STATE OF IOWA, Plaintiff-Appellee, vs. ROBERT LEE KIRK, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 7-433 / 06-1705
Filed July 25, 2007
STATE OF IOWA,
Plaintiff-Appellee,
vs.
ROBERT LEE KIRK,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Michael D. Huppert,
Judge.
The defendant appeals from the judgment and sentence entered following
his guilty plea to third-degree burglary. JUDGMENT AFFIRMED, SENTENCE
VACATED AND REMANDED FOR RESENTENCING.
Mark C. Smith, State Appellate Defender, and Martha J. Lucey, Assistant
State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Thomas S. Tauber, Assistant Attorney
General, John P. Sarcone, County Attorney, and Justin Allen, Assistant County
Attorney, for appellee.
Considered by Huitink, P.J., and Zimmer and Vaitheswaran, JJ.
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VAITHESWARAN, J.
Robert Kirk pled guilty to third-degree burglary. At the sentencing hearing,
the State recommended imprisonment. After defense counsel and Kirk spoke in
favor of a lesser punishment, defense counsel made the following request:
Your Honor, along with that we have Theresa Bolan, who is
his case worker that was going to speak on our behalf, on his
behalf, but she left the courtroom to put money in the meter. And if
the Court would give us a few minutes, I believe she should be able
to return and make some positive comments.
The district court denied the request, stating:
I don’t think that will be necessary. I’ve had a chance to
review the presentence investigation report and believe that its
recommendation is appropriate under the circumstances.
Ordinarily a person of Mr. Kirk’s age and relative lack of criminal
history and everything else that’s presented in this case would
justify a suspended sentence and probation. However, as Mr. Allen
has properly noted, those opportunities have all been afforded Mr.
Kirk for a number of years.
I cannot think of a single option that wasn’t addressed
throughout, Mr. Kirk, your participation in the Youthful Offender
Program. And I am sure that similar statements to those made
today on your behalf were made at the various stages of your
probation – or, excuse me, your participation and failure through
that YOP program.
I don’t – by ruling today, I don’t believe that rehabilitation is
impossible, but I believe that the experience of incarceration and
the loss of that liberty is what needs to be experienced to afford you
the chance to decide whether you want to act the way you’ve acted
over the last two or three years or turn things around.
Kirk was sentenced to a term of imprisonment not exceeding five years.
On appeal, Kirk asserts the district court abused its discretion in
disallowing the testimony of the case worker. The State counters that Kirk’s
attorney did not create an adequate record for review because he failed to make
an offer of proof.
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Addressing the State’s contention first, the pertinent rule of evidence
provides:
Error may not be predicated upon a ruling which admits or
excludes evidence unless a substantial right of the party is affected,
and either of the following exists:
...
In case the ruling is one excluding evidence, the substance
of the evidence was made known to the court by offer or was
apparent from the context within which questions were asked.
Iowa R. Evid. 5.103(a)(2). We are not persuaded that an offer of proof was
necessary as the nature of the testimony was apparent from defense counsel’s
statements. Specifically, counsel identified the witness as Kirk’s “case worker,”
stated she intended to speak “on [Kirk’s] behalf,” and said she would make
“some positive comments.” It is clear, therefore, that the proposed testimony
was from a knowledgeable source and was directed to reducing Kirk’s
punishment. We conclude the record is adequate for our review. Cf. State v.
Greene, 592 N.W.2d 24, 28 (Iowa 1999) (holding error is not preserved without
an offer of proof “unless the whole record makes apparent what is sought to be
proven”).
Turning to the court’s decision to exclude the proposed testimony, we note
that the testimony went to the key sentencing issue: whether imprisonment or a
lesser punishment was warranted. See Iowa Code § 901.5 (2005) (instructing
court to receive and examine “all pertinent information” before imposing
sentence). Additionally, Kirk was not requesting a formal continuance to present
the information but merely a “few more minutes” while the witness plugged her
parking meter. Cf. State v. Artzer, 609 N.W.2d 526, 531 (Iowa 2000) (stating
“the symmetry afforded the trial process precludes unnecessary delay in
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sentencing”). Finally, as the presentence investigation report made no mention
of this particular witness, the proposed testimony was not cumulative. For these
reasons, we conclude Kirk’s witness should have been allowed to testify prior to
sentencing.
JUDGMENT AFFIRMED, SENTENCE VACATED AND REMANDED
FOR RESENTENCING.
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