                    IN THE COURT OF APPEALS OF IOWA

                                   No. 15-0289
                               Filed May 11, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

KISHA RENEE ROCKWOOD,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Scott County, Mark D. Cleve,

Judge.



      Defendant appeals the district court’s refusal to instruct the jury that

contributing to the delinquency of a minor is a lesser-included offense of using a

juvenile to commit theft.   AFFIRMED IN PART, VACATED IN PART, AND

REMANDED.



      Mark C. Smith, State Appellate Defender, and Rachel C. Regenold,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Kevin R. Cmelik and Jean C.

Pettinger, Assistant Attorneys General, for appellee.



      Considered by Danilson, C.J., and Mullins and McDonald, JJ.
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MULLINS, Judge.

       The sole issue in controversy on this appeal is whether the district court

erred when it refused Kisha Rockwood’s request to instruct the jury that

contributing to the delinquency of a minor was a lesser-included offense of using

a juvenile to commit theft of property.           She also contends, and the State

concedes, the assessment to her of court costs for dismissed counts 2 and 5 was

in error. We affirm in part, vacate in part, and remand.

       I.      Background Facts and Proceedings1

       While Rockwood was using a self-checkout register to scan grocery items

at a retail store, M.R., her ten-year-old son, placed some hubcaps in a bag

without scanning them, and the two left the store without paying for the hubcaps.

On another occasion, while Rockwood, M.R., and K.R., her thirteen-year-old

daughter,2 were in the infants section of a retail store, K.R. placed a stroller in

their shopping cart. When Rockwood was at the customer service desk, K.R.

pushed the cart out of the store without paying for the stroller. K.R. and M.R.

came back into the store and went to the electronics department with Rockwood.

Rockwood placed a printer in a cart. While Rockwood went to the service desk

again, K.R. pushed the cart out of the store without paying for the printer.




1
  We have focused the recitation and analysis of the facts to those most relevant to
deciding the sole issue in controversy: the district court’s failure to instruct the jury on
contributing to the delinquency of a minor.
2
  K.R. testified her grandmother raised her and she thought of Rockwood as a sister, not
her mother.
                                             3



         The jury found Rockwood guilty of two counts of using a juvenile to

commit theft, using M.R. once and K.R. once.3 She has appealed, arguing the

jury should have been instructed that contributing to the delinquency of a minor

was a lesser-included offense of using a juvenile to commit theft.

         II.     Scope and Standard of Review

         “We review challenges to jury instructions for correction of errors at
         law.” State v. Frei, 831 N.W.2d 70, 73 (Iowa 2013); see also Iowa
         R. App. P. 6.907. Yet, “[w]e review the related claim that the trial
         court should have given the defendant’s requested instructions for
         an abuse of discretion.” Summy v. City of Des Moines, 708 N.W.2d
         333, 340 (Iowa 2006). Discretion is afforded the trial court in this
         instance because the decision involves an assessment of the
         evidence in the case. “When weighing sufficiency of evidence to
         support a requested instruction, we construe the evidence in a light
         most favorable to the party seeking submission.” Sonnek v.
         Warren, 522 N.W.2d 45, 47 (Iowa 1994).

State v. Guerrero Cordero, 861 N.W.2d 253, 257-58 (Iowa 2015) (alteration in

original).

         III.    Analysis and Conclusion

         The district court followed Iowa Code section 709A.6(2) (2013) and

instructed the jury it was required to find all the following elements in order to find

Rockwood guilty of the first count of using a juvenile to commit certain offenses:

         1. That on or about September 26-28, 2013, the Defendant acted
         with, or entered into a common scheme or plan with or used,
         2. A person under age 18; namely [M.R.].
         3. Through threats, or monetary payment, or other means;
         4. To commit theft of property valued more than $200;
         5. For the profit of the Defendant.

The same instruction was given as to count 3, naming K.R. instead of M.R.



3
    Rockwood was also found guilty of theft. She has not appealed that conviction.
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       Rockwood requested the district court instruct the jury that contributing to

the delinquency of a minor was a lesser-included offense of counts 1 and 3. The

State objected, and the court overruled the request. Citing to Iowa Code section

709A.1(1), Rockwood argues on appeal the jury should have been instructed as

to the following elements of an included offense:

       1. The Defendant encouraged;
       2. A child under eighteen years of age;
       3. To commit any act of delinquency.

       She argues the word “encouraged,” from section 709A.1(1), is among the

possible alternatives of “other means” identified in section 709A.6(2).

              The statute [709A.1] does not define the word “encourage.”
       Nevertheless, when a word has no legislative definition or some
       particular meaning in the law, we assume the legislature intended it
       to have its common and ordinary meaning.
              Encourage is commonly defined to mean “to inspire with
       courage, spirit, or hope; to spur on; to give help or patronage.”

State v. Rohm, 609 N.W.2d 504, 510 (Iowa 2000) (citations omitted).

       Our supreme court has explained:

       To begin the process of determining the existence of a lesser
       included offense in this case, as in any case, the first task is to look
       at the elements of the marshaling instruction actually submitted to
       the jury. The elements of the crime described in the instruction are
       then compared with the statutory elements of the proposed lesser
       included offense to “determine if the greater offense can be
       committed without also committing the lesser offense.”

State v. Miller, 841 N.W.2d 583, 590 (Iowa 2014) (citations omitted). “Under the

legal elements test, if the lesser offense contains an element which is not

required for commission of the greater offense, then the lesser offense cannot be

included in the greater. . . . We look to the statutory elements rather than the

charge or the evidence.” State v. Constable, 505 N.W.2d 473, 475 (Iowa 1993).
                                            5



The statutory elements of the jury instruction actually given to the jury should be

based on “the manner in which the State . . . sought to prove those elements.”

State v. Turecek, 456 N.W.2d 219, 223 (Iowa 1990).

       The parties focus, as do we, on the third alternative of the third element of

the instruction given to the jury: “other means.” While we agree with Rockwood

that “encourage” could be included in the broad phrase “other means,” our

analysis is focused on whether “encourage” is necessarily included in the phrase

“other means” when considering the manner in which the State sought to prove

the elements.

       There is no evidence in this case that Rockwood “encouraged”—as the

term is defined in Rohm—the children to commit the crimes. There was little

evidence as to why they participated in the crimes. When asked at trial why she

pushed the cart out with the stroller in it, K.R. testified, “[w]ell, because

[Rockwood] told me to push it out,” and K.R. testified she did the same thing with

the printer. K.R. also testified she did not want those things for herself. 4 The

evidence was sufficient to establish the children assisted or aided Rockwood in

committing the crimes, but was not sufficient to determine exactly what means

was used to gain their participation in committing each crime. While there was

not sufficient evidence, either direct or circumstantial, from which a jury could

determine that Rockwood “encouraged” the children to commit the crimes, their

very participation was sufficient circumstantial evidence that she used some



4
 K.R. also testified that she took a rug from a store without paying for it. She testified
she made that decision on her own. No evidence was presented that Rockwood
encouraged or otherwise influenced K.R. to take the rug.
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means—“threats, or monetary payment, or other means”—to gain their

participation in the commission of the thefts.

       The district court did not abuse its discretion when it refused to give the

requested instruction. We affirm on this issue.

       We vacate the assessment of court costs on counts 2 and 5 to Rockwood

and remand for entry of a corrected sentencing order.

       AFFIRMED IN PART, VACATED IN PART, AND REMANDED.

       Danilson, C.J., concurs; McDonald, J., concurs specially.
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McDONALD, Judge (concurring specially)

       I concur in the judgment but write separately to note the standard of

review of the district court’s declination to give a requested instruction should be

for the correction of legal error. See Alcala v. Marriott Int’l, Inc., No. 14-1058,

2015 WL 5577844, at *7-10 (Iowa Ct. App. Sep. 23, 2015) (McDonald, J.,

concurring in part, dissenting in part) (“There is a lurking inconsistency regarding

the standard of review applied to the district court's refusal to give a requested

jury instruction. Traditionally, the refusal to give a requested instruction was

reviewed for the correction of legal error.”); Tamco Pork II, LLC v. Heartland Co-

Op, 876 N.W.2d 226, 229-32 (Iowa Ct. App. 2015) (same).
