Opinion
No. 1-894 / 00-1989.
Filed March 27, 2002.
Appeal from the Iowa District Court for Johnson County, William L. Thomas, Judge.
Defendant appeals his convictions for second-degree robbery and second-degree theft. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Dennis Hendrickson, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Cristen C. Odell, Assistant Attorney General, J. Patrick White, County Attorney, and Linda Paulsen, Assistant County Attorney, for appellee
Considered by VOGEL, P.J., and MILLER and EISENHAUER, JJ.
Torro Tolucka Roberts appeals his convictions for second-degree robbery and second-degree theft, contending the court erred in denying his request for a "theory of defense" instruction. We affirm.
I. Background facts and proceedings.
On December 10, 1999, a man approached teller Todd Shinkunas at the Commercial Federal Bank in Iowa City and passed a note reading "bank robbery, holdup, give me money." Shinkunas passed the man a bundle of twenty-dollar bills containing "bait money" which can be traced. Shinkunas provided a physical description of the individual, but was unable to identify him from either a photo lineup or at trial.
On December 11, an individual approached Lanie Crowley, an employee at Northwest Airlines in Cedar Rapids, and attempted to purchase a one-way ticket to Las Vegas with twenty-dollar bills. He gave the name Torro Roberts, showed her a driver's license, and paid for the ticket, but then cancelled the purchase and received a refund. Also on December 11, a man checked into the Cedar Rapids Exel Inn and gave the name "James Davis." He provided an Iowa City address and paid in cash. Police subsequently received a tip that Torro Roberts was staying at the Exel Inn and arrested him there. In his room, they discovered the bank's "bait money" in his drawer.
Based on these events, the State charged Roberts with second-degree robbery, in violation of Iowa Code sections 711.1(1) and/or (2) and 711.3 (1999), and second-degree theft, in violation of sections 714.1(1) and 714.2(2). Following a trial, the jury found Roberts guilty on both counts. The court sentenced him to an indeterminate term not to exceed ten years on the robbery count and an indeterminate term not to exceed five years on the theft count. The court ordered that the sentences run concurrently. Roberts appeals, contending the trial court erred in failing to submit to the jury an instruction for the non-lesser included offense of possession of stolen property. In the alternative, he asserts trial counsel was ineffective for failing to adequately preserve this issue.
II. Standard of review.
Our review of the district court's rulings on instructions is for errors at law. Iowa R. App. P. 6.4; State v. Breitbach, 488 N.W.2d 444, 449 (Iowa 1992). To the extent Roberts urges his constitutional right to due process was violated, we conduct a de novo review. State v. Veal, 564 N.W.2d 797, 802 (Iowa 1997).
III. Exercising control over stolen property instruction.
Following the presentation of evidence, Roberts' counsel made the following statement to the court:
Finally, I would ask the court to submit a theory of defense instruction that goes something like the defense's theory of defense is that if he is guilty of any offense, it's possession of stolen property which is an offense that is not charged in this matter and not to take that into account in making your determination of whether the defendant is guilty or not, along those lines. That's the theory of defense.
On appeal, Roberts asserts the court should have instructed the jury on the theft alternative of exercising control over stolen property. See Iowa Criminal Jury Instruction 1400.13. He admits the crime of exercising control over stolen property is not a lesser-included offense of either crime charged, but believes that because such an instruction was "logical, sensible, specifically fact based, and eminently plausible," the court was under a duty to so instruct the jury. See generally State v. Broughton, 425 N.W.2d 48, 51 (Iowa 1988) (stating the trial court has a duty to instruct on all material issues raised by the evidence).
"[T]he district court must instruct on a defendant's theory of defense provided the defendant makes a timely request, the requested theory of defense instruction is supported by the evidence, and the requested instruction is a correct statement of the law." State v. Ross, 573 N.W.2d 906, 913 (Iowa 1998). A proper theory of defense instruction is one which sets forth a set of facts which would preclude a finding of guilt. State v. Kase, 344 N.W.2d 223, 226 (Iowa 1984); State v. Johnson, 534 N.W.2d 118, 124 (Iowa Ct.App. 1995). Such an instruction is neither a marshalling instruction which sets forth the elements of the crime and requires the State to prove those elements, nor an instruction which defines one of the elements set forth in the marshalling instruction. Conner v. State, 362 N.W.2d 449, 453 (Iowa 1985).
We conclude defense counsel's requested instruction on exercising control over stolen property was not a proper theory of defense instruction and that the court therefore did not err in refusing to offer it. First, the State did not charge Roberts with exercising control over stolen property, and the requested instruction therefore stated a rule of law inapplicable to this prosecution. See Johnson, 534 N.W.2d at 124; see also State v. Anspach, 627 N.W.2d 227, 233 (Iowa 2001) (noting the prosecutor possesses charging discretion). Second, the proposed instruction does not set forth facts precluding a finding of guilt. Even if the jury found Roberts' actions did constitute exercising control over stolen property, there still exists in the record sufficient evidence from which the jury might conclude he committed the offenses of second-degree theft and second-degree robbery. By convicting Roberts of robbery and theft, the jury concluded he was guilty of something more than simple possession of stolen property. Finally, we note defense counsel essentially presented this contention in closing arguments where he urged to the jury it could find Roberts was merely in possession of stolen property, which is a distinct offense the State chose not to charge him with.
We conclude the district court did not err in refusing to instruct the jury on the elements of exercising control over stolen property. We therefore affirm Roberts' convictions.
AFFIRMED.