STATE оf Iowa, Appellee, v. George Rudolph DITTMAR, Appellant.
No. 58277.
Supreme Court of Iowa.
March 17, 1976.
545
At the close of evidence defendant оffered a proposed instruction which would have permitted the jury to infer Krabacker‘s testimony was adverse to the State from the fact the State had not called him to rebut defendant‘s testimony.
The only issue raised by defendant-appellant asserts the trial court erred in refusing to give his requestеd instruction.
Under some circumstances the jury may draw an inference that the testimony of an uncalled witness would have been adverse to one оf the parties. However such a rule is to be applied with caution and there must be a reason for such a supposition and a factual area within which it may logically operate. The supposition must rise above the level of a mere possibility. No presumption arises when it is shown the witness is equally available to either party. State v. Thomas, Iowa, 162 N.W.2d 724, 728; State v. Parker, 261 Iowa 88, 100, 101, 151 N.W.2d 505, 513; 31A C.J.S. Evidence § 156(3); 29 Am.Jur.2d, Evidence, section 180.
The undisputed record that Krabacker‘s testimony was at least equаlly available to both defendant and the State is dispositive of defendant‘s claimed error. The trial court rightfully refused to give defendant‘s requested instruсtion.
AFFIRMED.
Richard C. Turner, Atty. Gen., Raymond W. Sullins, Asst. Atty. Gen., and Robert J. Curnan, County Atty., Dubuque, for appellee.
REES, Justice.
Defendant was charged by county attorney‘s information with the crime of operating a motor vehicle upon a public highway while under the influence of an alcoholic beverage in violation of
Defendant states for review two issues upon which he relies for reversal:
1) That the trial court erred in failing to state its reasons for sentencing the defendant to 90 days in jail; and
2) That under the circumstances presented, trial court exceeded its sound discretion in sentencing the defendant to 90 days in jail.
I. We implicitly rejected defendant‘s first argument [namely, that trial court erred in failing to state its reasons for sentencing the defendant to a jail tеrm] in State v. Horton, 231 N.W.2d 36, 39 (Iowa 1975). Although in Horton we noted that articulation by the sentencing court of the rationale undergirding a sentence would assist both the sentencing court and the apрellate court on review, we nonetheless adhered to the rule that where a sentence imposed is within the statutory limit, we will not interfere unless the record discloses an abuse of discretion. See State v. Banks, 213 N.W.2d 483, 486 (Iowa 1973); State v. Davis, 195 N.W.2d 677, 678 (Iowa 1972).
In connection with this issue, defendant cites McCleary v. State, 49 Wis.2d 263, 182 N.W.2d 512, in which case the Wisconsin court adopted Standard 2.3(c) of the American Bar Associаtion Standards Relating to Appellate Review of Sentences. We noted in Horton, supra, that although the Wisconsin court in McCleary stated the sentence it was considering appeared to bе the product of an abuse of discretion, it nonetheless recognized its obligation on appellate review “to search the record to determine whether in the exercise of proper discretion the sentence imposed can be sustained.” See 182 N.W.2d at 522.
More recently, in State v. Peckenschneider, 236 N.W.2d 344, 348 (Iowa 1975), we observed:
“In a long line of сases we have consistently said the determination of whether to sentence a defendant to jail or assess a fine rather than sentencing him tо imprisonment in the penitentiary is addressed to the sound discretion of the trial court.” (see citations).
While the matter before us involves an indictable misdemeanor, punishable by a fine or a jail term, our observations in Peckenschneider set out above are pertinent and applicable.
In light of our prior pronouncements, we must hold defendant‘s first issue stated for review is without merit.
The only elements in this case from which it might be inferred the trial court abused its discretion are the fact that the sentencing court failed to follow the recommendation of the assistant county attorney for minimum punishment and the fаct the court imposed a 90-day sentence in jail upon defendant.
It cannot be said that the failure of a sentencing court to follow the recommendation of a prosecuting attorney constitutes, per se, an abuse of discretion. The sentencing court was not bound by such recommendation. In Brainard v. State, 222 N.W.2d 711, 722 (Iowa 1974), a majority of this court suggested, inter alia, that a defendant who entered a plea of guilty be apprised of the fact the trial сourt was not bound by the recommendations of the prosecutor.
The imposition of a 90-day sentence in jail for the defendant here is not demоnstrative of an abuse of discretion.
III. The record indicates to us the sentencing court attempted to arrive at an individualized punishment based upon the record before it. While the entire transcript of the trial proceedings is not available to us here, since only the transcript of the sentencing proceedings was filed, there is reference in the record to the fact that at the time of defendant‘s arrest he was combative, profane and bellicose. In fact, in response to defendant‘s counsel‘s statement to the court at the sentencing proceedings that he and the county attorney‘s office had entered into “negotiations regarding this cаse and several others * * *,” and that the county attorney would recommend a minimum fine, the court said:
“May I interject here? I told the county attorney and city attorney that I had this case and I didn‘t want to be confounded with other cases that may come up here that might have something to do with this sentence, that I wanted to keep open-minded and impartial and free for this case.”
This indicates to us the sentencing court was cognizant of all оf the factors in the case and that he was thereby enabled to give individualized attention to the case in imposing sentence.
There was no indication of an abuse of discretion by the trial court and defendant‘s second issue stated for review is without merit.
We find no reversible error and affirm.
AFFIRMED.
MOORE, C. J., and LeGRAND, UHLENHOPP and HARRIS, JJ., concur.
MASON, RAWLINGS, REYNOLDSON and McCORMICK, JJ., dissent.
MASON, Justice (dissenting).
I agree with the court‘s statement in division II of its opinion dealing with the trial court‘s failure to follow the recommendation of the prosecuting attorney in imposing a sentence. However, I dissent for the reasons stated in the dissent in State v. Peckenschneider, 236 N.W.2d 344, 348-356 (Iowa 1975).
RAWLINGS, REYNOLDSON and McCORMICK, JJ., join in this dissent.