State of Iowa v. Randy Mitchell Copenhaver , 844 N.W.2d 442 ( 2014 )

IN THE SUPREME COURT OF IOWA
No. 11–1616
Filed March 21, 2014
STATE OF IOWA,
Appellee,
vs.
RANDY MITCHELL COPENHAVER,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Linn County, Sean W.
McPartland and Mitchell E. Turner, Judges.
A defendant seeks further review of a court of appeals decision
affirming his convictions for two separate robberies. DECISION OF
COURT OF APPEALS AND JUDGMENT OF DISTRICT COURT
AFFIRMED.
Mark C. Smith, State Appellate Defender, and David Arthur
Adams, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Mary A. Triick and Kevin R.
Cmelik, Assistant Attorneys General, and Gerald A. Vander Sanden,
County Attorney, for appellee.
2
WIGGINS, Justice.
The defendant entered a bank, approached two separate tellers,
and demanded each teller give him money from their cash drawers. The
State charged the defendant with two separate robberies, and the jury
found him guilty of the two robberies. The defendant appealed, claiming
that if a robbery took place, only one robbery occurred. He further
claimed substantial evidence did not support two robbery convictions.
He also raises additional matters in his pro se brief. We transferred the
case to the court of appeals. The court of appeals affirmed his
convictions. The defendant asked for further review, which we granted.
On further review, we agree with the court of appeals resolution of
the pro se issues and let its decision stand as our final decision on the
issues the defendant raised in his pro se brief. Additionally, we find
substantial evidence supports the defendant committed two separate and
distinct robberies. Therefore, we affirm the decision of the court of
appeals and the judgment of the district court.
I. Background Facts and Proceedings.
On February 11, 2010, a person entered the Community Savings
Bank branch office on Mount Vernon Road in Cedar Rapids. The person
was wearing a mask. There was only one teller on the teller line, Jamie
Kasmiskie. Another teller and two bank officers were also present in the
bank. The person approached Kasmiskie and passed her a note. The
note said, “this is a robbery” and “100’s, 50’s, and 20’s.” The person also
spoke to Kasmiskie, saying, “This is a robbery. Give me your money.”
The person further stated, “Don’t hit any buttons.”
Kasmiskie testified her first thought was not to panic. She testified
she did not know what was going to happen. Kasmiskie felt her
adrenaline pumping, her legs and hands were shaking, and after the
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incident she thought she might vomit. She did not feel the person was
aggressive towards her, nor did the person imply or threaten a weapon.
However, Kasmiskie feared some kind of physical contact if she did not
comply, because the person was leaning closer to her than any ordinary
customer would have been.
Kasmiskie testified she began handing the money to the person.
When Kasmiskie finished handing over the twenties, she waited to see if
the person was going to leave. The person indicated to her that she
should continue to hand over the money. Kasmiskie gave the suspect
“bait money” of one hundred dollars in twenties. Bait money is money
the bank is able to track because the bank has kept a record of the
money, such as the serial numbers on the bills.
Another teller, Sandra Ries, noticed Kasmiskie and the person and
went out to her window, which was next to Kasmiskie’s window. The
suspect then went to Ries’s window and demanded money from her. The
person said, “Give me your f_______ 50’s and 100’s,” and “I want all of
your 100’s and 50’s.” Ries indicated she did not have any more of those
bills in her drawer, and the person said, “Then, well, give me your 20’s
also.” Ries described the voice as very demanding in tone. She further
stated the person wore gloves and made a gesture like the person could
have a weapon. The person’s gloved hand touched Ries’s nose a couple
times.
Ries did not see a weapon, but did not know if the person had one.
She testified she was scared because the person could have had a hidden
weapon. Ries stated the suspect never threatened her, and the touching
of her nose did not appear to be intentional. Ries did not hand over any
bait money. The amount taken from the bank that day was $6852.
Copenhaver was subsequently apprehended.
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II. Proceedings.
On February 25, the State charged Copenhaver with two counts of
robbery in the second degree in violation of Iowa Code sections 711.1
(2009) and 711.3 and one count of theft in the second degree in violation
of Iowa Code sections 714.1 and 714.2. Copenhaver filed a motion for
adjudication of law points. Copenhaver argued the two counts of robbery
should have been charged as a single offense. The court denied the
motion. At trial, the jury found Copenhaver guilty on all three counts.
The trial court sentenced Copenhaver to two consecutive ten year terms
on each of the robbery charges and a concurrent five year term on the
theft charge.
Copenhaver filed a notice of appeal. We transferred the case to our
court of appeals. The court of appeals affirmed Copenhaver’s
convictions. We granted further review.
III. Issues.
Copenhaver’s counsel raised two issues in his brief: whether the
district court imposed an illegal sentence by failing to combine the two
convictions for robbery in the second degree into a single count, and
whether the district court erred in finding there was substantial evidence
for the jury to find Copenhaver committed assaults against each bank
teller. In his pro se brief, Copenhaver raised additional issues.
When deciding a case on further review, “we have the discretion to
review all or some of the issues raised on appeal.” State v. Clay, 824
N.W.2d 488, 494 (Iowa 2012). In exercising our discretion, we choose
only to review the issues raised by Copenhaver’s counsel in counsel’s
original brief. Accordingly, the court of appeals decision will be our final
decision on the issues Copenhaver raised in his pro se brief.
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IV. Whether the District Court Imposed an Illegal Sentence By
Failing to Combine the Two Convictions for Robbery in the Second
Degree into a Single Count.
Copenhaver frames this issue in his brief as an issue of merger.
He argues the failure to merge the two robbery convictions into one
offense violates the Double Jeopardy Clause of the United States
Constitution. 1 This argument is misplaced. The defendant in State v.
Ross made the same argument. 845 N.W.2d 692, 701 (Iowa 2014). We
have limited our merger doctrine to double jeopardy claims involving
lesser-included offenses. Id. Accordingly, we recognize Copenhaver as
using the word “merger” in his brief in its general definition of “[t]he act
or an instance of combining or uniting” to ask us to combine his
convictions. See Black’s Law Dictionary 1078 (9th ed. 2009).
An illegal sentence is a sentence that is not permitted by statute.
State v. Woody, 613 N.W.2d 215, 217 (Iowa 2000). If the legislature
criminalizes two separate and distinct acts, separate sentences on each
act are not illegal. State v. Jacobs, 607 N.W.2d 679, 688 (Iowa 2000).
Another way to ask what conduct the legislature criminalized is to ask
what unit of prosecution the legislature intended in enacting the statute.
Therefore, the first step in our analysis is to determine the legislature’s
intent for the unit of prosecution for Iowa Code section 711.1. See Ross,
845 N.W.2d at 702.
A. Unit of Prosecution for Robbery. Determining legislative
intent raises issues of statutory interpretation; thus, our review is for
correction of errors at law. State v. Allen, 708 N.W.2d 361, 365 (Iowa
2006).
The robbery statute in pertinent part provides:
1The Fifth Amendment to the United States Constitution provides in relevant
part, “nor shall any person be subject for the same offence to be twice put in jeopardy of
life or limb.” U.S. Const. amend. V.
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A person commits a robbery when, having the intent to
commit a theft, the person does any of the following acts to
assist or further the commission of the intended theft or the
person’s escape from the scene thereof with or without the
stolen property:
1. Commits an assault upon another.
2. Threatens another with or purposely puts another
in fear of immediate serious injury.
3. Threatens to commit immediately any forcible
felony.
Iowa Code § 711.1. Thus, the legislature has defined the unit of
prosecution for robbery based upon the actions of the defendant.
The first element relevant to the facts of this case requires the
defendant to have the intent to commit a theft. The Code defines theft as
“when the person . . . [t]akes possession or control of the property of
another, or property in the possession of another, with the intent to
deprive the other thereof.” Id. § 714.1. The second element of robbery
requires the defendant to do
any of the following acts to assist or further the commission
of the intended theft . . .:
1. Commit[] an assault upon another.
2. Threaten[] another with or purposely put[] another
in fear of immediate serious injury.
3. Threaten[] to commit immediately any forcible
felony.
Id. § 711.1 (emphasis added). If the State can prove these two elements
beyond a reasonable doubt, the defendant has committed the crime of
robbery.
The parties disagree on the proper interpretation of the word “any”
in the statute. Copenhaver argues the use of the word “any” in the
statute is plural and meeting any one or more of the three factors under
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Iowa Code section 711.1 constitutes only one offense; therefore, the
number of assaults is not determinative as to whether there is more than
one robbery. Copenhaver relies on State v. Kidd, 562 N.W.2d 764 (Iowa
1997). The State argues the use of the word “any” allows multiple
offenses because we previously interpreted the word “any” to allow
charges for multiple offenses in State v. Constable, 505 N.W.2d 473 (Iowa
1993).
In Kidd, the defendant possessed three sawed-off shotguns
bundled together in his home, and the State charged him with three
separate counts of unauthorized possession of an offensive weapon. 562
N.W.2d at 764–65. The relevant statute prohibited the knowing
“possess[ion of] an offensive weapon.” Id. at 765 (quoting Iowa Code
§ 724.3 (1995)). We analyzed the use of the word “an” in the statute and
determined the ordinary meaning referred to possession of a single
weapon. Id. Thus, we found the possession of each weapon to be a
separate offense. Id. at 765–66. In reaching this conclusion, we cited
United States v. Kinsley, 518 F.2d 665, 670 (8th Cir. 1975), to note that a
statute with the language “any firearm” only allowed the singular act of
possessing four firearms to be one offense. Id. at 766.
In Constable, the defendant argued the trial court violated his
double jeopardy rights by allowing sentencing of five counts under Iowa
Code section 709.3(2), sexual abuse in the second degree. 505 N.W.2d at
474. There were only two victims in Constable, but the State charged the
defendant with two counts for one victim and three counts for the other
victim. Id. at 475. The statute at issue required the person to commit
sexual abuse as defined in Iowa Code section 709.1. Id. (citing Iowa
Code § 709.3(2) (1991)). Section 709.1 defined sexual abuse as “any sex
act which (1) is done by force or against the will of one participant; (2) is
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performed with one participant who lacks ability to consent; or (3) is
performed with a child.” Constable, 505 N.W.2d at 477 (citing Iowa Code
§ 709.1). We determined any single physical contact was a separate act
sufficient to meet the definition of “sex act.” Id. at 477–78. Therefore,
when the defendant engaged in five distinct acts of physical contact, each
act alone was sufficient to charge the defendant with a count of sexual
abuse, and the State did not violate the defendant’s double jeopardy
protection. Id. at 478.
We think both Copenhaver’s and the State’s arguments are
relevant to this case. If a defendant intends to commit only one theft,
and the defendant does one or more of the following—commits an assault
upon another, threatens another with or purposely puts another in fear
of immediate serious injury, or threatens to commit immediately any
forcible felony—only one robbery has occurred. This is true even if the
defendant commits multiple assaults or a single assault on one person
and threatens other persons with or purposely puts another in fear of
immediate serious injury while intending to commit a single theft. We
find this to be the unit of prosecution for robbery.
We reach this conclusion because the legislature requires the
defendant to intend to commit a theft accompanied by any of the acts
listed in the statute. If the defendant intends to commit only one theft,
there can only be one robbery no matter how many assaults occur while
the defendant intends to commit the theft. Thus, the word “any” as used
in section 714.1 is consistent with the Kidd-Kinsley analysis we applied
in Kidd.
On the other hand, the Constable decision determined when
separate acts occurred under a criminal statute. There, we found the
legislature intended the unit of prosecution for sexual abuse under Iowa
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Code section 709.1 (1991) to be each act of physical conduct. Constable,
505 N.W.2d at 478. Thus, multiple acts can constitute separate and
distinct criminal offenses. Accordingly, if a defendant intends to commit
two separate and distinct thefts, and the defendant accompanies each
intended theft with one or more of the following—commits an assault
upon another, threatens another with or purposely puts another in fear
of immediate serious injury, or threatens to commit immediately any
forcible felony—the defendant has committed two separate robberies.
This result is consistent with Constable, where we determined the
legislative intent was to criminalize each act of physical conduct.
In summary, the unit of prosecution for robbery requires the
defendant to have the intent to commit a theft, coupled with any of the
following—commits an assault upon another, threatens another with or
purposely puts another in fear of immediate serious injury, or threatens
to commit immediately any forcible felony. Here, the State was required
to prove the defendant had the intent to commit two separate and
distinct thefts, with each theft accompanied by any of the actions
contained in Iowa Code section 711.1 (2009), to support two convictions
of robbery.
B. Whether the District Court Erred in Finding There Was
Substantial Evidence for the Jury to Find Copenhaver Had the
Intent to Commit Two Separate and Distinct Thefts. We review a
sufficiency-of-evidence claim for correction of errors at law. State v.
Thomas, 561 N.W.2d 37, 39 (Iowa 1997). The court considers all the
evidence presented at trial and views the evidence in the light most
favorable to the state. State v. Robinson, 288 N.W.2d 337, 340 (Iowa
1980); see also State v. Bower, 725 N.W.2d 435, 444 (Iowa 2006). The
verdict is supported by substantial evidence when the evidence could
10
convince a rational trier of fact the defendant is guilty beyond a
reasonable doubt. Bower, 725 N.W.2d at 444.
In Ross, we set forth the factors we consider to determine if
substantial evidence supports defendant’s conduct as separate and
distinct acts or one continuous act. 845 N.W.2d at 705. In Ross we
stated:
These factors are (1) the time interval occurring between the
successive actions of the defendant, (2) the place of the
actions, (3) the identity of the victims, (4) the existence of an
intervening act, (5) the similarity of defendant’s actions, and
(6) defendant’s intent at the time of his actions.
Id.
Applying these factors in this case, Copenhaver approached each
teller individually, leaving an interval of time between each act. He did
not stay in one place, but approached each teller at her window. Finally,
we note the intervening act of the second teller, Ries, coming to her
window after the first teller, Kasmiskie, gave Copenhaver money from her
cash drawer.
Copenhaver argues there was only one victim, the bank, so there
could only be one robbery. We do not agree with this argument. The
legislature defined theft as “when the person . . . [t]akes possession or
control of the property of another, or property in the possession of
another, with the intent to deprive the other thereof.” Iowa Code § 714.1.
Each teller had possession of a bank drawer. Thus, each teller had
possession of the property of the bank. When Copenhaver approached
each teller, he intended to take possession or control of the bank’s
property in the possession of each teller.
These factors cause us to conclude the record contains substantial
evidence Copenhaver had the intent to commit two separate and distinct
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thefts. 2 Therefore, we find Copenhaver had the intent to commit two
thefts as defined by the legislature. See People v. Scott, 200 P.3d 837,
841–43 (Cal. 2009) (finding the statutory language of “possession of
another” included constructive possession for the crime and thus, a
defendant could commit three robberies against three employees when
the three employees had constructive possession of the employer’s
money); People v. Borghesi, 66 P.3d 93, 103 (Colo. 2003) (deciding under
a statute that required the “presence of another,” two clerks had
sufficient control over the store property to support two robbery
convictions); Brown v. State, 430 So. 2d 446, 447 (Fla. 1983) (finding two
robberies when a defendant took money from two separate employees at
2Although Copenhaver did not argue the applicability of the single-larceny rule,
the single-larceny rule does not affect our result. Prior to the adoption of our present
criminal code, we recognized the single-larceny rule. State v. Sampson, 157 Iowa 257,
263, 138 N.W. 473, 475 (1912). The single-larceny rule provides the theft of property
belonging to two different persons at the same place and at the same time constitutes
one single larceny. Id. In 1976, the legislature adopted a new criminal code. Kermit L.
Dunahoo, The New Iowa Criminal Code, 29 Drake L. Rev. 237, 240 (1979–1980). In
adopting the new code, the legislature defined the crime of theft. 1976 Iowa Acts
ch. 1245, ch. 1, § 1401 (codified at Iowa Code § 714.1 (1979)). The legislature also
added the following language to our criminal law:
The value of property is its normal market or exchange value within the
community at the time that it is stolen. If money or property is stolen by
a series of acts from the same person or location, or from different
persons by a series of acts which occur in approximately the same
location or time period so that the thefts are attributable to a single
scheme, plan or conspiracy, such acts may be considered a single theft
and the value may be the total value of all the property stolen.
Id. § 1403 (codified at Iowa Code § 714.3 (1979)). Despite subsequent minor
amendments, Iowa Code section 714.3 remains substantially the same. See Iowa Code
§ 714.3 (2009). This change to the Code gives the state the discretion to charge a
defendant with multiple crimes in spite of the single-larceny rule. One commentator
has agreed that by the legislature’s enactment of this section, the supreme court
rejected the single-larceny rule. 4 Robert R. Rigg, Iowa Practice: Criminal Law § 11:46,
at 413 (2013). We rejected the single-larceny rule in State v. Chrisman, finding “ ‘the
prosecution is not required to accumulate thefts no matter how closely they may be
connected.’ ” 514 N.W.2d 57, 59 (Iowa 1994) (quoting 4 Ronald L. Carlson and John L.
Yeager, Criminal Law and Procedure § 324, at 99 (Supp. 1993)). Thus, the single-
larceny rule has no application to this case.
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two separate cash registers); Commonwealth v. Levia, 431 N.E.2d 928,
931 (Mass. 1982) (holding under a similar statute that when a defendant
took money from two separate employees the defendant committed two
crimes, though the money belonged to the business); Klein v. State, 784
P.2d 970, 973 (Nev. 1989) (per curiam) (determining there were two
robberies when defendant stole from two employees and one employee’s
testimony created a reasonable inference that both employees had joint
control and possession of all the money in the store).
We must next determine if there was substantial evidence for the
jury to find Copenhaver committed assaults against the bank tellers
while having the intent to commit two separate and distinct thefts.
C. Whether the District Court Erred in Finding There Was
Substantial Evidence for the Jury to Find Copenhaver Committed
Assaults Against Each Bank Teller. This issue involves a sufficiency-
of-evidence claim; therefore, we review it for correction of errors at law.
Thomas, 561 N.W.2d at 39. Copenhaver challenges the sufficiency of
evidence, claiming the evidence is not substantial to support he
committed an assault against either bank teller. He specifically claims
there is not substantial evidence to support an overt act against each
teller or that he had the requisite intent to commit an assault against
either teller.
Under the Code, the relevant act required for the crime of robbery
is that the defendant “does any of the following acts to assist or further
the commission of the intended theft” and one act is that the person
“[c]ommits an assault upon another.” Iowa Code § 711.1(1). The Code
defines an assault in relevant part as follows:
A person commits an assault when, without justification, the
person does any of the following:
13
....
2. Any act which is intended to place another in fear of
immediate physical contact which will be painful, injurious,
insulting, or offensive, coupled with the apparent ability to
execute the act.
Id. § 708.1(2). The jury considered assault under section 708.1(2) for
both of the robbery counts.
Copenhaver first argues there is not substantial evidence to
support he committed an overt act during the commission of each
robbery. “Assault requires an overt act.” State v. Heard, 636 N.W.2d
227, 230 (Iowa 2001). In a previous case, we determined we must look
at the defendant’s actions in context to determine whether the defendant
committed an overt act in furtherance of an assault. See id. at 230–31.
In Heard, we found a person committed an overt act when he disguised
his identity, went into the store in the early morning hours, demanded
money in close proximity to a lone store clerk, took the money, told the
clerk to lie down, and left the store. Id. at 228, 231.
Here, Copenhaver entered the bank wearing a mask and walked
very quickly towards the first teller, Kasmiskie. He gave her a note that
said, “this is a robbery” and demanded money from her. He also spoke
to Kasmiskie. He told her it was a robbery, instructed her to give him the
money, and told her not to hit any buttons. Kasmiskie testified
Copenhaver spoke to her forcefully and her legs started to shake. When
Copenhaver approached the second teller, Ries, Copenhaver spoke to her
in a demanding tone of voice and said, “Give me your f_______ 50’s and
100’s.” Copenhaver also gestured at her to give him the money and his
gloved hand touched her nose a couple times. These facts, in context,
constitute substantial evidence to support the jury’s finding of an overt
act supporting the commission of an assault for each charge of robbery.
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Next, Copenhaver argues substantial evidence does not support he
had the requisite intent to commit an assault for either robbery. Assault
under Iowa Code section 708.1(2) is a specific intent crime. State v.
Fountain, 786 N.W.2d 260, 264 (Iowa 2010). The specific intent required
under the statute is the intent “to place another in fear of immediate
physical contact which will be painful, injurious, insulting, or offensive.”
Iowa Code § 708.1(2). Therefore, Copenhaver must have intended to
cause each bank teller to fear immediate painful, injurious, insulting, or
offensive physical contact. We may infer intent from the defendant’s
actions and the circumstances of the transaction. State v. Keeton, 710
N.W.2d 531, 534 (Iowa 2006).
As to the first teller, Kasmiskie, we can infer from Copenhaver’s
actions of wearing a mask, walking quickly towards her, and speaking
forcefully to her that he had the specific intent to place Kasmiskie in fear
of immediate physical contact, which would be painful, injurious,
insulting, or offensive, coupled with the apparent ability to execute the
act. Factually, Copenhaver’s actions caused her legs to shake. We can
also infer he had the specific intent to place Ries in fear of immediate
physical contact, which would be painful, injurious, insulting, or
offensive, coupled with the apparent ability to execute the act because of
Copenhaver’s demanding voice together with his gestures and his gloved
hand touching her nose a couple times. Accordingly, the record contains
substantial evidence that could convince a rational trier of fact the
defendant met the specific-intent requirement to commit two assaults.
Thus, we find there is substantial evidence to support two robbery
convictions. Therefore, Copenhaver’s sentence was not illegal.
V. Disposition.
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We find substantial evidence supports Copenhaver’s two robbery
convictions. Additionally, we agree with the court of appeals in its
determination of Copenhaver’s pro se claims. Accordingly, we affirm the
decision of the court of appeals and affirm the judgment of the district
court.
DECISION OF COURT OF APPEALS AND JUDGMENT OF
DISTRICT COURT AFFIRMED.
All justices concur except Mansfield and Waterman, JJ., who
concur in part and dissent in part.
16
#11–1616, State v. Copenhaver
MANSFIELD, Justice (concurring in part and dissenting in part).
I agree with the majority’s overall approach, which involves parsing
the statutes to determine the unit of prosecution. However, when the
general assembly enacted our present criminal code, it was writing
against the background of the single-larceny rule. Apparently, it
intended to perpetuate that rule, or so we have indicated in prior cases.
When I apply that rule, I find only one theft or intended theft, and thus
only one robbery, despite the existence of two separate assaults. I
therefore would reverse the second robbery conviction.
As the majority notes, to determine the unit of prosecution, we first
need to examine the legislative definition of robbery. See Iowa Code
§ 711.1 (2009). When one reads that definition, the unit of prosecution
appears to be an intended theft coupled with one or more assaults. See
id. (“A person commits a robbery when, having the intent to commit a
theft, the person does any of the following acts to assist or further the
commission of the intended theft . . . .” (Emphasis added.)).
Copenhaver assaulted both tellers, so the question for me is
whether there was one intended theft or two. If two, he can be convicted
of two separate robberies. If there was only one intended theft, then only
one robbery can follow.
This leads me to the legislative definition of theft. See id.
§ 714.1(1). Again, I agree with the majority’s approach here. As noted by
the majority, a theft occurs when a person “[t]akes possession or control
of the property of another, or property in the possession of another, with
the intent to deprive the other thereof.” Id.
Under this somewhat imprecise legislative definition, one might
conclude that taking money from two bank tellers working in the same
17
room could be considered two different thefts, and hence two different
intended thefts. 3
However, we have applied the rule of lenity when the unit of
prosecution is ambiguous:
Where the language of a criminal statute leaves an ambiguity
with respect to the unit of prosecution, courts apply the rule
of lenity: in cases of ambiguity or doubt as to legislative
intent, only one offense may be charged.
State v. Kidd, 562 N.W.2d 764, 765 (Iowa 1997); see also State v.
Muhlenbruch, 728 N.W.2d 212, 216 (Iowa 2007) (“[T]his court has
recognized that strict construction of criminal statutes should be applied
in cases where there is doubt regarding the allowable unit of
prosecution.”). 4
More importantly, with theft, we have to deal with the historical
“single-larceny rule” in this state. Before the current definition of “theft”
3Of course, the State did not prosecute the case that way. It charged
Copenhaver with only a single theft from the bank and argued there were two robberies
because there were two assaults. The majority properly rejects the notion that the unit
of prosecution is the number of assaults, rather than the number of intended thefts.
4In State v. Velez, which I joined, we took the position that the lengthy
discussion of the “rule of lenity” in State v. Hearn had overruled prior precedent and
limited that rule to situations where there was “ ‘grievous ambiguity’ ” in a statute and
“ ‘no [other] basis for choosing among plausible interpretations of a statute.’ ” See State
v. Velez, 829 N.W.2d 572, 585 (Iowa 2013) (quoting State v. Hearn, 797 N.W.2d 577,
585–87 (Iowa 2011)). As I reread Hearn, I do not believe the extensive discussion of the
rule of lenity therein actually reached that conclusion. In fact, the only conclusion we
seem to have reached in Hearn is that “the rule of lenity does not apply if there is no
ambiguity regarding the application of a statute to a given set of facts after examination
of the text, the context of the statute, and the evident statutory purpose as reflected in
the express statutory language.” Hearn, 797 N.W.2d at 587. Notably, we have more
recently indicated that “[w]e adhere to the rule of lenity, which guides us to resolve
ambiguities in criminal statutes in favor of the accused.” State v. Hagen, 840 N.W.2d
140, 146 (Iowa 2013).
Regardless, I continue to believe Velez was correctly decided, particularly in light
of the minutes of testimony indicating the defendant had inflicted two or more separate
blows, each of which caused a separate serious injury. See 829 N.W.2d at 583–84.
18
was adopted as part of the 1976 criminal code revision, see 1976 Iowa
Acts ch. 1245, ch. 1, § 1401 (codified at Iowa Code § 714.1(1979)), we
had the crime of “larceny.” Under the longstanding definition of larceny
in this state, that crime occurred when a person stole, took, and carried
away property of another. See, e.g., Iowa Code § 2612 (1851) (“If any
person steal, take and carry away, of the property of another, any money,
goods, or chattels . . . .”).
In applying this definition of larceny, we found that “[t]he stealing
of several articles at the same time and in the same act from the same
person constitutes but one transaction, and is one act of larceny.” State
v. Broderick, 191 Iowa 717, 718–19, 183 N.W. 310, 311 (Iowa 1921).
Broderick described an easy case, but we also found a single larceny on
other occasions. For example, in State v. Vandewater, we upheld a jury
determination that the defendant’s theft of fencing materials from a
single location constituted “a single transaction or single larceny,” even
though the defendant had to make two distinct trips or “asportations” to
remove all the materials. 203 Iowa 94, 99, 212 N.W. 339, 342 (Iowa
1927).
In State v. Sampson, the defendant stole a watch from one
roommate and $42 from another while both were sleeping. 157 Iowa
257, 258, 138 N.W. 473, 473 (Iowa 1912). Nevertheless, we held the
state could only prosecute one larceny. Id. at 263, 138 N.W. at 475.
“That an instant or several minutes may have intervened between seizing
the watch and the purse can make no difference if these were a part of
the same transaction wherein the accused carried out his design of
stealing these articles.” Id. at 259, 138 N.W. at 473. We discussed the
single-larceny rule in 1977, following the enactment of the new criminal
code and before the new code had taken effect. We did not suggest the
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new code had changed anything. See State v. Cabbell, 252 N.W.2d 451,
452–53 (Iowa 1977) (holding that shoplifting from two separate
department stores did not amount to a single larceny because of “the
differences in owners, locations and times”).
In fact, despite the changeover from the classic definition of
“larceny” to the new crime of “theft” in the 1976 criminal code revision,
we have continued to recognize the single-larceny rule. Thus we
reiterated in 1981 that “ ‘[w]here several articles are stolen from the same
owner at the same time and place, only a single crime is committed.’ ”
State v. Amsden, 300 N.W.2d 882, 884 (Iowa 1981) (quoting 52A C.J.S.
Larceny § 53, at 479 (1968)). We declined to apply the single-larceny
rule in 1983 to a theft of a tractor and a trailer, but only because the
statute “provid[ed] otherwise,” that is, the legislature had defined theft of
a motor vehicle as a separate crime. State v. Parker, 342 N.W.2d 459,
462 (Iowa 1983). We also recognized the rule but declined to apply it in
1994 to thefts from two separate buildings. State v. Chrisman, 514
N.W.2d 57, 59–60 (Iowa 1994).
One might argue that section 714.3—also part of the 1976
revision—was intended to displace the single-larceny rule. Section 714.3
provides:
If money or property is stolen from the same person or
location by two or more acts, or from different persons by
two or more acts which occur in approximately the same
location or time period, or from different locations by two or
more acts within a thirty-day period, so that the thefts are
attributable to a single scheme, plan, or conspiracy, these
acts may be considered a single theft and the value may be
the total value of all the property stolen.
Iowa Code § 714.3 (2009).
However, in Chrisman, we held that section 714.3 conferred on the
state “a power, not a duty,” and then proceeded to separately consider
20
the single-larceny rule. Chrisman, 514 N.W.2d at 59–60. By doing so,
we implicitly recognized that section 714.3 did not dispense with the
single-larceny rule. Notably, section 714.3 sweeps much more broadly
than the single-larceny rule and allows the state to aggregate, for
example, removals of property from more than one location. 5
I think the present case falls within the single-larceny rule.6
Copenhaver obtained cash by going successively to two different teller
windows in one room of the bank. Ask the question this way: If
Copenhaver had simply been able to pick up the cash from the two
different windows without putting anyone in fear, would there have been
one theft or two? I think the answer is one.
Because I find only one intended theft occurred here, I cannot
sustain the second robbery conviction. I do not claim originality for my
position. I find helpful and persuasive much of the reasoning of the
judge on the court of appeals who dissented in part. His opinion also
cites to a number of out-of-state decisions that reach the same
conclusion as we do. See, e.g., State v. Franklin, 130 S.W.3d 789, 796
(Tenn. Crim. App. 2003) (finding only one robbery where defendants
committed a single theft from a market, albeit from the presence of two
persons, because Tennessee’s robbery statute is “defined in terms of
‘theft’ ”).
5As noted by the majority, one treatise claims that Iowa has rejected the single-
larceny rule. See 4 Robert R. Rigg, Iowa Practice: Criminal Law § 11:46, at 413 (2013).
However, that treatise cites only to Chrisman, and I do not think Chrisman supports
that conclusion.
6Themajority correctly points out that Copenhaver has not discussed the single-
larceny rule in his briefing. However, Copenhaver vigorously contends that there was
only one intended theft and hence only one robbery. The single-larceny rule is the
reason why.
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At the same time, I believe the out-of-state opinions cited by the
majority are distinguishable. The Massachusetts case, Commonwealth v.
Levia, does not involve a “similar statute.” See 431 N.E.2d 928, 930
(Mass. 1982). Massachusetts law provides that a robbery occurs when a
person “assaults another and robs, steals or takes from his person
money or other property which may be the subject of larceny.” Id. at 930
n.2. Thus, it defines robbery as an assault plus a taking from the person
assaulted, not as an intended theft involving one or more assaults. As
the Massachusetts Supreme Judicial Court stated, “In construing the
armed robbery statute, this court has previously stressed the assault
aspect of the crime.” Id. at 930.
Brown v. State, the Florida case, arguably involves a statute where
the unit of prosecution is a taking rather than an assault. See 413 So.
2d 1273, 1274 (Fla. Ct. App. 1982), aff’d, 430 So. 2d 446 (Fla. 1983).
However, as one reads the Florida Supreme Court’s opinion, it seems
clear Florida does not follow a single-larceny rule like Iowa’s. See Brown,
430 So. 2d at 447.
Nevada defines robbery as “the unlawful taking of personal
property from the person of another, or in the person’s presence, against
his or her will, by means of force or violence or fear of injury, immediate
or future, to his person or property.” See Nev. Rev. Stat. Ann.
§ 200.380(1) (West, Westlaw current through 2013 Reg. Sess.). This is a
victim-based statute. Thus, it is logical in Nevada to treat the number of
victims as the unit of prosecution. See Klein v. State, 784 P.2d 970, 973
(Nev. 1989) (per curiam). Iowa does not have that kind of statute.
California—like Nevada—has a statute that appears to make the
victim the unit of prosecution. It defines robbery as “the felonious taking
of personal property in the possession of another, from his person or
22
immediate presence, and against his will, accomplished by means of
force or fear.” See People v. Scott, 200 P.3d 837, 840 (Cal. 2009) (internal
quotation marks omitted). Hence, the California Supreme Court
understandably reasoned that robbery is a crime of violence “committed
against a person.” Id. at 840–41.
Finally, Colorado’s somewhat cryptic robbery statute provides that
“[a] person who knowingly takes anything of value from the person or
presence of another by the use of force, threats, or intimidation commits
robbery.” See People v. Borghesi, 66 P.3d 93, 98 (Colo. 2003) (internal
quotation marks omitted). In Borghesi, the Colorado Supreme Court
found the statutory language not especially helpful and thus declined to
follow a unit of prosecution analysis. Id. at 98 n.5. Instead, it drew
upon “the common law emphasis on the assaultive nature of the crime.”
Id. at 99–103. I agree with the majority that we can and should follow a
unit of prosecution approach in Iowa.
In short, the main thing these cases establish is that state laws
differ from each other and one ought to read and construe every state’s
robbery statute on its own. None of the foregoing states follows Iowa’s
approach of defining robbery in terms of an intended theft plus “any” of
the following conduct in furtherance of “the” intended theft.
For these reasons, I respectfully dissent in part.
Waterman, J., joins this concurrence in part and dissent in part.