State v. Burke

368 N.W.2d 182, 1985 Iowa Sup. LEXIS 1051
CourtSupreme Court of Iowa
DecidedMay 22, 1985
Docket84-1053
StatusPublished
Cited by4 cases

This text of 368 N.W.2d 182 (State v. Burke) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Burke, 368 N.W.2d 182, 1985 Iowa Sup. LEXIS 1051 (iowa 1985).

Opinions

McGIVERIN, Justice.

Defendant Bob D. Burke appeals from his convictions after jury trial of attempted feticide and unlawful termination of a human pregnancy, both in violation of Iowa Code section 707.7 (1983). We affirm.

On this appeal, defendant does not challenge his conviction for attempted feticide. However, with respect to his conviction for unlawful termination of a human pregnancy, he contends (1) that as a matter of law the pregnancy in question was not termi[184]*184nated within the meaning of section 707.7 because the child was born alive, and (2) that there was insufficient evidence to support a conclusion beyond a reasonable doubt that defendant’s acts caused the pregnancy to terminate. We find no merit in these contentions.

On October 4, 1983, defendant was charged by trial information in count I with committing the offense of unlawful termination of a pregnancy on or about August 7, 1983 and in count II with committing the offense of attempted feticide in July or August of 1983. The pregnancy in question was that of his stepdaughter, Tonia Burke, who was thirteen years old at the time of the acts alleged in the trial information.

Tonia testified for the State that in early July of 1983 she was tested at a clinic and found to be pregnant. She further testified that defendant learned about her pregnancy by calling the clinic. He sent her back to the clinic on July 13 with a note, which she did not read. Dr. Kent Croskey, a physician at the clinic who read the note, testified that the note requested him to determine how far Tonia’s pregnancy was advanced and to write a letter or form stating his conclusion for the use of a doctor in Iowa City.

Dr. Croskey complied with the request. On July 18, defendant took Tonia to the Early Termination of Pregnancy clinic in Iowa City to have an abortion performed. Tonia in her testimony denied wanting an abortion, but defendant, testifying in his own behalf, asserted that she did want one.

After examining Tonia, the doctors at Iowa City declined to perform an abortion on the ground that the pregnancy was too far advanced. Tonia and defendant returned to their home in Waterloo.

Tonia testified that a week or two after their trip to Iowa City, defendant blindfolded her and took her to a Cedar Falls address. She was led into a room and made by defendant to undress and lie on her back on a table. An object1 that she described as about 21 inches long and “as big around as a skinny straw” was inserted several times in her vagina. Tonia testified that during this time she heard defendant talking to an unidentified woman. Tonia said that she and defendant went home with the object still in her vagina and that she left the object in overnight at defendant’s direction.

Although the July incident caused pain and bleeding, Tonia did not miscarry as a result of it. She testified that on August 7 defendant repeated the operation, this time inserting a coat hanger into the object that had been used in July. The August 7 incident caused Tonia more severe pain than she had experienced from the July insertions, and she was taken to a hospital later that day. The next day her baby was born prematurely and alive.

The State also offered testimony from defendant’s acquaintances, who testified that he told them about his attempts to abort Tonia’s pregnancy and that he had said the first attempt, made with the help of a friend in Cedar Falls, had been unsuccessful but that the second attempt had succeeded.

Dr. Paul Schoon, who treated Tonia on August 7 and delivered her baby, testified in response to a hypothetical question that in his opinion the events alleged by Tonia to have occurred on August 7 would probably cause termination of a pregnancy.

The jury found defendant guilty in count II of attempted feticide with respect to the first attempt in Cedar Falls to abort Tonia’s pregnancy.2 The jury also found defendant guilty in count I of unlawful termination of a human pregnancy with respect [185]*185to the second attempt events of August 7.3 This appeal by defendant followed concerning the count I charge.

I. Was Tonia Burke’s pregnancy terminated within the meaning of Iowa Code section 707.71 Defendant contends that, because Tonia’s baby was born alive, her pregnancy was not terminated within the meaning of the portion of Iowa Code section 707.7 involved here and that as a matter of law he cannot be found guilty of unlawful termination of a human pregnancy under that statute. Defendant’s motions for judgment of acquittal, Iowa R.Crim.P. 18(8), raised this point. In support of this contention, defendant argues that because the phrase “termination of pregnancy” is not defined by the Code, its definition must be sought in the common law. Defendant further asserts that because the death of the fetus was an element of the common law crime of procuring a miscarriage or abortion,4 it must also be considered an element of the crime of unlawful termination of a pregnancy.

We find this argument unpersuasive. When an offense is declared by statute in the general terms of the common law, without further definition, we will resort to the common law to define the acts constituting the offense. See, e.g., State v. Delay, 320 N.W.2d 831, 834 (Iowa 1982) (prior to 1978 revision of criminal code, crime of assault was defined by the common law). However, all crime in Iowa is statutory, and when a statute clearly defines a crime, we will not resort to the common law to add or detract from the language of the statute. State v. DiPaglia, 247 Iowa 79, 84, 71 N.W.2d 601, 604 (1955), cert. denied, 352 U.S. 1017, 77 S.Ct. 564, 1 L.Ed.2d 549 (1957); State v. Clough, 181 Iowa 783, 785, 165 N.W. 59, 60 (1917); 21 Am.Jur.2d Criminal Law § 7 (1981); 22 C.J.S. Criminal Law § 21 (1961). Accord State v. Forsman, 260 N.W.2d 160, 164 (Minn.1977); State v. Gallegos, 193 Neb. 651, 653, 228 N.W.2d 615, 617 (1975).

As relevant to this case, section 707.7 states that any person who is not licensed to practice medicine or surgery under Iowa Code chapter 148 or chapter 150A and who terminates a human pregnancy is guilty of a crime. The language is clear and simple, and contains no term requiring definition by the common law. Cf. State v. Mattan, 207 Neb. 679, 684, 300 N.W.2d 810, 813 (1981) (“due care” in criminal statute defined according to common law); State v. Woodworth, 234 N.W.2d 243, 247 (N.D.1975) (“disturbing the peace”); People v. Askar, 8 Mich.App. 95, 99, 153 N.W.2d 888, 891 (Mich.Ct.App.1967) (“sodomy”).

There is no requirement in the portion of section 707.7 involved here that the fetus be born dead before a crime can occur.

We conclude that there is no room in section 707.7 for the process of interpretation that defendant urges us to pursue.

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State v. Burke
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Bluebook (online)
368 N.W.2d 182, 1985 Iowa Sup. LEXIS 1051, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-burke-iowa-1985.