STATE OF IOWA, Plaintiff - Appellee, vs. ALFRED LEE LUCIUS , Defendant - Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 8-524 / 07-1445
Filed August 13, 2008
STATE OF IOWA,
Plaintiff-Appellee,
vs.
ALFRED LEE LUCIUS,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Dubuque County, Alan L. Pearson,
Judge.
Alfred Lucius appeals his judgment and sentence for first-degree robbery.
REVERSED AND REMANDED.
Mark C. Smith, State Appellate Defender, and Jason Shaw, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Mary E. Tabor, Assistant Attorney
General, Ralph Potter, County Attorney, and Christine Corken, Assistant County
Attorney, for appellee.
Considered by Miller, P.J., and Vaitheswaran and Eisenhauer, JJ.
2
VAITHESWARAN, J.
Alfred Lucius appeals his judgment and sentence for first-degree robbery.
Iowa Code §§ 711.1, .2 (2005). He argues his trial attorney was ineffective in
failing to move for judgment of acquittal on the ground that a BB gun is not a
dangerous weapon. We agree with Lucius that this issue requires reversal.
I. Background Facts and Proceedings
After Benjamin O’Malley and Walter Link finished their shifts at a bar and
grill in Dubuque, they decided to buy some marijuana. As they waited behind a
building, Lucius approached them and yelled “This is a bust.” O’Malley and Link
saw that Lucius was holding a gun. They heard a sound “like metal on metal”
and believed Lucius had cocked the gun. Lucius stated, “It’s Christmastime, I
need the money more than you guys do.” The two handed Lucius their money.
The Dubuque police executed a search warrant at Lucius’s apartment.
They found a plastic BB gun that looked like a Beretta pistol. It had a slide
function and was powered by spring-action. There were no BBs in the gun when
it was found and officers did not test it to see if it worked.
The State charged Lucius with two counts of first-degree robbery. See
Iowa Code §§ 711.1, .2. At the close of the State’s case and the close of the
evidence, Lucius made general motions for judgment of acquittal. The motions
did not specify the elements on which he believed there was insufficient proof.
The court denied the motions. A jury found Lucius guilty on both counts.
Lucius’s appellate attorney argues his trial attorney was ineffective in
“failing to argue that the State had failed to prove the BB gun was a dangerous
weapon during motion for judgment of acquittal.” Lucius separately reiterates
3
this argument and raises several other grounds for reversal.
We find it
unnecessary to address these other grounds except as they relate to the lesserincluded offense of second-degree robbery.
II. Analysis
Our framework for analysis is set forth in State v. Truesdell, 679 N.W.2d
611 (Iowa 2004).
“To preserve error on a claim of insufficient evidence for
appellate review in a criminal case, the defendant must make a motion for
judgment of acquittal at trial that identifies the specific grounds raised on appeal.”
Id. at 615 (citing State v. Crone, 545 N.W.2d 267, 270 (Iowa 1996)). Counsel’s
failure to preserve error at trial can support an ineffective-assistance-of-counsel
claim. Id. Such a claim “normally can be decided on direct appeal.” Id. at 616.
“[I]f the record . . . fails to reveal substantial evidence to support the convictions,
counsel was ineffective for failing to properly raise the issue and prejudice
resulted.” Id.
The jury was instructed as follows:
In order to convict Alfred Lucius of Robbery in the First Degree as charged
in Count I, the State must prove all of the following elements:
1. On or about December 19, 2006 the defendant had the specific
intent to commit a theft.
2. To carry out his intention the defendant threatened Benjamin
O’Malley with, or purposely put Benjamin O’Malley in fear of,
immediate serious injury.
3. The defendant was armed with a dangerous weapon.1
The jury was additionally instructed that
A “dangerous weapon” is any device or instrument designed
primarily for use in inflicting death or injury, and when used in its
designed manner is capable of inflicting death. It is also any sort of
instrument or device which is actually used in such a way as to
1
The same instruction was given with respect to Count II, involving Link.
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indicate the user intended to inflict death or serious injury, and,
when so used, is capable of inflicting death.
The State was required to show that the BB gun fit either the first half of the
definition (a “device designed primarily for use in inflicting death or injury”), or the
second half (“any sort of instrument or device which is actually used in such a
way as to indicate the user intended to inflict death or serious injury, and, when
so used, is capable of inflicting death.”). See State v. Greene, 709 N.W.2d 535,
537 (Iowa 2006).
With respect to the first half of the definition, the State argues “[a] fact
finder could infer that all BB guns are designed, for the most part, to inflict injury
on animals or humans.” The State did not present any evidence that the BB gun
was “designed primarily for use in inflicting death or injury.” Cf. State v. Dallen,
452 N.W.2d 398, 399 (Iowa 1990) (noting State presented expert testimony that
BB gun was capable of inflicting death upon a human being). In the absence of
expert testimony or other evidence on this design question, the jury had no basis
for finding that this alternative was satisfied.
The State faces the same proof problem with respect to the second half of
the definition, which included a requirement that the BB gun was “capable of
inflicting death.” Nothing in the record spoke to this question. Indeed, a police
officer testified that the gun was unloaded and had not been tested to see if it
was operable.
We conclude the jury’s finding of guilt on the first-degree robbery charges
was not supported by substantial evidence. “As a matter of law, counsel was
ineffective for failing to raise this issue and prejudice resulted.” Truesdell at 619.
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Lucius’s attorney asks us “to enter a conviction for the lesser included
offense of Robbery in the Second Degree.” Having found Lucius guilty of firstdegree robbery, the jury necessarily found him guilty of the lesser-included
offense of second-degree robbery. State v. Morris, 677 N.W.2d 787, 788-89
(Iowa 2004).
In his separate brief, Lucius does not expressly challenge the
sufficiency of the evidence supporting a finding of guilt on this lesser-included
offense. Assuming without deciding that those separate arguments could be
construed as challenges to a conviction on the lesser-included offense, we
summarily reject them.
We reverse and remand for entry of judgment and
sentence on the lesser-included offense of second-degree robbery.
Pace, 602 N.W.2d 764, 774 (Iowa 1999).
REVERSED AND REMANDED.
State v.
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