IN THE INTEREST OF D.L., Minor Child, D.L., Minor Child, Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 8-576 / 07-1998
Filed July 30, 2008
IN THE INTEREST OF D.L.,
Minor Child,
D.L., Minor Child,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Nancy S. Tabor
(adjudication) and John G. Mullen (disposition), Judges.
D.L. appeals from his adjudication as a delinquent following a finding he
committed first-degree robbery. REVERSED AND REMANDED.
Derek G. Jones, Davenport, for minor child.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney
General, Michael J. Walton, Acting County Attorney and Robert Cusack and Jay
Sommers, Assistant County Attorneys, for appellee.
Considered by Sackett, C.J., and Mahan and Vaitheswaran, JJ.
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VAITHESWARAN, J.
Sixteen-year-old D.L. was adjudicated a delinquent based on a finding that
he committed first-degree robbery.
He was committed to the State Training
School in Eldora, Iowa. He appeals, contending the record lacks a factual basis
to support the robbery finding. He also takes issue with his commitment to the
training school. We find it unnecessary to reach the second issue, as the first
issue requires reversal.
I. Background Facts and Proceedings
The State‟s complaint and affidavit alleged that D.L. and two others
stopped a bike rider in an alley. According to the affidavit, D.L. struck the rider,
went through his pocket, and took his property.
The affidavit stated D.L.
“removed a handgun from his waistband, putting the barrel to the victim‟s head
and threatening to shoot him.”
D.L. agreed to admit to the allegations in the petition.
Iowa Code
§ 232.43(2) (2007) (“The county attorney and the child‟s counsel may mutually
consider a plea agreement which contemplates entry of the plea admitting the
allegations of the petition . . . .”). Following a hearing, the district court found a
factual basis for the plea and adjudicated D.L. a delinquent child. See Iowa
Code § 232.43(5)(a) (“The court shall not accept a plea admitting the allegations
of the petition without . . . [d]etermining that there is a factual basis for the plea.”);
Iowa Code § 232.2(12)(a) (defining “delinquent act” as “[t]he violation of any state
law or local ordinance which would constitute a public offense if committed by an
adult except any offense which by law is exempted from the jurisdiction of this
chapter”).
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II. Analysis
Robbery is defined as follows:
A person commits a robbery when, having the intent to
commit a theft, the person does any of the following acts to
assist or further the commission of the intended theft or the
person‟s escape from the scene thereof with or without the
stolen property:
1. Commits an assault upon another.
2. Threatens another with or purposely puts another
in fear of immediate serious injury.
3. Threatens to commit immediately any forcible
felony.
Iowa Code § 711.1.
Robbery is classified as first-degree when, “while
perpetrating a robbery, the person purposely inflicts or attempts to inflict serious
injury or is armed with a dangerous weapon.” Iowa Code § 711.2.
D.L. contends “the factual basis statement provided by [him] in this case
fails to satisfy either the serious injury prong or the dangerous weapon prong of
the definition of Robbery 1st Degree and the juvenile court erred in accepting
[his] guilty plea.” In assessing this issue, we review the record de novo. In re
S.M.D., 569 N.W.2d 609, 610 (Iowa 1997). We may consider the issue for the
first time on direct appeal. See In re C.G.B., 643 N.W.2d 208, 210 (Iowa Ct.
App.2002).
“Serious injury” means any of the following: (1) disabling mental illness, (2)
bodily injury which creates a substantial risk of death, (3) bodily injury which
causes serious permanent disfigurement, and (4) bodily injury which causes
protracted loss or impairment of the function of any bodily member or organ.
Iowa Code § 702.18.
“Dangerous weapon” includes “any offensive weapon,
pistol, revolver, or other firearm . . . .” Iowa Code § 702.7.
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When the district court asked D.L. what happened, he stated:
We got to chasing him, and once he stopped, I seen it wasn‟t Lewis
[], I was going to let him go. Darvill got to chasing him—well, after I
let him go, Darvill hit him, and then he got off the bike. He thought I
hit him. He got to charging at me, and me and him got to wrestling
in the grass, and then I got to holding him, and then my cousin and
Darvill, they got to beating him up and kicking him and stomping on
him and stuff, and then afterwards—after I got up off the ground
and they got to fighting him and stuff and they went in his pockets
and took his stuff, and then I seen it wasn‟t Lewis, so then I got to
standing in the alley. I was watching out for „em and then when—
Seeking clarification on whether a gun was involved, D.L.‟s attorney engaged him
in the following exchange:
[Defense Counsel]: Maybe I should ask, Somebody [sic] had
a gun, didn‟t they, or something that was supposed to look like a
gun?
[D.L.]: Didn‟t nobody have a gun. They said that somebody
had a gun, but didn‟t nobody have no gun that I know of.
[Defense Counsel]: But there may have been a gun. If
another witness would testify that there was a weapon involved,
you might not have been aware of who that someone else was?
[D.L.]: When I was on the ground—
[Defense Counsel] Let me finish.
It‟s possible that
someone else had a gun that you didn‟t see, is that correct?
[D.L.]: Nobody had no gun that I knew of.
[Defense Counsel]: Well, that‟s not what I asked you. It‟s
possible someone did that you didn‟t see, is that correct?
[D.L.] Probably so.
After listening to this testimony, the district court summarized it as follows and
asked D.L. whether the summary was accurate:
What I heard you saying is that you are all after this guy,
once you figured out it was the wrong guy, you didn‟t leave, you
held on to him. The other guys were punching him and kicking him,
hurting him pretty bad, and then they stole his stuff, correct—
doesn‟t need to be a dangerous weapon—and then you were
watching out while they were stealing the stuff, right?
D.L. responded, “Yeah. Basically, yeah.”
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On the “serious injury” prong, the record establishes that the bike rider
was kicked, stomped, and beat up and that D.L. and the others hurt him “pretty
bad.” There is no indication that the bike rider was at a “substantial risk of
death,” sustained “serious permanent disfigurement,” or experienced “protracted
loss or impairment of the function of any bodily member or organ.” Iowa Code
§ 702.18(1)(b)(1), (2), (3). Accordingly, we conclude the record does not contain
a factual basis for the “serious injury” prong of first-degree robbery.
Turning to the “dangerous weapon” prong, D.L. was adamant that neither
he nor his associates had a gun.
At best, D.L. acknowledged there was a
possibility that someone might have had a gun that he didn‟t see. In our view,
that acknowledgement is insufficient to establish a factual basis for the presence
of a gun at the scene.
Based on this record, we conclude a factual basis for first-degree robbery
was lacking.
We turn to the State‟s alternate argument that, even if the record lacked a
factual basis for first-degree robbery, there was a factual basis for second-degree
robbery. See Iowa Code § 711.3 (defining second-degree robbery as all robbery
that is not first-degree robbery).
We are not convinced that this argument
comports with the statutory requirement to establish a factual basis for the plea
“admitting the allegations of the petition.” Iowa Code § 232.43(2). The petition
made no mention of second-degree robbery.
Accordingly, we conclude the
delinquency adjudication cannot be affirmed on this basis.
Because there was not a factual basis for D.L.‟s plea to first-degree
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robbery, we reverse the delinquency adjudication. We remand to give the State
an opportunity to establish a factual basis. State v. Schminkey, 597 N.W.2d 785,
792 (Iowa 1999).
REVERSED AND REMANDED.
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