State Of Iowa Vs. Charlotte Hutchison, Frank Cordaro, Josh Plank, Rita Hohenshell, And Edward Bloomer ( 2006 )

IN THE SUPREME COURT OF IOWA
No. 97 / 05-0561
Filed September 22, 2006
STATE OF IOWA,
Appellee,
vs.
CHARLOTTE HUTCHISON, FRANK CORDARO,
JOSH PLANK, RITA HOHENSHELL, and EDWARD BLOOMER,
Appellants.
Appeal from the Iowa District Court for Polk County, Michael D.
Huppert, Judge.
Defendants appeal their convictions for trespass. AFFIRMED.
Sally Frank, Des Moines, for appellants.
Thomas J. Miller, Attorney General, Darrel L. Mullins, Assistant
Attorney General, John P. Sarcone, County Attorney, and Justin Allen,
Assistant County Attorney, for appellee.
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TERNUS, Justice.
Appellants, Charlotte Hutchison, Frank Cordaro, Josh Plank, Rita
Hohenshell, and Edward Bloomer, appeal their convictions for simple
misdemeanor trespass. These convictions arose from the defendants’
participation in a protest near N.W. 78th Avenue in Polk County in the
vicinity of the STARC Armory. The defendants were arrested when they
crossed a painted line within the boundary of land leased to the State of
Iowa Army National Guard by the United States Army Corps of Engineers.
Because this line was within the right of way for N.W. 78th Avenue, the
defendants claimed they were on public land and therefore could not be
charged with criminal trespass. The jury rejected this claim and convicted
the defendants. On appeal, the defendants assert there was insufficient
evidence to support the jury’s finding that they trespassed on private land.
Because we find the evidence adequate to support the jury’s verdict, we
affirm.
I. Background Facts and Proceedings.
Sometime before November 16, 2003, the Iowa Army National Guard
(“Guard”) became aware that demonstrators planned an anti-war protest on
property owned by the Army Corps of Engineers (“Corps”) across the road—
N.W. 78th Avenue—from a gate to the STARC Armory. Prior to the
anticipated demonstration, Lt. Col. Matthew Pitstick, chief training site
manager for the armory, used spray paint to mark the Guard’s property
line.
A lease introduced at trial showed the Guard had leased a parcel of
land in the Saylorville Lake Flood Control Project from the Corps in 1989 for
the purpose of constructing an armory. Included in the lease was a 2850
foot, federally owned strip of land called N.W. 78th Avenue, which
connected Corps property near the Saylorville Dam and the armory to N.W.
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Beaver Drive. Under the terms of the lease, this roadway—N.W. 78th
Avenue—was to be used for access to the Saylorville Lake Project, and the
Guard agreed to “assume total responsibility for the operation,
maintenance, repair and replacement” of the roadway, including
“maintain[ing] the road in good condition and . . . preserv[ing] a smooth
surface.” The agreement specifies that the right of way for N.W. 78th
Avenue extends fifty feet in each direction from the center of the roadway.
The paved road itself is twenty-two feet wide. The line spray-painted by Lt.
Col. Pitstick was forty-five feet from the center of the road.
On November 16, 2003, the defendants were members of a group that
peaceably assembled on the Corps property across from the armory. The
group was repeatedly informed by a Guard member that the Guard would
not allow a public gathering on its property, that the painted line
demarcated that property, and that crossing the line for such a gathering
would result in arrest. Notwithstanding these admonitions, following a
short statement, the defendants grasped hands and intentionally crossed
the painted line. As warned, they were arrested and charged with criminal
trespass, in violation of Iowa Code section 716.7(2)(b) (2003), a simple
misdemeanor.
The cases against the defendants proceeded to a joint jury trial. At
the conclusion of the State’s evidence, the defendants moved for a judgment
of acquittal, asserting the State had failed to establish the offense of
trespass. They cited an Iowa Code provision that states a trespass cannot
take place “upon the right-of-way of a public road or highway.” Iowa Code §
716.7(4). The court denied the motion, and after evidence from the
defendants, the case was submitted to the jury. The jury was instructed
that the State had to prove the defendants “entered upon the property of the
Iowa National Guard.” They were also told that “[t]he term ‘trespass’ does
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not mean the entering upon the right-of-way of a public road or highway.”
The jury returned verdicts finding each defendant guilty of simple
misdemeanor trespass. The defendants were sentenced to time served,
which amounted to one or two nights in jail for each defendant.
The defendants appealed their convictions to the district court. The
issue, the district court noted, was whether N.W. 78th Avenue was a “public
road” and therefore exempt from trespass. The defendants argued to the
court that N.W. 78th Avenue was a public road under the doctrines of
prescription or dedication. The court concluded the evidence was
insufficient to establish a public road under either theory and so affirmed
the jury’s verdicts.
This court granted the defendants’ petition for discretionary review.
In this appeal, the defendants contend the State failed to present sufficient
evidence that the roadway in question was a private road. They claim the
evidence established that the road became a public roadway under the
doctrines of prescription and dedication. 1
II. Scope and Standard of Review.
The defendants claim the trial court erred in refusing to grant their
motion for judgment of acquittal based on the insufficiency of the evidence.
See generally State v. Allen, 304 N.W.2d 203, 206 (Iowa 1981) (“A motion for
judgment of acquittal is a means for challenging the sufficiency of the
evidence to sustain a conviction . . . .”). “If the jury’s verdict is supported by
substantial evidence, it is binding on the court.” State v. Corsi, 686 N.W.2d
1The defendants also complain that the district court reviewing the jury
verdicts erroneously placed the burden of proof as to the status of the road on the
defendants. Even if the defendants are correct, the supreme court’s review is
focused on the judgments of conviction entered by the trial court. There is no
claim made on appeal that the jury was incorrectly instructed as to the burden of
proof. Therefore, any error made by the district court sitting as a reviewing court
does not affect the validity of the jury’s verdict. Consequently, we do not consider
whether the reviewing court properly analyzed the issues presented to it.
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215, 218 (Iowa 2004). Therefore, our review is for correction of errors of
law. Id.
In determining the correctness of a ruling on a motion for judgment of
acquittal, we do not resolve conflicts in the evidence, pass upon the
credibility of witnesses, or weigh the evidence. See State v. Williams, 695
N.W.2d 23, 28 (Iowa 2005). “[S]uch matters are for the jury.” Id. Instead,
we ascertain whether the evidence “ ‘could convince a rational jury of the
defendant’s guilt beyond a reasonable doubt.’ ” Corsi, 686 N.W.2d at 218
(citation omitted). Evidence that raises only a suspicion or generates only
speculation is not substantial. Id. In evaluating the evidence, we consider
all the evidence in the record, and we view it in the light most favorable to
the jury’s verdict. Id.
III. Pertinent Statutes.
The statute the defendants were found guilty of violating states that
criminal trespass includes
[e]ntering . . . property without justification after being notified
or requested to abstain from entering . . . by the owner, lessee,
or person in lawful possession, or the agent or employee of the
owner, lessee, or person in lawful possession . . . .
Iowa Code § 716.7(2)(b). Of particular significance to the present case, the
statute further provides that “[t]he term ‘trespass’ does not mean the
entering upon the right-of-way of a public road or highway.” Id. § 716.7(4).
The trespass statute does not define “a public road or highway.”
However Iowa Code chapter 306, entitled “Establishment, Alteration, and
Vacation of Highways,” offers guidance on the definition of roads and public
road rights-of-way. See id. § 306.3 (stating listed definitions apply to
chapter 306 and “any chapter of the Code relating to highways”); see also
State v. Sims, 173 N.W.2d 127, 128 (Iowa 1969) (applying in criminal
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prosecution the predecessor definition of the terms now defined in section
306.3(8)). This statute provides the following definitions:
7. “Public road right-of-way” means an area of land, the
right of possession of which is secured or reserved by the state
or a governmental subdivision for roadway purposes. . . .
8. “Road” or “street” means the entire width between
property lines through private property or the designated width
through public property of every way or place of whatever
nature if any part of such way or place is open to the use of the
public, as a matter of right, for purposes of vehicular traffic.
Id. § 306.3(7), (8). Similarly, although not expressly applicable to the
trespass statute, chapter 321, entitled “Motor Vehicles and Law of the
Road,” contains a definition of “private road.” Id. § 321.1 (stating defined
words have specified meanings “for the purpose of this chapter”). This
provision states:
“Private road” or “driveway” means every way or place in private
ownership and used for vehicular travel by the owner and
those having express or implied permission from the owner but
not by other persons.
Id. § 321.1(54).
IV. Discussion.
The element of the State’s case challenged on appeal is the status of
N.W. 78th Avenue as a private road. We think the evidence, while in some
respects conflicting, was clearly sufficient to support the jury’s finding that
the road was private and not public.
A. Review of evidence. The lease between the Corps and the Guard
supported the State’s position that the road was owned by the Corps and
leased to the Guard. This document also showed the Guard, not the county
or state, was responsible for the maintenance of that portion of N.W. 78th
Avenue passing through the leased land. Lt. Col. Pitstick’s testimony
affirmed these facts. Pitstick testified the Guard assumed responsibility for
the road: the Guard filled potholes, cleared snow, removed road kill, and
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mowed the shoulders. He also testified the Guard has the authority to close
the road, and did so during the 1993 floods. Although the Guard provides
security on the roadway, it has entered into a 28E agreement with the Polk
County sheriff’s office for law enforcement on N.W. 78th Avenue.
The defendants rely on testimony of Teresa McDermott of the Polk
County auditor’s office, who testified N.W. 78th Avenue is designated on an
aerial map in their office as a “right of way which is the public access or the
easement.” She also testified, however, that N.W. 78th Avenue could be a
private road, and she is aware that some private roads provide public
access, in parks for example. In addition to McDermott’s testimony, there
was evidence that the use of N.W. 78th Avenue was not restricted and this
roadway was used by the public in general.
We think the record fully supports the jury’s finding. The State’s
evidence showed the road was owned by the Corps, leased, maintained and
controlled by the Guard, and used with the Guard’s implicit permission by
motorists seeking access to Saylorville Lake. See id. § 321.1(54) (defining
“[p]rivate road” as a way “in private ownership and used for vehicular travel
by the owner and those having express or implied permission from the
owner but not by other persons”). The same evidence negates that “the
right of possession” of the road was “secured or reserved by the state or a
governmental subdivision for roadway purposes.” See id. § 306.3(7)
(defining “[p]ublic road right-of-way” as “an area of land, the right of
possession of which is secured or reserved by the state or a governmental
subdivision for roadway purposes”).
The defendants claim, however, that the record established the road
in question was a public road by prescription and by dedication. Obviously,
the jury rejected these arguments when it found the defendants guilty.
Therefore, the question on appeal is whether the evidence established as a
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matter of law that N.W. 78th Avenue was a public roadway through
prescription or dedication, such that the trial court should have granted the
defendants’ motions for judgment of acquittal. See State v. Watkins, 659
N.W.2d 526, 535 (Iowa 2003).
B. Dedication. “ ‘Dedication’ is ‘the setting aside of land for a public
use.’ ” Sons of the Union Veterans of the Civil War v. Griswold Am. Legion
Post 508, 641 N.W.2d 729, 733 (Iowa 2002) (citation and emphasis omitted).
Dedication requires three elements: “(1) intent to dedicate, (2) dedication,
and (3) acceptance by the public or the party to whom the dedication is
made.” Id. at 734. We think the evidence does not mandate a finding of
these elements as a matter of law.
The evidence needed to establish dedication “ ‘may not be predicated
on anything short of deliberate, unequivocal, and decisive acts and
declarations of the owner, manifesting a positive and unmistakable
intention to permanently abandon his property to the specific public use.’ ”
Id. (citation omitted). Moreover, “ ‘mere permissive use of a way, no matter
how long continued, will not amount to a dedication.’ ” Id. (citation
omitted); accord Bradford v. Fultz, 167 Iowa 686, 698, 149 N.W. 925, 929
(1914) (“No length of use of a private road will make it a public highway.”).
In addition, “an intention to dedicate must have existed at the time of the
beginning of the use which is relied upon to show dedication.” Mahaska
State Bank v. Kelly, 520 N.W.2d 329, 331 (Iowa 1994).
The record is devoid of any evidence that the Guard or the Corps
intended to dedicate the road to the public when the road was first opened
for public use or at any time thereafter. At most, the evidence showed
permissive use by persons wanting access to the lake or a way around the
lake, a fact insufficient to support dedication. Although the defendants cite
McDermott’s testimony and the maps in the Polk County auditor’s office as
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showing a formal dedication, we think this evidence did not go far enough.
Although the witness and the county map confirmed that the roadway was
used for “public access,” this evidence left unanswered whether that use
was permissive or was the result of the owner’s intent to abandon the road.
Other evidence supplied that answer: the Corps, which owned the property,
expressly relinquished use and control of the property to the Guard, and the
Guard at all times retained control of the roadway, negating any intent to
abandon the road to the public. The record simply does not support a
finding that dedication was established as a matter of law.
C. Prescription. The defendants contend the public acquired N.W.
78th Avenue by prescription based upon the public’s use of the road for
more than ten years and the owner’s acquiescence in this use. An
easement by prescription “ ‘is similar to the concept of adverse possession.’
” Brede v. Koop, 706 N.W.2d 824, 828 (Iowa 2005) (citation omitted); see
also 3 Am. Jur. 2d Adverse Possession § 8, at 93-94 (2002) (stating the
principal difference between adverse possession and prescription is the
right acquired: full title to the property and an easement, respectively). It
“is created when a person uses another’s land under a claim of right or
color of title, openly, notoriously, continuously, and hostilely for ten years
or more.” Johnson v. Kaster, 637 N.W.2d 174, 178 (Iowa 2001).
The defendants’ position that the public obtained a prescriptive
easement in the road is unsound because no right of prescription may be
acquired against the government. See United States v. Osterlund, 505 F.
Supp. 165, 168 (D. Colo. 1981); Sioux City v. Betz, 232 Iowa 84, 85, 4
N.W.2d 872, 873 (1942); Twining v. City of Burlington, 68 Iowa 284, 285, 27
N.W. 243, 243 (1886); 3 Am. Jur. 2d Adverse Possession § 268, at 305-06
(“[T]itle to public lands cannot be acquired by adverse possession as against
the United States, a state, or local governmental bodies, except as may be
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provided specifically by statute.” (Footnotes omitted.)). This rule was
explained many years ago by the United States Supreme Court in a dispute
between the state of California and the federal government over rights to
certain offshore property:
And even assuming that Government agencies have been
negligent in failing to recognize or assert the claims of the
Government at an earlier date, the great interests of the
Government in this ocean area are not to be forfeited as a
result. The Government, which holds its interests here as
elsewhere in trust for all people, is not to be deprived of those
interests by the ordinary court rules designed particularly for
private disputes over individually owned pieces of property; and
officers who have no authority at all to dispose of Government
property cannot by their conduct cause the Government to lose
its valuable rights by their acquiescence, laches, or failure to
act.
United States v. California, 332 U.S. 19, 39-40, 67 S. Ct. 1658, 1669, 91 L.
Ed. 1889, 1900 (1947), superceded on other grounds by statute, Submerged
Lands Act of 1953, ch. 65, 67 Stat. 29, as recognized in James v. State, 950
P.2d. 1130, 1134 (Alaska 1997).
The lease admitted into evidence stated the road was a “federally
owned roadway.” There was no evidence that any other entity or person
owned the road in question. Therefore, as a matter of law, the defendants
cannot rely on the doctrine of prescription to establish that this federal land
had become a public road owned by the state or county.
V. Summary.
The evidence is sufficient to support the jury’s finding that the
defendants trespassed on private land when they stepped into the right-of-
way of N.W. 78th Avenue in front of the STARC Armory. The record also
supports a factual finding that this federally owned roadway is not a public
road. The public use permitted by the Corps and the Guard did not
establish a dedication of the road to the public, and the public cannot
obtain prescriptive rights to this road because it is owned by the federal
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government. Finding no error in the trial court’s refusal to enter judgments
of acquittal, we affirm.
AFFIRMED.