement present to support a kidnapping conviction. In Burton, as
here, the length of time of any additional confinement was quite short,
approximately thirty minutes, and occurred within an enclosed
structure. Id. at 832–33.
The above cases are only meant to illuminate the problem. The
leading annotation on the subject currently boasts 549 pages of fine
squibs from the caselaw. Wozniak at 283–762 & Supp. 24–94. These
authorities could be endlessly sliced and diced but to little effect. That
said, there are a number of cases in which room-to-room movement has
been found sufficient and in which locked doors and telephone
5Like the confinement cases, the cases considering whether there was sufficient
removal to support a kidnapping charge when a victim is moved from one room to
another within an existing structure have reached differing results. In some cases, the
movement from one room to another within a structure has been held insufficient
removal to support a kidnapping charge. See, e.g., Buggs, 547 P.2d at 731 (“The
removal of a rape victim from room to room within a dwelling solely for the convenience
and comfort of the rapist is not a kidnapping.”); Goodhue, 833 A.2d at 868 (holding
movement of victim from kitchen to bathroom did not exceed confinement or removal
inherent in the commission of the crime of sexual assault). In other cases, such
removal has been found sufficient, often on the grounds that the movement made the
crime easier to commit or made detection less likely. See Faison, 426 So. 2d at 966
(holding movement from kitchen to bedroom by substantial force made rapes easier to
commit and reduced the danger of detection, even though only short distance involved);
State v. Key, 636 S.E.2d 816, 821 (N.C. Ct. App. 2006) (holding “removal of [victim] from
one room to another was not mere asportation, but sufficient evidence of a separate and
independent act”); State v. Scott, No. 88AP-346, 1988 WL 102010, at *9 (Ohio Ct. App.
Sept., 29, 1988) (finding dragging victim back to bedroom and slamming the door closed
prevented her escape and pushing her causing her to fall increased the risk of harm).
According to one commentator, “[m]ost courts try to avoid kidnapping convictions when
movement is within the same room, or from room to room within a home or office.”
Kanellis, 67 Iowa L. Rev. at 797 n.187.
33
disruption have been cited. As with the Iowa cases, most of these
authorities from other jurisdictions contain more florid fact patterns than
this case. 6
In the end, the question calls for an exercise of our judgment as to
whether, on the totality of the circumstances, the State offered sufficient
evidence that a jury could find beyond a reasonable doubt that the
defendant’s confinement of the victim substantially increased the risk of
harm, significantly lessened the risk of detection, or significantly
facilitated escape. Phrased somewhat differently, did the evidence of the
tossing of the cell phone, the locking of the doors, the covering of the
victim’s mouth, and any additional confinement associated with
movement of the victim from the hallway to the bedroom, all occurring
within the enclosed apartment, provide a sufficient basis to allow the jury
to regard the case as presenting more than sexual abuse but instead
involving the much more serious crime of kidnapping with its
substantially harsher penalties?
6In addition, there are cases in which the locking of a door to keep others out
has been cited, with mixed results. See, e.g., Lewis v. State, 50 So. 3d 86, 88 (Fla. Dist.
Ct. App. 2010); Gray v. State, 939 So. 2d 1095, 1096–97 (Fla. Dist. Ct. App. 2006) (per
curiam); Irizarry v. State, 905 So. 2d 160, 167 (Fla. Dist. Ct. App. 2005); State v.
Johnson, 646 S.E.2d 123, 126–27 (N.C. Ct. App. 2007); State v. Smith, No. W2012-
00259-CCA-R3-CD, 2013 WL 5938017, at *6, 10 (Tenn. Crim. App. Nov. 4, 2013). More
compelling from the State’s point of view, however, are cases in which the victim is
locked in. See, e.g., People v. Vines, 251 P.3d 943, 974 (Cal. 2011); Pitts v. State, 710
So. 2d 62, 62 (Fla. Dist. Ct. App. 1998) (per curiam); State v. Lykken, 484 N.W.2d 869,
878 (S.D. 1992).
There are also cases in which the disruption of telephone communications has
been cited. See, e.g., People v. Zamora, 803 P.2d 568, 570–71, 576 (Kan. 1990); People
v. Warren, 578 N.W.2d 692, 696 (Mich. Ct. App. 1998), reversed in part on other
grounds, 615 N.W.2d 691 (Mich. 2000); Key, 636 S.E.2d at 819–21; Chatman v.
Commonwealth, 739 S.E.2d 245, 251 (Va. Ct. App. 2013). Many of these fact patterns
are far more aggravated that the facts of this case.
34
We conclude that it does not. We note in particular the potential of
sliding downhill into situations in which a person with limited additional
criminal culpability suffers a dramatically increased penalty. In the
words of Yeager and Carlson, the underlying crime must be substantially
more heinous to give rise to a kidnapping conviction. Yeager & Carlson
at 66. We conclude that this heinous concept underlies the Rich
tripartite test with its attendant intensifiers. While there might be some
marginal increase in the risk of harm, lessening of detention, or
facilitation of escape, we conclude it is not sufficient to trigger
dramatically increased sanctions under our kidnapping statute in this
case.
D. Disposition. In light of our disposition of the kidnapping
charge, we now consider the disposition of this case. In order to
determine the appropriate course on remand, we examine the jury
instructions as law of the case in light of our holding on the kidnapping
charge. See State v. Murray, 796 N.W.2d 907, 910 (Iowa 2011) (noting
lesser included offense instruction became law of the case when
defendant failed to preserve error by objecting to instruction); State v.
Taggart, 430 N.W.2d 423, 425 (Iowa 1988) (“Failure to timely object to an
instruction not only waives the right to assert error on appeal, but also
the instruction, right or wrong, becomes the law of the case.” (Citation
and internal quotation marks omitted.)).
Because under the instructions, kidnapping in the first degree,
kidnapping in the third degree, and false imprisonment all had a
common confinement instruction, those charges must be dismissed for
lack of sufficient evidence. See State v. Snider, 479 N.W.2d 622, 623–24
(Iowa Ct. App. 1991) (noting the confinement element of false
35
imprisonment is defined by reference to the kidnapping statute and its
application as defined by both Rich and Misner).
With respect to the remaining charges of sexual abuse in the
second degree and sexual abuse in the third degree, the instructions told
the jury not to consider these offenses independently if it found Robinson
guilty of kidnapping. As a result, we do not have a specific jury verdict
on the jury verdict form for sexual abuse in the second degree or sexual
abuse in the third degree.
Nonetheless, the jury necessarily found that Robinson engaged in
sexual abuse in the third degree when it convicted him of kidnapping
because under the instructions the jury was required to find Robinson
had engaged in an act of sexual abuse to convict him of kidnapping in
the first degree. No claim on appeal has been made that the evidence
was insufficient to find that Robinson was guilty of sexual abuse in the
third degree.
We cannot determine, however, whether the jury found Robinson
guilty of sexual abuse in the second degree, which requires an additional
finding that during the commission of the sexual abuse, Robinson used
or threatened to use force creating a substantial risk of death or serious
injury to B.S. Compare Iowa Code § 709.3(1) (2011) (sexual abuse in the
second degree), with Iowa Code § 709.4(1) (sexual abuse in the third
degree). This element is not a prerequisite to a kidnaping in the first-
degree verdict.
In light of the record, we conclude the State may pursue one of two
options in this case on remand. The State has the option of standing on
the jury’s necessary determination that Robinson was guilty of sexual
abuse in the third degree and ask the court to enter judgment on that
offense and to sentence Robinson accordingly. In the alternative,
36
however, the State may on remand elect to retry Robinson on sexual
abuse in the second degree, an offense which the jury verdict in this case
was not required to decide.
IV. Barrier-Free Contact with Counsel.
We finally address the question of whether the defendant was
improperly denied his statutory or constitutional right to effective
assistance of counsel because of the existence of the Plexiglas barrier
separating the defendant from his attorney at the Dubuque County Jail.
While we have reversed Robinson’s conviction on other grounds, we
address the question related to access to barrier-free contact between
Robinson and his attorney in order to provide the district court and the
parties with guidance should the State elect to retry Robinson on
remand.
A. Procedural History.
1. Robinson’s motion. Prior to trial, Robinson filed a motion for
barrier-free contact between counsel and defendant. In order to
understand the precise scope of the issues before us, it is necessary to
engage in a detailed review of the proceedings below.
We begin with a review of the substance of Robinson’s motion. The
motion alleged that the visiting rooms at the jail imposed a Plexiglas
barrier between Robinson and his counsel, that meetings were video and
possibly audio recorded, and that conversations between Robinson and
his lawyer could be overheard by persons standing outside the door of
the visiting rooms. He contended the physical arrangements at the jail
violated Iowa Code section 804.20, which he stated affords arrestees the
right to consult with their attorney confidentially and alone and in
private. See State v. Walker, 804 N.W.2d 284, 289–90 (Iowa 2011). He
further contended the barrier and video recording violated his right to
37
counsel under the Sixth Amendment to the United States Constitution
and under article I, section 10 of the Iowa Constitution.
Robinson raised four specific challenges to the arrangement. First,
the motion alleged the Plexiglas barrier required the parties to yell in
order to be heard and that persons standing outside the room could
overhear what was being said. Second, the motion emphasized there was
no means for Robinson and his counsel to review documents together
other than either hold the documents up against the barrier one at a
time or have a jailer convey the documents. Third, the motion alleged
there was no means by which Robinson and his lawyer could review
video or audio recordings together. Fourth, Robinson stated he believed
the rooms were video recorded and that it was unknown whether they
were audio recorded. In two of the visiting rooms utilized by the jail,
however, the motion alleged that jailers had a clear view of meetings
between Robinson and his attorney.
The allegations in Robinson’s motion concluded by noting that
there had been no showing that Robinson had been violent or disruptive
at the jail. In his prayer for relief, Robinson requested an order requiring
the Dubuque County Sheriff to provide a “barrier-free room that is free of
video and/or audio recording devices and in which the conversations
between the undersigned and the Defendant may not be observed.”
2. Hearing before the district court. The district court held a
hearing on the motion. Robinson presented no evidence, but counsel
made a statement to the court. The State offered evidence from Thomas
Fitzpatrick, a Dubuque County deputy sheriff and assistant jail
administrator for the Dubuque County Jail. A CD of photographs of the
visiting room facilities was admitted into evidence.
38
In support of the motion, Robinson’s counsel began by advising the
court that the staff at the jail were very professional, but all of the
visiting rooms have a Plexiglas barrier and none have a pass-through
arrangement. Further, counsel asserted he had to yell to communicate
with his client. Counsel told the court:
Because there’s no pass-through and because we’re literally
yelling through a hole in the wall or through another barrier,
anyone standing outside of any one of those rooms, either
surreptitiously or walking past, can hear the conversation,
because both Mr. Robinson and I have to raise our voices.
And that’s the issue that I have . . . . We’re trying to have
confidential conversations, and I’m having to talk louder
than I’m addressing the Court right now.
With respect to the passing of documents, Robinson’s counsel
further noted that in one of the meeting rooms there is only a small
“metal shelf, maybe 14 to 16 inches long, maybe eight inches wide.”
Robinson’s lawyer argued that the physical arrangement did not allow
him to go over documents, noting, “[W]e’ve got a lot of police reports to go
over, things like that.”
Robinson’s counsel cited Walker, 804 N.W.2d at 289–95, for the
proposition that he was entitled to barrier-free contact with his counsel
under Iowa Code section 804.20 unless the State could show some
specific individualized suspicion or a threat to safety or security.
Robinson’s counsel also cited People v. Parsons, 15 P.3d 799, 804–05
(Colo. Ct. App. 2000), for the propositions that there should be a pass-
through available, no video camera surveillance should be allowed, and
attorneys and clients should be able to converse in a normal tone of
voice. Counsel noted the Parsons court emphasized this set-up was
necessary so that attorney–client meetings “cannot be overheard by those
who are outside the room, but who may be in the immediate area.” Id. at
39
804. Robinson emphasized he had a clear constitutional right to discuss
the case with his attorney in a normal tone of voice, unobserved by other
persons.
The State offered the testimony of Thomas Fitzpatrick. Fitzpatrick
described the visiting rooms at the Dubuque County Jail. With respect
to video surveillance, Fitzpatrick testified there were cameras located
outside the door of each visiting room, but when the door was closed, as
it ordinarily was in an attorney–client meeting, the video cameras would
be shut off from recording activities within the room. Fitzpatrick
minimized the sound issues, noting that if someone raised his voice, that
might get attention. Fitzpatrick explained that no jail staff is stationed
outside the doors of the visiting rooms. Fitzpatrick further testified that
while the jail has allowed, on a case-by-case basis, attorneys and their
clients to meet in a barrier-free room to go over documents, they have
never allowed a barrier-free visiting room “carte blanche.” While
Fitzpatrick conceded he had no knowledge of Robinson having any
discipline issues or issues of violence in the jail, he testified he trusted
no one and he would not be able to provide appropriate security for all
inmates in every case if barrier-free contact with counsel was the norm.
The State argued there was no need to provide barrier-free contact
with counsel absent a specific showing of need. The State distinguished
Walker, noting in that case there was a very specific need for the attorney
to have barrier-free contact and here no such immediate need is present.
In response, Robinson’s counsel stated:
He and I need to be able to communicate to prepare for trial.
I agree with [the State] again the cases don’t
necessarily allow for—that they don’t talk about the same
contact that Mr. Robinson and I would have sitting here.
Robinson’s counsel then made a specific point:
40
But there’s no pass-through at all. I don’t know for sure,
but I think that even some sort of pass-through so that he
and I can examine documents, examine videos, listen to
audio in this case as we prepare his defense is what respects
his constitutional right.
....
I think that under the facts of this case, we do need
barrier-free contact or at least some way to pass-through so
that Mr. Robinson and I can communicate so that his
constitutional rights are protected.
3. Ruling of the district court. After the hearing and the district
court judge’s inspection of the jail facilities, the district court entered an
order on the motion. As to the facts, the district court found that none of
the rooms were monitored through electronic surveillance. The district
court further found that “people talking in a normal voice can hear each
other through the sound grates [in the visiting rooms], although the
sound is somewhat muffled.” Further, the district court found that while
a guard positioned directly outside the doors would be able to overhear
portions of the discussions, no staff are stationed outside the room, but
instead are in a control room where they cannot hear anything other
than screaming. The court further found, as conceded by the parties,
there was no pass-through in any of the visiting rooms.
On legal issues, the district court found that our holding in
Walker, 804 N.W.2d at 292, an OWI case, was fact-specific in that the
attorney needed immediate, barrier-free access to his client in order to
smell his breath and have him perform sobriety tests so the attorney
could properly advise him as to whether to submit to a breath test. The
district court dropped a footnote questioning, but not deciding, whether
Iowa Code section 804.20 applied in this case or only related to
communications at the time of initial detention. The district court held
41
that Iowa Code section 804.20 did not require “barrier free access to his
attorney for every visit, regardless of purpose.”
The district court did note that barrier-free contact may be
warranted under Iowa Code section 804.20 “for specific purposes such as
those cited by defense counsel—i.e. physical demonstrations and
reviewing audio and video recordings together.” The district court
ordered that if those situations were to arise, Robinson would be entitled
to barrier-free accommodations, and if the jail refused, Robinson could
file a motion with the court outlining the need for such accommodation.
At that point, the burden would shift to the State to make a showing of
“case-specific, individualized suspicion in order to prohibit barrier-free
contact.”
The district court recognized that Robinson had raised
constitutional as well as statutory claims. With respect to constitutional
claims, the district court held that barrier-free access to counsel “to this
point” had not violated Robinson’s right to counsel under the United
States or Iowa Constitutions.
The district court order thus established a framework under which
Robinson could seek barrier-free contact with his counsel upon a
showing of specific needs as asserted by his lawyer in his motion and at
the hearing, but denied barrier-free contact “for every meeting, regardless
of purpose.”
B. Positions of the Parties on Appeal. On appeal, Robinson’s
counsel reviews the evidentiary record establishing that the visiting
rooms have a Plexiglas barrier and no pass-through for documents. His
appellate brief summarizes the conflicting views regarding whether an
attorney has to yell to communicate with a client in the visiting rooms.
The appellate brief also surveys the evidence regarding security cameras
42
located in the hallways and the intercom system that allows staff in the
control room to communicate with lawyers in the visiting room.
Robinson does not, however, directly challenge the factual findings
of the district court. Robinson does not claim, for instance, that the
district court erred in finding that an attorney could communicate with
his client in the visiting rooms in a normal tone of voice, although the
sound was somewhat muffled. Robinson further did not challenge the
factual finding that although a jail staff standing directly outside the
door might overhear portions of a conversation, jail staff were assigned to
the control room and were not stationed in a position to overhear
attorney–client conversations. Finally, on appeal Robinson did not
challenge the assertion that there was no video surveillance of the rooms
when the doors were closed. As a result, on appeal, we do not question
the undisputed fact-finding of the district court.
Robinson raises two theories on appeal. First, Robinson relies on
Walker for the proposition that under Iowa Code section 804.20 and
under the right-to-counsel provisions of the Iowa and United States
Constitutions, a lawyer is always entitled to barrier-free access with his
or her client absent an individualized showing of a threat of violence or a
threat to institutional security. Second, Robinson argues that barrier-
free contact with counsel is necessary to allow the attorney and the
accused to develop a relationship of trust and confidence.
The State contends on appeal, among other things, that Iowa Code
section 804.20 is not implicated in this case, as it applies only to
situations in which a defendant is in custody but has not yet been
charged with a crime. More narrowly, the State asserts that even if
section 804.20 applies, under Walker there must be a specific showing of
need in order for the defendant to be entitled to barrier-free contact with
43
counsel. On the constitutional issues, the State argues that caselaw
subsequent to the federal cases cited in Walker indicate there is no “carte
blanche” right to barrier-free contact with counsel. Finally, the State
generally argues that before we reverse a criminal conviction on grounds
of lack of barrier-free contact with counsel, the defendant must show
that he or she has been prejudiced by the denial of his or her right to
counsel. According to the State, Robinson simply cannot make that
showing.
C. Analysis. On appeal, Robinson argues that he has a broad
right to barrier-free contact with counsel under Iowa Code section
804.20. We do not agree. While there is language in Iowa Code section
804.20 that seems to suggest a broad application (“any person arrested
or restrained of the person’s liberty for any reason whatever”), the statute
also emphasizes that the right to call family or consult counsel should
occur “without unnecessary delay after arrival at the place of detention.”
Further, the statute must be interpreted in context. See Andover
Volunteer Fire Dep’t v. Grinnell Mut. Reins. Co., 787 N.W.2d 75, 82 (Iowa
2010) (noting the “context of a statute is an important consideration in
the search for legislative intent”). Iowa Code chapter 804 generally deals
with the commencement of criminal actions and arrests. The chapter
contains a wide array of provisions dealing with arrests, including arrest
by warrant, arrest by peace officers, arrest by federal law enforcement
officers, arrests by out-of-state peace officers, etc. See Iowa Code
§§ 804.1, .7, .7A, .7B. The title of Iowa Code section 804.20 is
“Communications by arrested persons.” The next provision deals with
initial appearances before a magistrate. See id. § 804.21. In context, we
conclude Iowa Code section 804.20 applies to the period after arrest but
44
prior to the formal commencement of criminal charges. As a result,
Robinson is not entitled to any relief on this statutory ground.
That leaves Robinson’s constitutional claim on appeal, namely that
barrier-free contact with counsel is required in order to ensure a
“relationship and a level of trust and comfort.” See Adams v. Carlson,
488 F.2d 619, 630 (7th Cir. 1973) (noting the difficulty of attorneys and
clients establishing a relationship “behind glass”). This claim, however,
was not made before the district court. Instead, as seen above, at the
district court Robinson focused on issues upon which he either prevailed
before the district court (namely, the right to barrier-free contact with
counsel to review documents or review video or audio recordings) or
which have not been raised on appeal (video surveillance, overhearing
attorney–client conferences through audio or other means). In short,
Robinson largely prevailed on the issues presented below and did not
raise the trust-and-comfort issue now asserted on appeal.
As a result, we conclude Robinson has not preserved any claim
under the United States or Iowa Constitutions that he is entitled to
barrier-free contact with his attorney in order to develop a relationship of
trust and comfort. See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa
2002) (“It is a fundamental doctrine of appellate review that issues must
ordinarily be both raised and decided by the district court before we will
decide them on appeal.”). Because the issue raised by Robinson in this
appeal has not been preserved, he is not entitled to relief.
V. Conclusion.
For the above reasons, the decision of the court of appeals is
vacated in part and the judgment of the district court is reversed and the
case remanded for proceedings consistent with this opinion.
45
DECISION OF COURT OF APPEALS AFFIRMED IN PART AND
VACATED IN PART; DISTRICT COURT JUDGMENT REVERSED AND
CASE REMANDED.
All justices concur except Wiggins, J., who concurs specially.
46
#12–1323, State v. Robinson
WIGGINS, Justice (concurring specially).
I concur wholeheartedly with the majority opinion. I write
separately because the district court’s confinement instruction
constituted reversible error. Jury instruction number 23 on confinement
provided in relevant part:
No minimum time of confinement or distance of
removal is required. It must be more than slight. The
confinement must have significance apart from the sexual
abuse.
In determining whether confinement exists, you may
consider whether:
1. The risk of harm to [B.S.] was increased.
2. The risk of detection was reduced.
3. Escape was made easier. 7
The defendant’s counsel did not object to the instruction at trial.
The defendant in his pro se brief contends, among other things, he
received ineffective assistance of counsel because his counsel did not
object to the instruction that failed to include the intensifiers for the
three factors mentioned in State v. Rich, 305 N.W.2d 739, 745 (Iowa
1981). Although the defendant’s pro se brief does not mention whether
he is proceeding under the Iowa or the United States Constitution, I
consider both claims preserved under the circumstances. 8
The defendant asserts although the jury instruction required the
jury to find the confinement in the case had significance beyond the
7Jury instruction number 23 was adopted from Iowa State Bar Association
(ISBA), Iowa Criminal Jury Instruction 1000.5 (2012).
8The proper treatment of such claims is discussed in State v. Halverson, 857
N.W.2d 632, 635 (Iowa 2015).
47
underlying sexual assault, the three-factor Rich test was included
without its intensifiers. Specifically, in order to support a kidnapping
conviction, the confinement must “substantially increase[] the risk of
harm . . . , significantly lessen[] the risk of detection, or significantly
facilitate[] escape.” Id. at 745 (emphasis added). By failing to include
this language, the defendant argues, a jury could conclude the
requirement that confinement be significant beyond the underlying
sexual assault is supported by any increase in the risk of harm,
lessening of the risk of detection, or facilitation of escape, however slight.
I. Iowa Precedents.
We have never approved the instruction given in this case. In State
v. Hardin, the jury instruction stated:
“One of the essential elements which the State is
required to prove beyond a reasonable doubt in either
kidnapping in the first degree or kidnapping in the third
degree or false imprisonment is that [the victim] was
confined or removed.
In that regard, you are instructed that this requires
more than confinement or removal that is inherent within
the commission of the offense of sexual abuse.
A person is ‘confined’ when that person’s freedom to
move about is substantially restricted by force, threat, or
deception. The person may be confined either in the place
where the restriction commences or in a place to which the
person has been removed.
Although no minimal period of confinement or
distance of removal is required, such must exceed that
which is normally incidental or dependent upon the
commission of a sexual abuse and must be more than slight,
inconsequential, or as an incident inherent in the offense of
sexual abuse so that the confinement or removal has a
significance separate and apart from a sexual abuse.
Such confinement or removal may exist because it
substantially increases the risk of harm to the victim or
significantly lessens the risk of detection.”
48
359 N.W.2d 185, 189–90 (Iowa 1984) (alteration in original). The
instruction generally conformed to the Rich tripartite test. See id.
In State v. Doughty, we quoted at length from Rich, concluding an
instruction that did not outline the Rich tripartite test was flawed and
required a new trial under the circumstances. 359 N.W.2d 439, 440–42
(Iowa 1984). We noted that the instruction failed to indicate “the removal
or confinement necessary for first-degree kidnapping.” Id. at 441.
Our next case involving proper instructions in the context of a
kidnapping charge when there was an underlying felony was State v.
Misner, 410 N.W.2d 216, 221–22 (Iowa 1987). In Misner, we stated that
Rich “delineated the standards by which a jury could determine whether
the evidence demonstrated a confinement or removal sufficient to
support a charge of kidnapping.” Id. at 222.
We then declared the standards by which a jury could determine
whether the evidence supported a kidnapping charge:
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.
49
Id. We reaffirmed that “[t]hese standards are unquestionably the law in
Iowa today with respect to cases involving a kidnapping charge generated
out of a sexual abuse charge.” Id.
In State v. Hatter, we laid out in detail the instruction given by the
district court. 414 N.W.2d 333, 336 (Iowa 1987). It provided:
“One of the essential elements of Kidnapping which
the State must prove beyond a reasonable doubt is that (the
victim) was confined or removed or both. This requires more
than the confinement or removal that is inherent within the
commission of the offense of sexual abuse, as it is alleged to
have occurred in this case.
Although no minimal period of confinement or
distance of removal is required, it must exceed that which is
incidental or dependent upon the commission of any sexual
abuse and must be more than slight, inconsequential or as
an incident inherent to any sexual abuse so that the
confinement or removal or both has a significance separate
and apart from any sexual abuse.
Such confinement or removal or both may exist
because it substantially increases the risk of harm to the
victim or significantly lessens the risk of detection or
significantly facilitates escape. However, it is for you, the
jury, after a full and impartial consideration of the evidence
admitted during the trial, to determine whether there is
confinement or removal or both as defined herein.”
Id.
Finally, in State v. McGrew, we stated, “[A] jury question was
presented on whether this type of confinement significantly increased
[the victim’s] risk of further harm.” 515 N.W.2d 36, 40 (Iowa 1994). We
further noted “a rational factfinder could find that the risk of detection of
the sexual abuse crime was significantly lessened as well as that the risk
of harm was substantially increased.” Id. Clearly, the fact issue for the
jury in McGrew was whether the evidence met the Rich tripartite test.
See id.
50
The Iowa Court of Appeals, however, declined to reverse a
kidnapping conviction when the Iowa State Bar Association (ISBA)
kidnapping instruction was given in State v. Ripperger, 514 N.W.2d 740,
750–51 (Iowa Ct. App. 1994). In that case, the court of appeals simply
stated the “instruction appropriately conveyed the law,” and the court
was reluctant to disapprove “ ‘Uniform Instructions.’ ” Id. (quoting State
v. Doss, 355 N.W.2d 874, 881 (Iowa 1984)).
We do not preapprove or give a presumption of correctness to the
instructions published by the ISBA. I understand the ISBA committee
appointed to formulate these instructions is industrious and does its
best to get the law right. However, we can never delegate the formulation
of the law to the instruction committee. This is not only my view, but
also a view held by the United States Court of Appeals for the Eighth
Circuit. See United States v. Jones, 23 F.3d 1407, 1409 (8th Cir. 1994)
(explaining the Eighth Circuit’s model instructions are suggestions not
binding on lower courts); United States v. Norton, 846 F.2d 521, 525 (8th
Cir. 1988) (same); United States v. Ridinger, 805 F.2d 818, 821 (8th Cir.
1986) (same).
Typically district courts in the Eighth Circuit derive their criminal
jury instructions from the Manual of Model Criminal Jury Instructions
for the District Courts of the Eighth Circuit. See generally Judicial
Comm. on Model Jury Instructions for the Eighth Circuit, Manual of
Model Criminal Jury Instructions for the District Courts of the Eighth
Circuit (2014). The committee prepares the instructions. See id. The
process in the Eighth Circuit is similar to the process in Iowa.
Commenting on these instructions in one opinion, the Eighth
Circuit has taken the view that it has not preapproved these instructions
and it needs to look at the instructions on a case-by-case basis.
51
Ridinger, 805 F.2d at 821. In another opinion, the Eighth Circuit aptly
noted “[t]he Model Instructions, . . . are not binding on the district courts
of this circuit, but are merely helpful suggestions to assist the district
courts.” Norton, 846 F.2d at 525. The Eighth Circuit reaffirmed this
view in Jones, 23 F.3d at 1409.
Accordingly, we are required to scrutinize the ISBA’s instructions
and will not hesitate to disapprove faulty jury instructions. See, e.g.,
State v. Beets, 528 N.W.2d 521, 523 (Iowa 1995) (finding a uniform
instruction regarding the offense of assault with intent to commit sexual
abuse was not a correct statement of the law); State v. McKettrick, 480
N.W.2d 52, 58 (Iowa 1992) (concluding uniform criminal jury
instructions did not correctly state elements of assault causing bodily
injury); State v. Deanda, 218 N.W.2d 649, 650–51 (Iowa 1974) (holding
uniform instruction given on entrapment was erroneous as, among other
things, it “ignore[d] the factual evaluation to be undertaken on a case by
case basis” and “fail[ed] to focus on the crucial question” involved in the
case), overruled on other grounds by State v. Monroe, 236 N.W.2d 24, 33
(Iowa 1975).
The jury instruction given in this case is inconsistent with our
holding in this case—that the defendant’s confinement of the victim must
have substantially increased the risk of harm, significantly lessened the
risk of detection, or significantly facilitated the risk of escape. Thus, the
instruction as given unduly waters down our approach to kidnapping
when there is an underlying criminal offense.
Although the instruction accurately indicates the confinement
must be significant apart from the sexual abuse, it does not clearly state
the Rich tripartite test. The risk of harm beyond sexual abuse must be
substantial, and the decreased risk of detection or facilitation of escape
52
must be significant in order to support a kidnapping conviction. The
purpose of these intensifiers is to prevent the swallowing up of the crime
of sexual abuse by the much more serious crime of kidnapping.
Compare Iowa Code § 709.3(2) (2011) (defining second-degree sexual
abuse), and id. §§ 902.9(1)(b), .12(3) (explaining second-degree sexual
abuse carries a maximum sentence of no more than twenty-five years,
with a seventy percent mandatory minimum), with id. § 902.1(1)
(explaining first-degree kidnapping is a class “A” felony, carrying with it a
sentence of life imprisonment).
As indicated above, virtually all of our kidnapping cases have
included these important words, describing the proper standard in
evaluating the evidence in kidnapping cases involving underlying crimes.
See, e.g., Hatter, 414 N.W.2d at 335–36; Misner, 410 N.W.2d at 222;
Hardin, 359 N.W.2d at 190 (“We reaffirm the holding and language of
Rich.”); see also, e.g., Holmes v. State, 775 N.W.2d 733, 736–37 (Iowa Ct.
App. 2009) (stating the Rich tripartite test); State v. Ledezma, 549 N.W.2d
307, 311 (Iowa Ct. App. 1996) (same); cf. State v. Griffin, 564 N.W.2d
370, 373 (Iowa 1997) (reiterating the policy behind the incidental rule
and noting the “legislature did not intend to afford prosecutors the option
of bootstrapping convictions for kidnapping, carrying life sentences, onto
charges for crimes for which the legislature provides much less severe
penalties” (internal quotation marks omitted)).
Under the instruction given by the court in this case, however, a
jury could have concluded a relatively slight increase in the risk of harm
or relatively slight decrease in the risk of detection or ease of escape was
sufficient to support a kidnapping conviction. Cf. Doughty, 359 N.W.2d
at 441 (noting that “[w]hile the jury could well have found that the
removal and confinement were not merely incident to the sexual abuse,
53
we cannot say it would be compelled to reach that conclusion” based on
a faulty jury instruction that did not incorporate the Rich tripartite test).
Thus, I think the instruction in the present case, if not inaccurate, was
at least confusing. See Burkhalter v. Burkhalter, 841 N.W.2d 93, 97
(Iowa 2013) (“When the challenged instruction is conflicting and
confusing, error is presumed prejudicial and reversal is required.”
(Internal quotation marks omitted.)); see also Diversified Mgmt., Inc. v.
Denver Post, Inc., 653 P.2d 1103, 1110 (Colo. 1982) (en banc) (noting
“even accurate statements of the law should not be used in jury
instructions if they are misleading” and “it is error to include statements
of the law without instructing the jury on how to apply them”).
Confusing instructions are especially problematic in a factually close
case, as is the situation here. See People v. James, 241 Cal. Rptr. 691,
700–01 (Ct. App. 1987) (finding a confusing instruction harmless and
noting it was “significant this [was] not a close case”); Preston v. State,
647 S.E.2d 260, 263 (Ga. 2007) (noting a particular instruction should
not be given in the future, as it “could have the possibility of being
confusing in a close case”); see also United States v. Wisecarver, 598 F.3d
982, 989–90 (8th Cir. 2010) (holding confusing jury instruction given in a
close case seriously affected the fairness and integrity of the trial); United
States v. Easley, 942 F.2d 405, 411–12 (6th Cir. 1991) (reversing and
remanding for a new trial in a close case because the district court erred
by giving an instruction that had the possibility of causing considerable
jury confusion).
II. Ineffective Assistance Analysis.
The pro se defendant does not suggest an approach to evaluating
effectiveness of counsel other than that announced in Strickland v.
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674,
54
693 (1984), and I therefore apply that standard in this case. On the first
prong, I think competent counsel should have recognized the instruction
missed an important part of our law regarding kidnapping. See id. Even
a cursory review of our caselaw would have revealed we repeatedly
emphasized the risk of harm must be substantial and the lessened
detection and ease of escape must be significant. Read in the full context
of our cases, the court of appeals decision in Ripperger is doubtful
precedent, particularly in light of McGrew, an Iowa Supreme Court case
decided the same year which relied heavily upon Rich. See McGrew, 515
N.W.2d at 39 (citing the Rich tripartite test, and noting that since Rich we
have adhered to its analysis regarding application of the incidental rule);
Ripperger, 514 N.W.2d at 750–51.
I think it is apparent that a challenge to the instruction,
particularly in a case where the evidence supporting confinement in
excess of that incidental to sexual abuse was thin, a challenge to a jury
instruction as not conforming with Rich and its clear progeny applying
the tripartite test was a claim worth raising. See State v. Schoelerman,
315 N.W.2d 67, 72 (Iowa 1982) (finding nothing would have stopped an
attorney from raising an issue if the attorney would have consulted the
law in other jurisdictions when none existed in Iowa); see also State v.
Ross, 845 N.W.2d 692, 698 (Iowa 2014) (recognizing failure to preserve
error by objecting to an inaccurate jury instruction breaches an
attorney’s duty); State v. Ondayog, 722 N.W.2d 778, 785 (Iowa 2006)
(“[F]ailure to recognize an erroneous [jury] instruction and preserve error
breaches an essential duty.”). We have cited, with approval, a treatise
that declares that in order to be effective, counsel must “diligently
devote[] him or herself to scholarly study of the governing legal
principles.” State v. Vance, 790 N.W.2d 775, 786 (Iowa 2010) (internal
55
quotation marks omitted). Such a study would have revealed the
inconsistency between the approved instruction in Ripperger and our
caselaw.
I further conclude the faulty instruction prejudiced the defendant.
Our precedents emphasize that while in some cases the evidence clearly
establishes the prerequisites for kidnapping independent of the
underlying crimes and in others, the evidence is clearly lacking, the
cases in the middle category between these extremes are cases for the
jury to decide. In making the necessary determination, it is axiomatic
the court properly instruct the jury. In a factually close case such as
this, the failure of the district court to give a completely accurate
instruction under the Rich tripartite test undermines my confidence in
the verdict.
Further, I think trial courts should reformulate the ISBA’s
instruction to conform with the holding in this case and include the
concept that the defendant’s confinement of the victim substantially
increased the risk of harm, significantly lessened the risk of detection, or
significantly facilitated the risk of escape to avoid reversible error.