STATE OF IOWA, Plaintiff-Appellee, vs. VICTOR SERRATO, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-323 / 08-0859
Filed June 17, 2009
STATE OF IOWA,
Plaintiff-Appellee,
vs.
VICTOR SERRATO,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Muscatine County, Mark J. Smith,
Judge.
Victor Serrato appeals following his convictions and sentences for firstdegree murder and nonconsensual termination of a human pregnancy.
REVERSED AND REMANDED FOR DISMISSAL.
Mark C. Smith, State Appellate Defender, and Theresa R. Wilson,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sheryl A. Soich and Laura M. Roan,
Assistant Attorneys General, Gary R. Allison, County Attorney, and Alan R.
Ostergren, Assistant County Attorney, for appellee.
Heard by Vaitheswaran, P.J., and Potterfield and Doyle, JJ.
2
DOYLE, J.
Victor Serrato appeals his convictions of first-degree murder in violation of
Iowa Code sections 707.1 and 707.2(1) (2005), and nonconsensual termination
of a human pregnancy in violation of section 707.8(4).
Among other things,
Serrato contends the State did not establish the requisite territorial jurisdiction to
prosecute him in Iowa.
Because we agree the State did not establish the
requisite territorial jurisdiction to prosecute him in Iowa as a matter of law, we
reverse and remand for dismissal.1
I. Background Facts and Proceedings.
On January 17, 2007, Victor Serrato was charged by an amended trial
information with murder in the first degree and nonconsensual termination of a
human pregnancy for the death of Miriam Carmona and her unborn child.
Viewed in the light most favorable to the State, the jury could have found the
following facts:
On the evening of Saturday, October 21, 2006, Carmona was at the
Escorpion Bar in Muscatine, Iowa.
pregnant at that time.
Carmona was approximately six-months
She had been involved in a sexual relationship with
Serrato earlier that year.
Just after midnight on the 22nd, Serrato‟s girlfriend Angelica Chavez, who
was pregnant with his child, arrived at the bar with her friend Esmerelda Perales.
Carmona told Chavez that Serrato had fathered both women‟s children.
Carmona and Chavez began arguing, and the fight got physical.
1
Carmona
Because our determination of this issue is dispositive, we need not and do not address
Serrato‟s additional claims.
3
slapped Chavez and pulled Chavez‟s hair and tried to kick Chavez. The fight
was broken up, and Chavez and Perales left the bar.
Chavez was upset by the fight and Carmona‟s assertions. Both Chavez
and Perales tried calling Serrato from their cell phones, but he did not answer,
and their calls were forwarded to his voicemail. At that time, Serrato was at a
dance in West Liberty. Chavez‟s phone died. Perales then received a call from
Serrato and she told him about Carmona‟s actions.
After talking to Perales,
Serrato drove to Muscatine and met Chavez and Perales at Chavez‟s house.
Serrato was upset but not angry when he arrived at around 1:00 a.m. Chavez
told Serrato that if he was the father of Carmona‟s baby, he had better take care
of it. Serrato denied the baby was his, but told Chavez he would take care of
Carmona‟s baby if it was his.
Approximately ten minutes after arriving at
Chavez‟s house, Serrato went to the Escorpion Bar, located a few blocks from
the house, to find Carmona.
Between 1:30 and 1:45 a.m., Carmona‟s friend Marciela Garcia drove by
the Escorpion Bar with her friend Dago and three other passengers. Garcia and
another passenger observed Carmona and Serrato arguing in the Escorpion Bar
parking lot, standing on opposite sides of a black pickup truck. Garcia pulled into
the parking lot, got out of her car, and asked Carmona what was going on.
Garcia could tell Carmona had been crying.
Carmona told her that Serrato
denied he was the father of her child. Serrato asked Carmona if she was sure he
was the father, and Carmona began hitting Serrato. She smacked Serrato on the
side of his face with her cell phone. She kicked him on the leg. Serrato grabbed
Carmona‟s hands, and pushed Carmona away. Garcia‟s friend Dago got out of
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Garcia‟s car and broke up the fight, knocking Serrato to the ground. Dago told
Serrato, “You‟re never to hit a woman when—especially when she‟s pregnant.”
Because Garcia did not want the police summoned, she told Carmona she would
be right back and dropped Dago off down the street.
She and her other
passengers returned to the Escorpion Bar two or three minutes later, but
Carmona was not there. Serrato and the black truck were also gone. Garcia did
not see Carmona again.
Both Perales and Chavez said Serrato was gone from the house for about
twenty to thirty minutes after leaving for the bar. Perales left shortly after Serrato
returned to the house. According to Chavez, Serrato spent the rest of the night
at her house and that they slept in until about 1:00 p.m. the next afternoon.
At approximately 6:30 p.m. on October 22, 2006, Carmona‟s body was
discovered by passersby in a ditch approximately forty-seven feet from the side
of a road in Rock Island County, Illinois, not far from the Iowa-Illinois bridge.2 A
plastic bag was found next to her head, and her hair was entrapped in a portion
of the bag.
An autopsy was performed in Rockford, Illinois, by pathologist Dr. Mark
Peters. He opined that the cause of Carmona‟s death was asphyxia due to
manual strangulation and that the fetus died as a result of its mother‟s death. He
further opined that Carmona‟s death was a homicide and that based upon lividity,
Carmona would have been dead before 3:00 to 6:00 p.m. He testified that her
death theoretically could have occurred as early as 2:00 a.m. or as late as
6:00 a.m.
2
Rock Island County, Illinois, is directly across the Mississippi River from Muscatine.
5
A homicide investigation was initiated, and Serrato was interviewed
several times during the course of the investigation.
The plastic bag found
entrapped in Carmona‟s hair was swabbed and sent for testing. No fingerprints
were found on the bag; however, dried blood flakes were found inside the plastic
bag. The flaked blood contained a mixture of DNA from two different sources, at
least one of which was blood. The DNA matched the known DNA profiles of both
Serrato and Carmona. It was also determined that Serrato was not the father of
Carmona‟s baby.
The State charged Serrato by an amended trial information with murder in
the first degree in violation of Iowa Code sections 707.1 and 707.2(1), and
nonconsensual termination of a human pregnancy in violation of section
707.8(4). Serrato moved to dismiss arguing the State failed to establish territorial
jurisdiction. The motion was denied. A jury trial followed.
After the State rested its case, Serrato moved for a verdict of acquittal.
Among other things, Serrato argued the State failed to produce sufficient
evidence to prove that any part of the offenses took place in Iowa. The State
resisted, arguing there was evidence from which the jury could conclude that
Serrato‟s murderous intent, premeditation, and malice aforethought were formed
in Iowa by reason of his conversation with Chavez and the circumstances of his
fight with Carmona outside the Escorpion Bar. The State also argued there was
physical evidence suggesting the death occurred in Iowa.
The district court
denied Serrato‟s motion, finding there was sufficient evidence to indicate the
malice aforethought and/or premeditation by Serrato was formed at the time of
his altercation with Carmona in the parking lot of the Escorpion Bar.
6
The jury found Serrato guilty as charged.
Thereafter, Serrato filed a
motion in arrest of judgment and a motion for a new trial, asserting the evidence
was insufficient to convict him of the charges and that the evidence was
insufficient to establish the crimes took place in Iowa. The court denied the
motions. Serrato was sentenced to life imprisonment for the first-degree murder
conviction and an indeterminate term of imprisonment not to exceed twenty-five
years for the nonconsensual termination of a human pregnancy conviction.
Serrato appeals.
II. Discussion.
On appeal, Serrato contends the State did not establish the requisite
territorial jurisdiction to prosecute him in Iowa. He first argues that the element of
intent is not “conduct” within the meaning of our territorial jurisdiction statute,
Iowa Code section 803.1, and thus intent alone is not sufficient to subject him to
Iowa‟s jurisdiction. Additionally, he argues the State did not present sufficient
evidence to prove he formed any criminal intent while in Iowa.
We review
jurisdictional claims for errors of law. Iowa R. App. P. 6.4; State v. Wedebrand,
602 N.W.2d 186, 188 (Iowa Ct. App. 1999).
A. Use of Element of Intent to Invoke Territorial Jurisdiction.
“Generally, jurisdiction necessary to prosecute a public offense rests in the
courts of the state where the offense was committed.” Wedebrand, 602 N.W.2d
at 189 (citing State v. Liggins, 524 N.W.2d 181, 184 (Iowa 1994)).
Iowa‟s
criminal jurisdiction statute, patterned in part upon the Model Penal Code, is
codified in Iowa Code section 803.1. State v. Wagner, 596 N.W.2d 83, 86 (Iowa
1999). Section 803.1 provides, in relevant part:
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1. A person is subject to prosecution in this state for an offense
which the person commits within or outside of this state, by the
person‟s own conduct or that of another for which the person is
accountable, if:
(a) The offense is committed either wholly or partly within this
state.
....
2. An offense may be committed partly within this state if conduct
which is an element of the offense or a result of which constitutes
an element of the offense occurs within this state. . . .
Iowa Code § 803.1 (emphasis added).3
To ascertain whether territorial
jurisdiction exists in Iowa, the court must examine the facts of the case “to
determine whether conduct or a result of conduct constituting an element of the
crime . . . took place in Iowa.” Wagner, 596 N.W.2d at 86.
Chapter 803 does not define the word “conduct” as used in section 803.1.4
However, the definition of “conduct” as stated in the Model Penal Code is helpful
in interpreting our statute. See generally State v. Hogrefe, 557 N.W.2d 871, 877
(Iowa 1996) (noting that our theft by deception statute, section 714.1(3), was
based in part on the Model Penal Code and that “the Model Penal Code
commentaries on the definition are persuasive authority in our interpretation of
our own theft by deception statute”). Under the Model Penal Code, “„conduct‟
means an action or omission and its accompanying state of mind, or, where
relevant, a series of acts and omissions.” Model Penal Code § 1.13(5) (1962)
(emphasis added).
3
Although one‟s intent without any accompanying action
Section 803.1(2) further provides: “If the body of a murder victim is found within the
state, the death is presumed to have occurred within the state.” Because the body was
found in Illinois, this statutory provision is not applicable to establish territorial jurisdiction
in Iowa. We note that Illinois has a similar statute. See 720 Ill. Comp. Stat. Ann. 5/15(b) (West 2009) (“[I]f the body of a homicide victim is found within the State, the death
is presumed to have occurred within the State.”).
4
The word “conduct” is not defined in chapter 702, nor is it defined in section 801.4.
8
would be insufficient to establish “conduct” under the Model Penal Code, an
action evidencing one‟s intent does satisfy the “conduct” definition.
We find support for the Model Penal Code definition in our general
principles concerning proof of the element of intent. The Iowa Supreme Court
has observed:
Intent is a state of mind difficult of proof by direct evidence. It may,
however, be established by circumstantial evidence and by
inferences reasonably to be drawn from the conduct of the
defendant and from all the attendant circumstances in the light of
human behavior and experience.
State v. Casady, 491 N.W.2d 782, 787 (Iowa 1992) (citations omitted). Proof of
intent may be inferred by conduct.
We also find support for the Model Penal Code definition in our case State
v. Wedebrand, 602 N.W.2d at 187. In Wedebrand, the victim was abducted and
driven out to a rural Iowa location. Id. There, Wedebrand, Luis Lua, and others
bound, gagged, and repeatedly beat the victim. Id. Lua pointed a gun at the
victim, but did not shoot the victim after someone stated “not here.”
Id.
Wedebrand, Lua, and others placed the victim in the truck of their car and then
drove the victim to Minnesota. Id. While driving, Lua told Wedebrand and the
others he had enough ammunition for each of them to shoot the victim.
Id.
Wedebrand, Lua, and the others took the victim to an abandoned farmstead in
Minnesota where Wedebrand shot the victim in the hip and Lua fatally shot the
victim in the head. Id. Wedebrand was charged with first-degree murder and
first-degree kidnapping in the victim‟s death.
Id.
Wedebrand guilty of first-degree murder. Id. at 188.
Ultimately, the jury found
9
On appeal, Wedebrand claimed that the victim was shot and died in
Minnesota, and thus the State lacked territorial jurisdiction.
Id. at 189.
Wedebrand argued, as Serrato argues now, the remaining elements of
premeditated murder, malice aforethought, and specific intent to kill, were not
predicate conduct implicating Iowa‟s jurisdiction under sections 803.1(1) and
803.1(2). Id. Our court disagreed, noting that “[p]roof of the requisite intent or
malice aforethought may be accomplished by inferences made from the acts and
conduct of the defendant and the means used in doing the wrongful and injurious
acts.” Id. (citing State v. Olson, 373 N.W.2d 135, 136-37 (Iowa 1985) (citations
omitted); State v. Nunn, 356 N.W.2d 601, 603 (Iowa Ct. App. 1984)).
We
concluded:
We are unable to reconcile Wedebrand‟s argument with the
plain language of [section 803.1(1) and (2)]. Section 803.1
expressly provides for prosecution of offenses committed partially
within or outside of Iowa. As an alleged aider and abettor,
Wedebrand was subject to prosecution in Iowa under the “conduct
. . . of another for which the person is accountable” language of
section 803.1. Moreover, evidence of Wedebrand‟s presence,
encouragement, and participation in [the victim‟s] beating in Iowa is
conduct from which the principal‟s specific intent to kill, malice
aforethought, and Wedebrand‟s knowledge thereof may be inferred.
Because Wedebrand can be held accountable for conduct in Iowa
which constitutes an essential element of first-degree murder,
Iowa‟s territorial jurisdiction to prosecute this offense was properly
invoked.
Id. at 189-90. Thus, we determined that when a person‟s state of mind, i.e.,
knowledge, intent, or malice aforethought, is an essential element of the crime
charged, actions by that person occurring within Iowa which infer his or her state
of mind constitute conduct upon which the requirements of section 803.1 are
satisfied. Id.
10
Serrato cites State v. Wagner, 596 N.W.2d 83 (Iowa 1999), to suggest
one‟s intent does not describe “conduct” as contemplated by section 803.1. In
Wagner, Wagner was convicted in Iowa for an escape that occurred in Texas
while he was being transported from the Iowa State Penitentiary to a prison in
New Mexico. Id. at 85. On appeal, Wagner argued that none of the elements of
the offense of escape, Iowa Code section 719.4 (1999), constituted conduct to
subject him to Iowa‟s territorial jurisdiction. Id. The State argued that because
Wagner‟s underlying felony occurred in Iowa, the first element of escape, “[a]
person convicted of a felony,” took place in Iowa, subjecting Wagner to Iowa‟s
territorial jurisdiction.
Id. at 86.
The court disagreed, determining the first
element did not describe “„conduct,‟ as contemplated by section 803.1(2)” but
rather described a “status.” Id.5
Wagner is distinguishable from the present case. Wagner did not address
the question of whether the element of intent was “conduct” within the meaning of
section 803.1. Unlike one‟s status, proof of one‟s intent is inferred from conduct;
one‟s status simply is.
We conclude the proper definition of “conduct” is the one found in the
Model Penal Code, and agree with our earlier conclusion in Wedebrand that
under the language of section 803.1, conduct in Iowa establishing intent is
sufficient to subject a defendant to Iowa‟s territorial jurisdiction.
5
In making this determination, our supreme court compared the definitions of “conduct”
and “status” as found in the Webster‟s Third New International Dictionary. See Wagner,
596 N.W.2d at 86. Webster‟s Third New International Dictionary defines “conduct” as
“behavior in a particular situation or relation or on a specified occasion.” Webster‟s Third
New Int‟l Dictionary 474 (unabr. ed. 1993). “Status” is defined as “the condition (as
arising out of . . . crime . . . ) of a person that determines the nature of his legal
personality, his legal capacities, and the nature of the legal relations to the state.” Id. at
2230.
11
B. Sufficiency of the Evidence to Invoke Territorial Jurisdiction.
Serrato further argues that even if the intent element alone is sufficient to
subject a defendant to Iowa‟s territorial jurisdiction, the State failed to present
sufficient evidence to prove he had the specific intent to kill and malice
aforethought in Iowa to invoke the state‟s territorial jurisdiction.6 The evidence
relied upon by the State to establish territorial jurisdiction was that Serrato‟s
actions of returning to Muscatine after speaking with Chavez and then
confronting and arguing with Carmona in Iowa supported the inference that he
had formed the requisite intent and malice in Iowa to kill Carmona. The State
argues this evidence is similar to the evidence of the Wedebrand case. We
disagree.
As stated above, in Wedebrand, an aiding and abetting case, Wedebrand
participated in beating the victim in Iowa. Wedebrand, 602 N.W.2d at 187. A
gun was pointed at the victim in Iowa, but the victim was not shot after someone
stated “not here.”
Id.
Wedebrand helped place the victim in the car and
transport the victim to Minnesota, where Wedebrand shot the victim and another
person shot the victim fatally. Id. Wedebrand‟s participation in these events in
Iowa, i.e., his conduct, evidenced his intent to participate in the victim‟s murder.
Id.
6
Iowa Code section 707.1 provides: “A person who kills another person with malice
aforethought either express or implied commits murder.” Section 707.2(1) provides: “A
person commits murder in the first degree when the person commits murder under any
of the following circumstances: (1) The person willfully, deliberately, and with
premeditation kills another person.” Section 707.8(1) provides: “A person who
terminates a human pregnancy without the consent of the pregnant person during the
commission of a forcible felony is guilty of a class „B‟ felony.” (Murder is a “forcible
felony” under section 702.11(1)). In this case, murder was the predicate offense for the
termination of pregnancy offense.
12
Here, all we have is evidence of Serrato‟s return to Muscatine after
Carmona and Chavez fought and Serrato‟s confrontation with Carmona at the
Escorpion Bar. After being told of Carmona‟s altercation with Chavez and of her
allegations that she was carrying Serrato‟s child, Serrato was upset but not angry
when he arrived at Chavez‟s house. Upon confronting Carmona at the Escorpion
Bar, the witnesses‟ accounts of this fight state that Serrato acted defensively,
trying to stop Carmona from hitting him. An intent to kill may not be inferred from
this conduct. We find, as a matter of law, that the inferences to be reasonably
drawn from Serrato‟s conduct, and from all the attendant circumstances in the
light of human behavior and experience, do not establish beyond a reasonable
doubt that Serrato formed the specific intent to kill Carmona, or the requisite
malice aforethought, premeditation, or deliberation.
We note the State also argues there was substantial evidence from which
the jury could have inferred that Serrato actually killed Carmona in Iowa and
transported her over the Illinois line only to dispose of her body. The State
argues the existence of the plastic bag found entangled in Carmona‟s hair
suggests that Serrato murdered her before taking her body from Iowa to its
Illinois resting place. The State argued this evidence suggested the bag was
placed over Carmona‟s head to contain blood from her facial injuries as her body
was transported from the site of the murder to the location where it was found.
Even if we accept this speculation to be true, the evidence does not establish
from where the body was transported or that the murder occurred in Iowa. Many
suggestions can be spun from the evidence presented at trial, but none of the
13
evidence, including the plastic bag, establishes Carmona‟s murder occurred in
Iowa.
Consequently, we must conclude as a matter of law that the State failed to
present sufficient evidence to invoke the state‟s territorial jurisdiction.
III. Conclusion.
Because we conclude the element of intent alone is sufficient to invoke the
state‟s territorial jurisdiction, but conclude the State failed to present sufficient
evidence to prove Serrato had the specific intent to kill and malice aforethought
while he was in Iowa to invoke the state‟s territorial jurisdiction, we reverse and
remand for dismissal.
REVERSED AND REMANDED FOR DISMISSAL.
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