Opinion
No. 2-674 / 01-1918
Filed September 11, 2002
Appeal from the Iowa District Court for Black Hawk County, Jon C. Fister, Judge.
Defendant appeals his conviction for robbery in the first degree claiming the district court gave an erroneous jury instruction. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Shellie Knipfer, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Richard Bennett, Assistant Attorney General, Thomas Ferguson, County Attorney, and Joel Dalrymple, Assistant County Attorney, for appellee.
Considered by Huitink, P.J., and Zimmer and Miller, JJ.
James Greene appeals the judgment and sentence entered upon his conviction for robbery in the first degree in violation of Iowa Code sections 711.1 and 711.2 (1999). Greene claims the jury instruction defining theft shifted the burden of proof and, thus, unconstitutionally denied him due process. We affirm without reaching the merits of his contention.
I. Background Facts and Proceedings .
James Greene was a subcontractor for Cover Up Industries, an exterior home improvement business. In September 2000, he contracted to hang siding on a home. Believing the work to be complete, Greene asked Cover Up Industries owner James Ayres for payment of his services. Ayres informed Greene the work was incomplete and corrections needed to be made. Later the same day, Ayres told Greene they would "settle up" when the repairs were complete.
Upset, Greene left and retrieved a handgun. Greene returned to Ayres's office and asked him for payment. When Ayres again refused, Greene pulled out the semiautomatic handgun and demanded payment. Ayres gave Greene money from his billfold and employee John Winchell gave him money from the petty cash drawer. Greene then ordered the men to lie down in the corner of the room. Upon leaving and getting into his car, Greene accidentally shot himself in the leg. He drove himself to the hospital where he was treated and then arrested.
On September 22, 2000, the State filed a trial information charging Greene with first-degree robbery in violation of Iowa Code section 711.2 and possession of a firearm as a felon in violation of section 724.2(6). The possession of a firearm charge was later dismissed. Trial commenced on October 23, 2001. After the close of all evidence, Greene moved for judgment of acquittal which the court denied. During discussion of the jury instructions, Greene objected to the court's proposed jury instruction defining theft. His objection was denied. The jury found Greene guilty and he was sentenced.
II. Discussion .
Greene appeals claiming the jury instruction defining theft violates his due process rights. Specifically, he claims the instruction shifts the burden of proof from the State to him. He claims the instruction relieves the State of its duty to prove every element of the offense charged beyond a reasonable doubt. The court instructed the jury as to the definition of theft, in pertinent part, as follows.
The crime of "theft" is defined as: Taking possession or control of the property of another, or property in the possession of another, with the intent to deprive the other thereof. Ownership is not necessary to the crime of theft; it is committed by an unauthorized taking from one who is in rightful possession. In addition, a rebuttable presumption exists that those in possession of property are rightly in possession.
(emphasis added). The italicized portion is at issue on appeal.
We are unable to reach the merits of Greene's claim. Defendant argues error was preserved by his objection to the theft instruction. Conversely, the State argues Defendant's objection does not preserve error because he did not assert that the instruction offended the constitution because it allegedly shifted the burden of proof. We agree with the State.
Our scope of review on objections to instructions is on assigned error. Iowa R. App. P. 6.4. We may only consider on appeal those objections to instructions previously raised with the trial court. State v. Hepperle, 530 N.W.2d 735, 738 (Iowa 1995) (citations omitted).
An objection to the court's instructions must specify the subject of the objection and the grounds of the objection. Id. The objection must be sufficiently specific to alert the trial court to the basis for the complaint so that if error does exist the court may correct it before placing the case in the hands of the jury. Id. A general objection preserves nothing for review. Id. In addition, when a defendant makes an objection to the trial court's instructions, the defendant is bound by that objection on appeal. Id. A defendant cannot amplify or change the objection on appeal. Id.
At trial, Greene's counsel merely objected to the proposed instruction defining theft on the ground that it included language not found in the Code. His counsel made no reference to due process, the constitution, or improper burden shifting. The objection did not alert the trial court to the basis of the current complaint so that if error did exist, the court could correct it before placing the case with the jury. Greene cannot change the objection on appeal so as to raise it for the first time. Without addressing the constitutionality of the theft instruction, we affirm the decision of the trial court.
AFFIRMED.