Opinion
No. 1-509 / 99-1694.
Filed January 28, 2002.
Appeal from the Iowa District Court for Pottawattamie County, TIMOTHY O'GRADY, Judge.
Mickey Focht appeals from his conviction and sentence for second-degree robbery. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and John P. Messina, Assistant State Appellate Defender, until withdrawal, and then Bill Bracker, Council Bluffs, for appellant.
Thomas J. Miller, Attorney General, Cristen C. Odell, Assistant Attorney General, Richard Crowl, County Attorney, and Christopher Wilson, Assistant County Attorney, for appellee.
Heard by HUITINK, P.J., and ZIMMER and VAITHESWARAN, JJ.
Mickey Focht appeals his conviction for robbery in the second degree, in violation of Iowa Code sections 711.1(2) and 711.3 (1999). He claims: (1) the application of section 902.12 to second-degree robbery, and not extortion, violates the Equal Protection Clause; (2) there was insufficient evidence to corroborate his confession; (3) there was insufficient evidence to support his conviction; and (4) he received ineffective assistance of counsel. We affirm on appeal.
On May 9, 1999, Dottie and Albert Schmid went to Harvey's Casino in Council Bluffs, Iowa, for a Mother's Day brunch. As they were walking back to their car, a man in a green car drove very close to them. The man reached out and grabbed Dottie's purse, then drove quickly away. Dottie testified about the incident:
Q. What happened next?
A. Well, I thought I started to take a step and all of a sudden I felt this car coming around and it was — it was so close it was scary.
. . . .
Q. Is there any way you could estimate the speed of this vehicle?
A. I would say he was going 30 to 35 miles an hour. He was going very fast.
Q. And did this alarm you?
A. Yes. I — I didn't have any indication he was coming, and as I said, we were — we were [the] third car [down] from walking into the parking area when all of a sudden this car came speeding around the corner and, you know, I kind of looked and as I looked, I felt my arm go up and hit the side mirror (indicating). And I had a hold of my purse and my strap was across my right shoulder, and as my elbow hit there, I hung on to the purse real tight and it just went. And then, you know, my — after my wrist came — or my elbow came down like this, my wrist, it wrenched my wrist because it broke the strap and pulled it right off my arm.
Dottie's purse contained two checkbooks, credit cards, and about eighty dollars cash.
Police officers discovered one of the stolen checks had been submitted to the First National Bank of Omaha. The check was made out to Mic Focht for $280, and was endorsed by him. On May 13, 1999, officers contacted Focht to discuss the check. He confessed to taking Dottie's purse. He stated he needed money because he owed a debt to drug dealers. Focht was then charged with second-degree robbery.
Police officers later obtained a second check from Dottie's account made out to Mic Focht for $350 and endorsed by him.
The case was tried to a jury. Focht testified he confessed to the crime because he was afraid of the police officers. He stated that on May 9, 1999, he was actually at his home in West Omaha all day. The jury found Focht guilty of the crime charged. The district court sentenced him to a term of imprisonment not to exceed ten years. Focht appeals.
I. Equal Protection
Focht was convicted of robbery in the second degree. Section 902.12(5) requires that persons convicted of robbery in the second degree "shall serve one hundred percent of the maximum term of the person's sentence and shall not be released on parole or work release."
Inmates may still be entitled to a reduction in sentence of up to fifteen percent of the total sentence for good conduct time. Iowa Code § 903A.2(1).
Focht claims robbery committed under section 711.1(2) is identical to extortion committed under section 711.4(1). Section 902.12 does not apply to the crime of extortion. Focht asserts he was denied equal protection because the Iowa Code provides different treatment for what he alleges are two identical crimes.
We review claims that a criminal statute is unconstitutional de novo. State v. Mann, 602 N.W.2d 785, 791 (Iowa 1999). Because Focht's claim does not implicate a suspect classification, we apply a rational basis rather than a strict scrutiny test. State v. Cronkhite, 613 N.W.2d 664, 668 (Iowa 2000).
If there is a rational distinction between second-degree robbery and crimes not included in section 902.12, then the statute passes a rational basis test. State v. Phillips, 610 N.W.2d 840, 844 (Iowa 2000). Put another way, "if the elements of the offenses are not the same, persons committing the crimes are not similarly situated and, therefore, may be treated differently for purposes of the Equal Protection Clause." State v. Ramirez, 597 N.W.2d 795, 798 (Iowa 1999). The legislature may impose disparate punishments, so long as the offenses are distinguishable on their elements. State v. Ceaser, 585 N.W.2d 192, 196 (Iowa 1998).
The elements of robbery under section 711.1(2) are: (1) a person intends to commit a theft, and (2) in order to assist in the intended theft or escape from the scene threatens another with or purposely puts another in fear of immediate serious injury. Second-degree robbery is a class "C" felony. Iowa Code § 711.3. The elements of extortion under section 711.4(1) are: (1) a person threatens to inflict physical injury on some person, or commit any public offense, (2) with the purpose of obtaining for oneself or another anything of value. Extortion is a class "D" felony. Iowa Code § 711.4.
In State v. Coffin, 504 N.W.2d 893, 895 (Iowa 1993), the supreme court considered whether extortion, under section 711.4(1), was a lesser-included offense of second-degree robbery, under section 711.1(2). Comparing the elements of the two offenses under the marshaling instructions in that case, the court concluded all of the elements of robbery coincided with all of the elements of extortion. Id. The court determined extortion could not be a lesser included offense of second-degree robbery because there was no dissimilar element in the greater offense. Id. at 896. The marshaling instruction for robbery given in Coffin is the same as that given in the present case, which means the elements of robbery in this case also coincide with the elements of extortion.
In considering the crimes of second-degree robbery and extortion, the supreme court also stated:
The exact match up in elements is, on reflection, not surprising in view of the historical development of both crimes and our statutory definition of extortion.
. . . .
It seems the main historical difference between robbery and extortion is that robbery was limited to immediate threats whereas extortion was limited to future threats. Under our extortion statute, however, extortion is not limited to future threats; it can include — like robbery — immediate threats. That perhaps explains what appears to be at first blush an anomaly, that is, the similarity between extortion and robbery.Id. at 896.
Thus, in explaining how second-degree robbery and extortion have similar elements, the supreme court also explained how the two crimes are different. Id. Section 711.1(2) requires an immediate threat of serious injury. Id. (emphasis added). In all likelihood, the defendant and victim will be in the same physical vicinity, which increases the possibility of danger to the victim. On the other hand, the crime of extortion does not require an immediate threat of physical harm. Id. The threat may be of a future harm. Id. The threat could be made distantly by telephone, letter, or e-mail. See State v. Crone, 545 N.W.2d 267, 271 (Iowa 1996) (threat made by telephone).
Therefore, the legislature could rationally decide that a person committing extortion creates less of a risk to society than persons committing second-degree robbery. See Ceaser, 585 N.W.2d at 198. Once it is established that the crimes treated differently address different criminal conduct, it is for the legislature to decide how the differing conduct will be punished. Id. at 199. It is within the province of the legislature to determine the most appropriate means of punishing and deterring criminal activity. Cronkhite, 613 N.W.2d at 669. We conclude the legislature could rationally distinguish between second-degree robbery and extortion, so that application of section 902.12 to one crime and not the other does not violate the Equal Protection Clause of the Fourteenth Amendment.
II. Corroboration of Confession
Focht asserts the State did not present sufficient evidence to corroborate his confession. A defendant's confession will not warrant a conviction unless accompanied by other proof the defendant committed the offense. Iowa R. Crim. P. 20(4). Corroboration need not be strong, nor need it go to the whole case, so long as it confirms some material fact connecting the defendant with the crime. State v. Capper, 539 N.W.2d 361, 364 (Iowa 1995). Although individual items of circumstantial evidence may be insufficient corroboration, the combination of circumstances may permit a jury to conclude the confession was corroborated. State v. Liggins, 524 N.W.2d 181, 187 (Iowa 1994).
Focht appears to argue that all parts of his confession should have been corroborated. He states, "Where the state elects not to disprove any new fact supplied by Defendant, they are in essence withholding exculpatory material from the defense." This argument ignores the rule that the State is not required to prove or disprove all facts supplied by Focht. As noted above, corroboration need not go to the whole case, as long as it confirms some material fact connecting Focht to the crime. Capper, 539 N.W.2d at 364.
We find Focht's confession was sufficiently corroborated by the State. Witnesses stated the crime was committed by a man in a green car. Focht admitted driving a green car. Dottie testified her purse was black, and Focht stated the purse he stole was a dark color. A check from Dottie's account was cashed for $280. Focht admitted making a check out to himself for $280 and cashing it. Furthermore, Focht and the witnesses agreed to the manner in which the crime was committed.
III. Sufficiency of the Evidence
Focht also contends the State did not present sufficient evidence to show he threatened another with or purposely put another in fear of immediate serious injury. See Iowa Code § 711.1(2). He states there is no evidence Dottie felt threatened by the incident. He emphasizes the fact that he made no verbal threats to Dottie, or anyone else.
We review challenges to the sufficiency of the evidence supporting a guilty verdict for correction of errors at law. State v. Heard, 636 N.W.2d 227, 229 (Iowa 2001). We will uphold a verdict if substantial evidence supports it. Id. Evidence is substantial if it would convince a rational fact finder that the defendant is guilty beyond a reasonable doubt. Id.
We first note that section 711.1(2) requires that the defendant makes a threat or the defendant purposely puts another in fear of immediate serious injury. State v. Birch, 479 N.W.2d 284, 286 (Iowa 1991). Under the threat alternative, there is no requirement the victim was placed in fear by the threat. Id. Although there was no evidence of a verbal threat in this case, there was evidence Focht's actions placed Dottie in fear of immediate serious injury. Dottie testified Focht drove so close to her it was scary. She also testified she was alarmed by his conduct.
Furthermore, an automobile may be considered a dangerous weapon. See State v. Oldfather, 306 N.W.2d 760, 763-64 (Iowa 1981). Focht's action of driving extremely close to Dottie could be considered a nonverbal form of intimidation or threat. See Heard, 636 N.W.2d at 230. We conclude there is sufficient evidence to support Focht's conviction under either alternative to robbery under section 711.1(2).
IV. Ineffective Assistance of Counsel
Focht claims he received ineffective assistance of counsel in the following respects: (1) failure to locate and subpoena alibi witnesses; (2) failure to file notice of an alibi defense; (3) failure to object to evidence of other crimes — forged checks; and (4) failure to present the testimony of a handwriting expert.
Our review of an allegation of ineffective assistance of counsel is de novo. Cox v. State, 554 N.W.2d 712, 714 (Iowa Ct.App. 1996). To establish a claim of ineffective assistance of counsel, a defendant must show (1) the attorney failed to perform an essential duty, and (2) prejudice resulted to the extent it denied defendant a fair trial. Bettis v. State, 547 N.W.2d 635, 637 (Iowa Ct.App. 1996). A defendant must state the specific ways in which counsel's performance was inadequate and identify how competent representation probably would have changed the outcome. State v. Astello, 602 N.W.2d 190, 198 (Iowa Ct.App. 1999).
Focht has not explained how he was prejudiced by ineffective assistance of trial counsel. His claims are therefore insufficient as a matter of law and will not be preserved for postconviction relief proceedings.
We affirm Focht's conviction and sentence.
AFFIRMED.