IN THE INTEREST OF L.S.C., Minor Child, L.S.C., Minor Child, Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 8-421 / 07-1052
Filed July 30, 2008
IN THE INTEREST OF L.S.C.,
Minor Child,
L.S.C., Minor Child,
Appellant.
_______________________________________________________________
Appeal from the Iowa District Court for Clinton County, David H. Sivright,
Jr., Judge.
Appellant appeals the juvenile court‟s adjudication finding she had
engaged in a delinquent act. REVERSED.
John J. Wolfe of Wolfe Law Office, Clinton, for appellant.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney
General, Mike Wolf, County Attorney, and Cheryl Newport, Assistant County
Attorney, for appellee State.
Considered by Mahan, P.J., and Miller, J., and Schechtman, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2007).
2
SCHECHTMAN, S.J.
I.
Background Facts & Proceedings
On January 15, 2007, Lynda, fifteen, and Skylar, sixteen, were attending a
high school algebra class.
immediate right.
Lynda‟s desk was adjacent to Skylar‟s to his
That school day, Lynda had been given a razor blade by
another classmate, described by her as being from “a shaving razor, and it was
like cut in half.” She was aware of the school policy forbidding possession of
weapons, including razor blades.
Skylar1 testified:
Well, at the end of this class, I was just sitting there waiting
for the bell to ring and just sitting there putting my books up, and all
of a sudden, Lynda reaches over with a razor blade and cuts me
out of nowhere.
...
I was shocked, and I asked her why she‟d do that. She said
it was an accident and she didn‟t mean to and she was sorry.
...
. . . She just purposely struck my hand.
Skylar received a laceration on the top of his left hand between his wrist
and knuckles. It was bleeding. Lynda gave Skylar her arm warmer to wipe away
the blood. They exited the classroom together and stopped at his locker. She
intentionally cut her hand, so “he wouldn‟t feel so bad for having a big cut across
his hand.”
Lynda had a different version, and testified:
It was on my desk . . . .
...
Skylar was the State‟s sole evidentiary witness, except for a police officer whose
testimony was limited to school policy and identification of photographs. Lynda was the
only defense witness.
1
3
He was teasing me, asking me if I was going to cut him. I
said no. And then he took the razor from me, and he was playing
with it. And then I was trying to get it back from him, he grabbed
my hand and teasing like he was going to cut himself.
. . . [H]e let go my hand—let go of my hand. Then I turned
around and set the razor on my desk . . . .
. . . I guess he had the razor blade again because he put it
on my desk.
...
. . . I guess his hand was bleeding. His hand got cut.
...
. . . And I thought it was my fault at first, so I said, “I‟m
sorry.”
...
I think he was lying to his dad about how it happened so he
stayed out of trouble.
Skylar admits they are friends, talk in class, and there was no problem
between them. Lynda was given a five-day suspension for violation of school
policy. She threw away the razor blade, but acknowledged that “[i]t can deeply
injure somebody and someone going to the hospital for it.”
A delinquency petition2 was filed alleging “Assault Causing Injury in
violation of Section(s) 708.1, 708.2(3) of the Iowa Code; which delinquent act is
an aggravated misdemeanor.” The juvenile court concluding its ruling by finding:
The Court finds Lynda assaulted Skylar by doing an act
intended to place him in fear of immediate physical contact that
would be insulting or offensive, coupled with apparent ability to do
the act, and that she intentionally displayed a dangerous weapon in
a threatening manner toward him. The razor blade used by Lynda
was not a device or instrument designed primarily for use in
inflicting death or injury, but was actually used in such a way as to
indicate she intended to inflict serious injury.
The State has established beyond a reasonable doubt that
Lynda [ ] committed the offense of Assault Causing Injury, an
aggravated misdemeanor in violation Iowa Code § 708.2(3).
2
It was also alleged that Lynda had committed the delinquent act of going armed with
intent, in violation of Iowa Code section 708.8 (2007). The juvenile court dismissed this
charge, which is not a subject of this appeal.
4
The dispositional order placed Lynda on probation with supervision by the
Office of Juvenile Court Services, from which this appeal ensued.
II.
Standard of Review
Juvenile delinquency proceedings are not criminal prosecutions, but are
special proceedings that serve as an alternative to the criminal prosecution of
children. In re J.A.L., 694 N.W.2d 748, 751 (Iowa 2005). We review juvenile
delinquency proceedings de novo, and questions of both law and fact are subject
to review. In re J.D.F., 553 N.W.2d 585, 587 (Iowa 1996). We give weight to the
factual findings of the juvenile court, but are not bound by them. In re S.C.S.,
454 N.W.2d 810, 814 (Iowa 1990).
III.
Analysis
Lynda‟s principal contention is that the juvenile court delinquency ruling
did not make the appropriate findings to substantiate a violation of the charged
offense, assault using a dangerous weapon, under sections 708.1 and 708.2(3)
(2007).3 We agree.
3
Section 708.1 defines the offense of assault as follows:
An assault as defined in this section is a general intent crime. A
person commits an assault when, without justification, the person does
any of the following:
1. Any act which is intended to cause pain or injury to, or which is
intended to result in physical contact which will be insulting or offensive to
another, coupled with the apparent ability to execute the act.
2. Any act which is intended to place another in fear of immediate
physical contact which will be painful, injurious, insulting, or offensive,
coupled with the apparent ability to execute the act.
3. Intentionally points any firearm toward another, or displays in a
threatening manner any dangerous weapon toward another.
5
In determining if there is substantial evidence, we consider all of the
evidence in the record, not just the evidence supporting a finding of guilt. State
v. Torres, 495 N.W.2d 678, 681 (Iowa 1993).
The genesis of the confusion was the delinquency petition itself, which
labeled the charge as “Assault Causing Injury.” That violation relates to section
708.2(2), a serious misdemeanor.4
The charged offense was section 708.2(3), which reads, “A person who
commits an assault, as defined in section 708.1, and uses or displays a
dangerous weapon in connection with the assault, is guilty of an aggravated
misdemeanor.” Section 702.7 defines “dangerous weapon” as:
[A]ny instrument or device designed primarily for use in inflicting
death or injury upon a human being or animal, and which is capable
of inflicting death upon a human being when used in the manner for
which it was designed. Additionally, any instrument or device of
any sort whatsoever which is actually used in such a manner as to
indicate that the defendant intends to inflict death or serious injury
upon the other, and which, when so used, is capable of inflicting
death upon a human being, is a dangerous weapon. Dangerous
weapons include, but are not limited to, any offensive weapon,
pistol, revolver, or other firearm, dagger, razor, stiletto, switchblade
knife, or knife having a blade exceeding five inches in length.
The State may meet its burden of proof on the dangerous weapon issue 5
by showing that the razor blade either falls within the first half of the definition,
i.e., that it was “designed primarily for use in inflicting death or injury,” or the
Section 708.2(2) provides, “A person who commits an assault, as defined in section
708.1, and who causes bodily injury or mental illness, is guilty of a serious
misdemeanor.”
5
It was conceded that the razor blade was not a dangerous weapon per se, those
weapons specifically included in the last sentence of section 702.7. Though “razor” is
referenced, it refers to a straight razor. See State v. Durham, 323 N.W.2d 243, 245
(Iowa 1982) (“[T]he term „razor‟ . . . is limited to the straight razor, a common shaving
instrument before invention of the safety razor but now used for shaving mainly in barber
shops”).
4
6
second half, which has two parts: (1) a “device of any sort whatsoever which is
actually used in such a manner as to indicate that the defendant intends to inflict
death or injury” and (2) when so used is capable of inflicting death upon a human
being.” Iowa Code § 702.7.
Whether the device falls within or outside these standards is a question of
fact. State v. Dallen, 452 N.W.2d 398, 399 (Iowa 1990).
The juvenile court found the requisite intent and an assault under section
708.1(2), “an act intended to place him in fear of immediate physical contact that
would be insulting or offensive, coupled with apparent ability to do the act . . . .”
Again, it concluded that the blade did not fall within the first half of section 702.7,
“razor blade . . . was not a device or instrument designed primarily for use in
inflicting death or injury . . . .” Lastly, the court found the State met the first part
of the second half of section 702.7, “actually used in such a way as to indicate
she intended to inflict a serious injury.”6 But the court then ended without a
finding that the razor blade met the second part of the second half of section
702.7, i.e. “when so used, is capable of inflicting death upon a human being . . . .”
6
Section 702.18 provides:
1. “Serious injury” means any of the following:
a. Disabling mental illness.
b. Bodily injury which does any of the following:
(1) Creates a substantial risk of death.
(2) Causes serious permanent disfigurement.
(3) Causes protracted loss or impairment of the function of
any bodily member or organ.
c. Any injury to a child that requires surgical repair and
necessitates the administration of general anesthesia.
2. “Serious injury” includes but is not limited to skull fractures, rib
fractures, and metaphyseal fractures of the long bones of children under
the age of four years.
7
The juvenile court did find an assault under section 708.1(3), finding
Lynda “intentionally displayed a dangerous weapon in a threatening manner
toward him,” as well as an assault under section 708.1(2). But these findings do
not assist the State‟s cause as there was no evidence that the blade was capable
of inflicting death when used in the way it was under these circumstances.
When a criminal case is tried to a court, a defendant may challenge the
sufficiency of the evidence on appeal, notwithstanding any question relating to
error preservation or whether a motion for judgment of acquittal was made.7
The only description of the razor blade was from Lynda, “It was from a
shaving razor, and it was like cut in half.” There was no testimony concerning its
length, its size, its brand, whether a double or single edge, or its material. The
girl who had given it to Lynda was not called to testify to its source or its
alterations. There was no testimony that, in this setting and when so used, it was
capable of “inflicting death upon a human being.”
See Iowa Code § 702.7.
Lynda did admit “[i]t can deeply injure somebody,” but the statute recognizes the
profound difference between “injury” and “death.”
In State v. Greene, 709 N.W.2d 535, 536 (Iowa 2006), steel shards (made
of sheet metal, approximately three-quarters of an inch wide at their base and
three inches long, tapered to a razor-sharp point) were propped up against the
victim‟s car tires, which flattened the tires when the car was moved. The Iowa
Supreme Court held that the shards did not meet the test found in the first half of
section 702.7, that they were not designed primarily to inflict injury or death.
7
A motion for judgment of acquittal was made, but it related solely to the intent issue.
See State v. Abbas, 561 N.W.2d 72, 74 (Iowa 1997).
8
Greene, 709 N.W.2d at 537-38. Nor did the shards meet the test of the second
half of section 702.7, as they were not actually used to inflict injury or death. Id.
at 538. The court did remark that
If the shards were held in the defendant‟s hand in a personal
confrontation with a victim, there would be little doubt that they
were dangerous weapons, as they would have been used in a
manner indicating an intent to kill or injure.
Id.
Greene corroborates the importance of our need to focus on the setting in
which the device is used. It was in a classroom with an instructor present. It was
inside a school building with a nurse on duty. It occurred at the close of class
when the students would be stirring, in mass, to leave. The juvenile court found
Lynda had been playing with the razor blade at her desk, and “[w]hen Skylar
noticed the razor blade, Lynda involved him in her play . . . she simulated or
mocked an attack with cutting gestures . . . .” It occurred while the participants
were sitting at adjoining desks. They were good friends. There was no motive,
with an immediate apology and assistance. It would be conjecture to conclude
that this razor blade, with its vague description and unknown detail, was used in
a manner capable of inflicting death. The proof of its death-producing qualities,
in this setting, did not meet the high burden for delinquency adjudications. The
evidence is insufficient to support the adjudication.
In Greene, the Iowa Supreme Court acknowledges that “Dangerous
weapons, in fact, can encompass almost any instrumentality under certain
9
circumstances.”8 Id. at 537 (emphasis added). The “circumstances” in this case
did not meet that challenge.9
There are other alleged errors urged for reversal, which we now decline to
consider, due to our ruling on the insufficiency of the evidence issue.
The entry of the adjudication of delinquency is reversed, the delinquency
petition is dismissed, and the dispositional order and conditions of probation are
annulled.
REVERSED.
The supreme court referenced “a stick, stone, hoe, or any one of many other
instruments . . . .” Greene, 709 N.W.2d at 537 (quoting 79 Am. Jur. 2d Weapons &
Firearms § 1, at 5 (2002)).
9
A razor blade, held at the throat, can be a dangerous weapon. Zehrung v. State, 573
P.2d 858, 860 n. 2 (Alaska 1978) (Burke, J., dissenting).
8
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