State v. Morris

677 N.W.2d 787, 2004 Iowa Sup. LEXIS 111, 2004 WL 736847

• Court: Supreme Court of Iowa
• Decided: April 7, 2004
• Docket: 02-1033
• Status: Published

Opinions

PER CURIAM.

Defendant, Willis Elbert Morris, appeals from judgment and sentence convicting him of second-degree theft as a habitual offender in violation of Iowa Code sections 714.2(2), 902.8, and 902.9(3) (2001). The alleged theft involved a motor vehicle. He contends that the State failed to produce sufficient evidence that he intended to permanently deprive the owner of possession of the motor vehicle, an essential element of theft involving a motor vehicle. The court of appeals agreed with that contention and reversed defendant’s conviction for theft. After reviewing the record and considering the arguments presented, we affirm the decision of the court of appeals. The judgment of the district court is reversed and remanded.

On October 6, 2001, at 4:30 a.m., Brian Gonzales started the engine on his truck parked on the street in front of his home. He intended to let it warm up before driving to work. Gonzales reentered his home leaving the engine running. Shortly thereafter, he heard a “revving” of the truck’s engine, looked outside, and saw someone driving his truck away.

'Gonzales called Waterloo police and reported the taking of the vehicle. Officer Aaron McClelland arrived at the scene and took the necessary information from Gonzales, including a description of the truck. The officer then put out an “attempt to locate” call to Waterloo patrol officers for the location of a brown Ford Ranger pickup truck.

Approximately thirty minutes later, McClelland came upon the missing truck about five miles from Gonzales’s residence. The truck was being driven in the opposite direction from that of the officer’s vehicle. McClelland turned his police vehicle around and gave pursuit. The person driving Gonzales’s truck stopped the vehicle, got out, and fled on foot toward nearby houses. Officer McClelland radioed for backup and a K-9 unit responded. One of the dogs alerted police to the presence of a person hiding on a porch of a house. McClelland identified this person as the man who had fled from the truck. That person was ultimately determined to be defendant, Willis -Elbert Morris.

Defendant was arrested and charged with second-degree theft pursuant to Iowa Code section 714.2(2) (the motor vehicle version), a class “D” felony. He was also charged as a habitual offender, pursuant to Iówa Code section 902.8. The second-degree theft charge was submitted to the jury along with the lesser-ineluded offense of operating a motor vehicle without the owner’s consent in violation of Iowa Code section 714.7. The jury found defendant guilty of second-degree theft. He ultimately stipulated to the prior offenses on which the habitual-offender sentencing enhancement was based.

The court of appeals, relying on our decision in State v. Schminkey, 597 N.W.2d 785 (Iowa 1999), concluded that the mere fact that defendant took Gonzales’s pickup truck without consent of the owner did not give rise to an inference that he intended to permanently deprive the owner of the vehicle. The court further concluded that the evidence, viewed in its entirety, was insufficient to permit a finding of the requisite intent beyond a reasonable doubt. We agree with the court of appeals’ reading of Schminkey and its application to the present facts.

Although apprehension of the suspect within a short time of the taking of the vehicle does not defeat the possibility that there was an intent to permanently deprive the owner of the property at the time of the taking, it is a circumstance that severely limits the circumstantial evidence from which that intent can be inferred. The State urges that the circumstances under which the defendant abandoned the vehicle, i.e., stopping it and running away, are indicative of the requisite intent. We disagree. Abandoning the vehicle and fleeing upon observing the presence of police was an act that would ordinarily assure that the truck would be returned to its owner. We affirm the decision of the court of appeals holding that the evidence was insufficient to support a conviction for second-degree theft.

The court of appeals simply remanded the case for further proceedings not inconsistent with its opinion. We believe a more specific remand mandate is warranted. The offense of operating a motor vehicle without the owner’s consent in violation of Iowa Code section 714.7 was submitted to the jury as a lesser-ineluded offense. The jury did not reach a verdict on that offense because it found that the State had established all elements of the greater offense. In so doing, the jury necessarily found that the State had established all elements of the included offense. In such instances, we have approved entering an amended judgment of conviction with respect to the lesser-included offense. State v. Pace, 602 N.W.2d 764, 774 (Iowa 1999); see also State v. Lampman, 342 N.W.2d 77, 81 (Iowa Ct.App.1983); 5 Am. Jur.2d Appellate Revieiv §§ 836, 844 (1995). We order that this be done following remand in the present case. Defendant shall then be resentenced according to law.

DECISION OF COURT OF APPEALS AFFIRMED; DISTRICT COURT JUDGMENT REVERSED AND REMANDED.

All justices concur except CARTER, J., who concurs specially, and LARSON, CADY, and STREIT, JJ., who dissent.