Opinion
No. 6-222 / 05-0451
Filed April 12, 2006
Appeal from the Iowa District Court for Polk County, Richard G. Blane, II, Judge.
Defendant appeals his conviction for second-degree robbery. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and David A. Adams, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Linda J. Hines, Assistant Attorney General, John P. Sarcone, County Attorney, and Jaki Livingston, Assistant County Attorney, for appellee.
Considered by Huitink, P.J., and Vaitheswaran and Eisenhauer, JJ.
Bryan Reader appeals from his conviction following a jury trial for second-degree robbery, in violation of Iowa Code sections 711.1 and 711.3 (2003). We affirm.
I. Background Facts and Proceedings
On Sunday, January 4, 2004, Donna Wesloski was in the skywalk system in downtown Des Moines preparing to use an ATM machine. Wesloski uses a wheelchair because of rheumatoid arthritis; she also uses an oxygen machine. She had her ATM card in her hand when a man she later identified as Reader approached and tried to take the card out of her hand. Wesloski held on to the card by wrestling with her hands and arms. She told Reader, "No," and pushed him back.
Assuming Reader had left the area, Wesloski inserted her ATM card and withdrew twenty dollars from her account. As she held on to her money, ATM card, and receipt, Reader came up and grabbed all three items from her hand. She attempted to fight Reader and push him away, but she did not have the strength to stop him. As Reader walked away, Wesloski stood and yelled, "Fire!" to alert others in the area. Reader ran away and dropped the ATM card. He was stopped by police on the street a short time later with a twenty-dollar bill in his possession.
The State charged Reader with second-degree robbery. At trial, he admitted he had taken Wesloski's money, ATM card, and receipt. However, he testified he took these items directly from the ATM machine and never touched Wesloski. In rebuttal, the State introduced a videotape showing an ATM machine does not dispense the ATM card, money, and receipt simultaneously.
The State initially charged Reader with first-degree theft. After a series of events irrelevant to this appeal, the State filed an amended and substituted trial information on July 29, 2004, charging Reader with second-degree robbery.
Reader moved for a judgment of acquittal following the State's case in chief and again at the conclusion of all the evidence. The district court denied the motions. The jury found Reader guilty of second-degree robbery. Reader admitted he previously had been convicted of two felonies and was sentenced to an indeterminate fifteen-year term of imprisonment. He appeals, claiming there was insufficient evidence to support the assault element of his conviction.
II. Standard of Review
We review sufficiency-of-the-evidence claims for correction of errors at law. State v. Keeton, 710 N.W.2d 531, ___ (Iowa 2006). We will uphold a verdict if substantial record evidence supports it. State v. Heard, 636 N.W.2d 227, 229 (Iowa 2001). "`Evidence is substantial if it would convince a rational fact finder that the defendant is guilty beyond a reasonable doubt.'" Id. (quoting State v. Mitchell, 568 N.W.2d 493, 502 (Iowa 1997)). We consider all the record evidence, not just the evidence supporting guilt. Id. We view the evidence in the light most favorable to the State, "including legitimate inferences and presumptions that may fairly and reasonably be deduced from the record evidence." Keeton, 710 N.W.2d at ___ (citation omitted).
In addition to a review of the relevant evidence, we must also review the governing law. Id. "Ultimately, we must apply the law to the evidence to determine if the evidence is sufficient to support the conviction." Id. III. Discussion
In order to prove Reader guilty of second-degree robbery, the State was required to prove (1) intent to commit a theft and (2) the commission of an assault. See Iowa Code § 711.1(1). The jury was instructed an "assault" is committed when a person does either of the following:
1. any act which is intended to cause pain and injury to, or which is intended to result in physical contact which will be insulting or offensive to another, coupled with apparent ability to execute the act; or
2. any act which is intended to place another person in fear of immediate physical contact which will be painful, injurious, insulting or offensive, when coupled with apparent ability to execute the act.
See id. 708.1(1), (2). Thus, the State had to prove that Reader did an act he intended either (1) to cause Wesloski pain or injury, (2) to make insulting or offensive physical contact with Wesloski, or (3) to make Wesloski fear immediate painful, injurious, insulting, or offensive physical contact. See Keeton, 710 N.W.2d at ___. Intent required by section 708.1 "`may be inferred from the circumstances of the transaction and the actions of the defendant.'" Id. (quoting 21 Am.Jur.2d Criminal Law § 128, at 214-15 (1998)).
An assault requires an overt act. Heard, 636 N.W.2d at 231. An overt act is defined as "`[a]n open, manifest act from which criminality may be implied. An outward act done in pursuance and manifestation of an intent or design.'" Id. (quoting Black's Law Dictionary 1104-05 (6th ed. 1990)).
Reader argues the contact initiated by Wesloski, with no like response from him, does not constitute an assault. The State, however, presented ample evidence from which the jury could conclude an assault occurred. Reader approached Wesloski and attempted to grab her ATM card. He returned and grabbed her ATM card, money, and receipt from her hands. Both times, the two touched hands and jostled back and forth. The physical contact between the two was caused by Reader's overt act of forcibly taking Wesloski's possessions. It follows that the struggle between the two could result in unwanted physical contact that would be insulting or offensive to Wesloski.
The jury was free to reject Reader's testimony that he never touched Wesloski. See State v. Anderson, 517 N.W.2d 208, 211 (Iowa 1994). Moreover, even if Reader did not actually touch Wesloski or speak to her, the jury could have concluded that Reader intended to place Wesloski in fear of physical contact that would be painful, injurious, insulting, or offensive, and had apparent ability to execute the act. Wesloski testified she was scared by the incident because she did not know what Reader was going to do to her, if he would "try to hit me over the head," or "put his hands around my neck."
We conclude there was substantial evidence presented at trial that Reader committed an assault on Wesloski. We affirm Reader's conviction for second-degree robbery.