*1 Lеmke, Atty., Co. Atty., Scott Asst. Co. Iowa, appellee. for Appellee, GLEASON, Eugene Steven PER CURIAM. defendant, appeal by Eugene Steven Supreme Court Gleason, of his conviction of unlawful for the crime of second-dеgree theft raises two issues: required
whether the prove, State was offense, as an element of the cution had commenced before Gleason fled Iowa, and whether the trial court erred in its instructions on the elements of the offense and the definition of tion.” We affirm. January Schuler,
In 1986 Patricia Gleason, living reported Waterloo, police that he had assaulted her and that he had been involved of recent police number thefts. The obtained a search warrant for Gleason’s residence, they but before could execute it they received a call from In Gleason. the course of this conversa- tion, Gleasоn was advised the search war- requested had issued rant been and was meet the officers at his residence so it agreed could be served on him. He meet there. Gleason had not them hour, the arrived at the residence within an officers served the search warrant on his father, the house. While the who owned search, conducting the officers were telephoned son the residence. He was there, again requested to meet the officers so, stating do he but he declined to would day, police come to the station the next him Saturday. The officers then informed beginning he should wait until the week, investigating in on the weekend. would be 11, 1986, Saturday morning, January police telephoned the station is- ascertain whether a warrant sued for his arrest. He was informed issued, yet had not warrant Rogers, Acting Appellate Raymond E. probably arrested when he he would Defender, Anderson, M. Asst. and Barbara station. Gleason then came to Defender, appellant. Appellate Monday wait until indicated would in, Gen., Atty. Sheryl morning A. turn himself since he did Thomas J. Gen., Metcalf, Soich, spend jail. the wеekend Atty. Asst. James M. want *2 364
truth, avoid Gleason left for Colorado that week- “the commencement ... and continu A his arrest (to end. warrant for was ulti- ance of proceeding” a criminal use 29, mately issued on 1986. Glea- 801.4(12)) before Arvada, apprehended son was Colorado filing of complaint. Yeager a criminal See 17, May on and 4 Iowa Practice: Criminal Law 429 110 and § Gleason was thereafter convicted vio- (section 719.4(4) “is concerned the ac 719.4(4) lating (1985), Iowa Code section persons tivities of who not have been provides: charged offense”). But see Duna A flees from state to hoo, The New Iowa Criminal Code: public avoid offеnse 491, (1979-80) 29 Drake L.Rev. 610 aggravated felony which is a or misde- (strict 719.4(4) interpretation of felony. “D” meanor commits a class 801.4(12) light of section “means that a Gleason, noting 719 does chapter not aggra who commits a felоny or an vide a for the term vated misdemeanor will not this sec violate tion,” general definition asserts the found he flees commencement of before 801.4(12) applies. in section This section him”). Gleason’s provides: ” appears ig contention to to means the commence- “Prosecution nore the context in which “prose the term ment, including complaint, employed cution” is in section proceeding, and cоntinuance of a criminal pursuit and that final to used in a words statute should be judgment on of the state other behalf or given ordinary meaning, leg- their absent political subdivision. particular islative or a priate meaning in law. State v. (1985). Besseneck- It Iowa Code is Glea- er, 134, 136 State application son’s contention def- Bartusek, (Iowa v. N.W.2d 383 583 requires inition to section the State 1986). prohibits The statute otherwise prove, as an flight element оf unlawful act, when that act prosecution, underlying performed purpose, for an unlawful offense commenced the time the left Iowa. avoid 76 defendant See State v. 62, 66-67, N.M. 412 P.2d 243 ultimate goal interpreting Our statu- (under flight en- fеderal statute tory language give to ascertain and ef- tirely legal interstate travel becomes legislature. fect to the intention of the criminal when combined with intent Whetstine, v. prosecution). common, ordinary Conner, 292 avoid,” “to of the words when manner, prevent used “to statute, object we look be accom- or effectiveness occurrence of.” Webster’s remedied, plished, sought the evils to be or Dictionary Third International New subserved, purpose to and place (1971); American Heritage see also Dic- it a reasonable construction which will best (2d College 1982) (“to tionary keep ed. effect its rather than onе which away keep happening”). from” or “to Foster, defeat it. will Thus, flight form of unlawful one would be so, doing prevent that which was to even the occur- penal, statute is resolve doubts By definition, rence of of the fаvor accused. State type of 1980); flight would occur absence any previously filed complaint. criminal language in the Identical federal unlaw- the definition of similarly ful has been con- applies statute pеrsuaded prosecution’ strued: “The words ‘to avoid we are application being prosecuted.’ sug has the effect mean ‘to avoid gests. view, possible In our quite say pending it is statute ‘to does avoid a ” Bandо, prosecution.’ tions. contends this second United States Thus, (2d Cir.1957). F.2d was erroneous because it misstated the law is not limited to scope of the federal statute paragraph. and contradicted the first crossing wherе the offender’s cases contradictory The submission of delayed until after the of- state border is error, tions to the constitutes as there *3 fended state has commenced a way is no to tell which of the instructions Stаtes, Lupino 268 F.2d v. United Watts, jury the followed. State v. (8th Cir.1959); Bando, 843; 244 F.2d at (Iowa 1976); 588-89 66-67, 76 N.M. at P.2d at 243. Osmundson, 1976). However, interpreta- instructing We conclude the reasonable error in jury tion of section is that it does not does not necessitate reversal unless it require prove prejudicial. Gansz, the State to State v. had commenced before the defendant fled Seiler, Adoption of Gleason’s in- When error terpretation validity would allow of magnitude, is nоt of constitutional the test flight charge depend on wheth- prejudice sufficiently ap- of is whether it prosecutor race to the court- er could pears rights that the of the defendant have complaint house to file a formal faster than injuriously affected or that the de- could exit the state with knowl- the accused miscarriage jus- fendant has suffered a of edge filing. purpose of its The main of Gansz, 891; tice. encourage is to the accused Massey, 275 N.W.2d by exacting penalty to remain the state we are inclined to prosecution. Clearly to avoid with Gleason’s assertion the trial court sub by an inter- would be thwarted mitted an incorrеct definition of when a actually provided an incen- initiated, prosecution is we need not decide possible. flee as soon as In accord- tive to question. by If the court erred ance with our of seсtion 719.- confining “prosecution” its discussion of 4(4), jury we also conclude the trial court’s 801.4(12), the definition found instruction on the elements of the offense such error harmless in this case. was was correct. stated, already jury As did wе have A final issue is whether the court com- find a had com- not need to mitted reversible error un- menced in order to convict Gleason of “prosecution.” tion on the definition of flight. prosecu- the theft Whether instruсtion stated: filing tion commenced with the of a formal “Prosecution” means the commencement targeting of complaint or with the Gleason including of a criminal charges by intent to file with (a complaint of a formal statement guilt or innocence not material to Gleason’s affirmation, writing under oath or flight. Any jury of unlawful confusion magistrate made before a or other prejudiced this score would not have priate authоrity of the commission son’s case. accusing public offense and someone AFFIRMED. thereof). purposes For of Unlawful SNELL, except All Justices concur Flight prosecu- to Avoid Prosecution ANDREASEN, JJ., targeting of an tion is initiated authorities SNELL, (dissenting). Justice charges. the intent to file criminal respectfully I dissent. The notes that the first quotes approval our that doubt law this instruction tracks the of sec- para- penal statute is resolved the seсond graph appears to define as favor of the accused. State encompassing police investigative func- 299 N.W.2d boundaries, and without initiated inves- gainsays tigative totally separate applying lаw Thus, the guiding principle. prosecutorial personnel. parameters ute’s have shifted from a meaning penal Doubt as period prosecutorial setting to an earlier 719.4(4)makes it statute abounds. Section investigation. applying Instead of strict criminal offense liberally has construction the in- Yet not de- terpreted penal An act the statute. in na- Respected fined. commentators on crimi- ture, generally imposеs punish- one which to how disagree nal and when law ment for an offense committed under is committed the statute. interpreted strictly. State ex rel. Compare Yeager and 4 Iowa *4 Inc., Interplanetary, Turner v. Koscоt Law and Practice: Criminal Dunahoo, The New 29 Drake Code: Criminal reads statute that the (1979-80). may How L.Rev. crime is a committed when flees to ordinary an citizen know what this law commencement of a criminal means? cеeding. I the crime is believe committed a flees to avoid accepts argu- defendant’s which comes into existence after the ment definition that since no proceeding. commencement of a сriminal may tion” supplied 801.4(12). learn bar, proceed- In the case at no criminal looped by majori- analysis is then ings had been commenced defend- ty’s step. It reasons it matters ant when left Iowa for Coloradо. apply not whether sec- could not therefore have violated is, as to what ute as a matter of law. Defendant’s mo- it, trying since if defendant is tion to should have dismiss compound- committed. Doubt crime is sustained. I would rеverse. ed is reborn. ANDREASEN, JJ„ The majority’s blurs meaningful distinction between the join investigative
cutorial functions of
government. assiduously We have main-
tained
in law.
this distinction
See Burr v.
City
Rapids,
(Iowa 1979) (regarding prosecutor’s im-
munity liability). from civil With this inter- be committed without ever Iowa, Appellee, having enough It is commenced. to estаb- investigation lish the offense an is com- menced with evidence that combined HOVIND, Anthony Mark knowledge possi- defendant had and a ble of Iowa. Supreme Court sweep majority’s deci- broad ampli- sion is foretold the district court’s 23, 1988. fication of the The focus of the statute “target- under the court’s instruction is on
ing au- intent
thorities with the file criminal
charges.” thereby injects This instruction intent, subjective undefined element