Defendant appeals from his conviction of terrorism in violation of Iowa Code § 708.6 (1983). Because the trial court erred in sentencing him to a mandatory minimum sentence under section 902.7 we vacate the sentence imposed and remand the case for resentencing.
The defendant does not remember much about the early morning of January 16, 1982, but his neighbor and several Waterloo policemen certainly do. On that night, the defendant evidently became quite drunk before returning to his trailer home in Waterloo. He drove his car between the trailers and, in the process, woke up his next door neighbor, Carol Hesseltine, who was the manager of the park. Hesseltine called the defendant’s wife to see what was going on, and eventually called the Waterloo police. She then heard the defendant kicking her trailer and the glass in her bedroom window break.
After the police arrived, the defendant fired a few shots out of his trailer from his shotgun. One shot was fired into the snow *194 in front of his doorway, another' went through the trailer’s storm door into Hessel-tine’s trailer. A third shot blew out the headlight of defendant’s car. None of the shots seemed aimed at anyone in particular. Defendant’s wife escaped to the police, but defendant’s ten-month-old daughter remained in the trailer.
The police treated the affair as a hostage situation. Defendant shouted threats at the police who were finally able to convince him to surrender.
Section 708.6 provides:
A person commits a class “D” felony when the person, with the intent to injure or provoke fear or anger in another, shoots, throws, launches, or discharges a dangerous weapon at, into, or in a building, vehicle, airplane, railroad engine, railroad car, or boat, occupied by another person, or within an assembly of people, and thereby places the occupants or people in reasonable apprehension of serious injury or threatens to commit such an act under circumstances raising a reasonable expectation that the threat will be carried out.
Under the trial information defendant was charged with both alternatives of terrorism; but he was convicted only of the second [“threatening”] alternative. The trial court believed it was required to sentence pursuant to Iowa Code § 902.7 which provides that a person shall be ineligible for parole prior to serving at least five years if convicted for an offense which involved, in a prescribed manner, the use of a firearm. The trial court stated: “I will now state my reasons for imposing this sentence .... I have done so solely because I hold that the provisions of Iowa Code § 902.7 are mandatory. I do not find that this is an aggravated case.”
Under the evidence defendant might have been subject to section 902.7; but the jury was instructed to consider the charge only under the “threatens” alternative. The prosecutor and the trial court apparently believed this was required by an amendment to the statute. See 1981 Iowa Acts ch. 204 § 5. But see 4 J. Yeager & R. Carlson, Iowa Practice: Criminal Law and Procedure, § 181 at 21 (1983 Supp.).
In order for section 902.7 to apply here, two facts must have been proven beyond a reasonable doubt. The accused (1) must be guilty of a forcible felony and (2) must have represented that he or she was in the immediate possession and control of a firearm.
State v. Hellwege,
We have defined a “felonious assault” as “any assault the commission of which constitutes a felony.”
State v. Powers,
The question here then comes down to whether the “threatens to shoot” alternative of terrorism, which clearly is a felony, necessarily includes an assault. In
State v. Smith,
Under
Smith
the “threatening” form of terrorism does not constitute a felonious assault.
See State v. Webb,
SENTENCE VACATED. CASE REMANDED FOR RESENTENCING.