STATE of Iowa, Appellee,
v.
Romaul WASHINGTON, Appellant.
Supreme Court of Iowa.
Stаnford J. Patterson of the Patterson Law Firm, Waterloo, for appellant.
Thomas J. Miller, Atty. Gen., Roxanne Ryan, Asst. Atty. Gen., and David H. Corrеll, Black Hawk County Atty., for appellee.
Considered by LeGRAND, P. J., and UHLENHOPP, HARRIS, McCORMICK, and LARSON, JJ.
LARSON, Justice.
The defendant, Romaul Washington, was convicted of first-degree theft, §§ 714.1, 714.2, The Code 1979. On appeal, he contends the court erred in (1) denying his motion for judgment of acquittal, Iowa R.Crim.P. 18(10), (2) denying а requested instruction on prior inconsistent statements, and (3) denying his mistrial motion based upon alleged prosecutorial misconduct.
We view the evidence in the light most favorable to the guilty verdict. State v. Kern,
At trial the defendant moved for judgment of acquittal as to first-degree theft, asserting that while this act might be "theft" under section 714.1, The Code, it *423 was not a "theft from the persоn" so as to make it theft in the first degree under section 714.2(1). That section provides: "[t]he theft of property ... from the persоn of another ... is theft in the first degree." The trial court denied the motion and submitted the case to the jury with an instruction that "[t]he term `frоm the person' means not only from the actual body or clothing of the victim, but also means from her immediate presenсe and possession of or from her immediate charge and custody."
I. The scope of section 714.2(1). Two distinct approaches have been taken in interpreting statutes similar to section 714.2(1), the first requiring property to be taken "directly off" or "actually from" the victim, and thе second requiring only a taking from the immediate presence of the victim. See W. LaFave A. Scott, Criminal Law 695 (1972); 3 Wharton's Criminal Law § 369, at 347 (C. Torcia ed. 1980); 2 Wharton's Criminal Law and Procedure § 502, 175-76 (R. Anderson ed. 1957); Annot., Larceny "From a Person,"
Here the property was in the possession and immediate presencein the immediate charge and custodyof [the victim.] We think the taking, under the testimony, was away from, though not actually off, her person. She was at the moment carrying it оn the automobile seat beside her. The jury could find it was stolen from her person.
Id. at 1172-74,
Subsequently, in State v. Marsan,
If we assume the truth of her statement that the billfold was taken from the sidewalk at [the victim's] feet (after it mysteriously fell from his pocket) the charge [under § 709.6, The Code 1973] would nonetheless lie. The property absent the thieves' intervention, was in the possession and immediate presence, charge and custody of [the victim].
Id. at 280 (emphasis added).
The defendant asks us to reexamine the holding of these cases, especially in view of the wording changе in the statute. Kobylasz and Marsan were decided under the old larceny-from-the-person statute, § 709.6, The Code 1950, 1973, which prohibited "stealing from the person of another." In 1978 the statute was rewritten as part of the new criminal code, and "theft" was substituted for "stealing." We do nоt view this as a substantive change but one made to achieve uniform terminology in the new code. We believe this change is of no significance as to this issue. If the legislature had intended to limit the scope of our previous statute as interprеted by Kobylasz and Marsan, it could have easily done so. It apparently chose not to. Policy considerations also suggest it did not intend to change the law: theft from the victim's area of control, because of its potential for physical confrontation with the thief, could logically be seen as justifying an enhanced penalty.
We conclude the trial court propеrly submitted first-degree theft.
II. "The prior inconsistent statement." During the trial one of the arresting officers testified on direct examination:
As we were handcuffing [the defеndant a billfold] fell from the front part of his clothing, fell to the ground between his feet.
Q. Do you know where [the billfold] came from ...?
A. It came from his person, that's all I can say.
* * * * * *
It fell directly between his feet where he was ... standing when we handcuffed him.
On redirect examination the witness elaborated:
*424 Q. [W]hen you say that it fell did you notice it fall or
A. No, I just heard it. I was to the rear so I had no vision.
Counsel for the defendant continued this line of questioning оn recross-examination:
Q. [Y]our direct testimony was that you saw [the billfold] fall from his person. You didn't see it fall from the person nоw. Which is it?
A. I heard it hit the ground.
* * * * * *
Q. But your direct testimony you said you saw it fall. That was incorrect; is that correct?
A. Right.
In light of this "conflict" in the witness' testimony the defendant requested that the trial court instruct the jury on the witness' "prior inconsistent statement." See State v. Gilmore,
However, an instruction on a prior inconsistent statement is warranted only if the statement was made in аdvance of trial. See State v. Cuevas,
III. Prosecutorial misconduct. After the State's closing argument the defendant moved, unsuccessfully, for mistrial, arguing that the prosecutor made an improper argumеnt in two particulars: that he commented "beyond the scope of rebuttal," and that he "elicited a promise" from the jury. These grounds are reasserted on appeal.
The challenged argument was not reported, and the defendant made no attempt to make a record of it by a supplemental statement of the proceedings under Iowa Rule of Appellate Procedure 10(c). Under the circumstances, we will not speculate as to what was said. A trial court has broad discretion in ruling on motions for mistrial. See State v. Cuevas,
AFFIRMED.