                    IN THE COURT OF APPEALS OF IOWA

                                  No. 14-1601
                              Filed June 29, 2016


TYRONE DEMARIO BRYSON,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Michael D. Huppert,

Judge.



      An applicant appeals the district court’s denial of his application for

postconviction relief. AFFIRMED.




      Christine E. Branstad and Nathan A. Olson of Branstad Law, PLLC, Des

Moines, for appellant.

      Thomas J. Miller, Attorney General, and Louis S. Sloven and Kevin

Cmelik, Assistant Attorneys General, for appellee State.




      Heard by Vogel, P.J., and Doyle and Bower, JJ. Tabor, J., takes no part.
                                             2


VOGEL, Presiding Judge.

       Tyrone Bryson appeals the district court’s denial of his application for

postconviction relief (PCR). He contends on appeal that his sentence is illegal

because his convictions for burglary and robbery should have merged and two of

his convictions for third-degree sexual abuse should also have merged. Because

we agree with the district court that none of the convictions merge, we affirm the

court’s denial of Bryson’s PCR application.1

I. Background Facts and Proceedings.

       The evidence introduced at the criminal trial established that in the early

morning hours of March 4, 1999, sixty-seven-year-old B.S. was attacked in her

Des Moines home. The perpetrator, later identified by B.S. and confirmed by

DNA evidence, was Bryson. During the attack, Bryson performed oral sex on

B.S. and forced B.S. to perform oral sex on him. Then B.S. insisted she needed

to take her heart medication, which was located in the kitchen. Bryson dragged

the naked B.S. to the kitchen by her arm, where B.S. took her medication and

retrieved a can of mace from her purse. Bryson grabbed the mace out of her

hand, ripped the phone out of the wall, and then took B.S. back into the bedroom,

forcing her to engage in vaginal intercourse. After the acts of sexual assault had

ended, B.S. kept talking to Bryson in the hopes that he would not further harm

1
  Recently in State v. Dempsey, No. 15-1195, 2016 WL 3275306, at *2-3 (Iowa Ct. App.
June 15, 2016), our court determined a defendant does not have a right to appeal a
district court’s denial of a motion to correct an illegal sentence and that such a denial is
reviewable through a petition for a writ of certiorari. While the claim Bryson makes in
this case is that his sentence is illegal, he makes his claim through an application for
postconviction relief. See Iowa Code § 822.2(1)(a) (2013). The district court treated the
claim as a PCR action, not a motion to correct an illegal sentence under Iowa Rule of
Criminal Procedure 2.24(5). A denial of an application for postconviction relief is
appealable as a matter of right. See id. § 822.9. Therefore, we determine Bryson
sought the proper form of review.
                                           3


her. She asked him to get her a soda. Before he left the house, Bryson took

B.S.’s mace canister, and some coins and dollar bills out of B.S.’s purse. B.S.

then put on a robe and ran to her neighbors for help where the police were

called.

          B.S. gave a description of the perpetrator to police, and based on that

description, Bryson was located nearby and detained. Police located a can of

mace in Bryson’s pocket along with dollar bills. In addition, a pile of quarters was

found on the ground where he was stopped in front of a homeless shelter. B.S.

was brought to Bryson, and she positively identified him.

          B.S. was taken to the hospital where she was examined. She complained

to the physician that she was experiencing pain in her arm, where a red mark

was visible. In addition, she was experiencing pain from the sexual assault. She

underwent a sexual-assault examination at the hospital, and based on DNA

recovered from B.S., experts testified at trial that Bryson could not be excluded

as a donor of the seminal fluid.

          Bryson testified in his own defense, claiming he was not in or near B.S.’s

home at the time of the incident. He stated he picked up an abandoned can of

mace from the ground and had money in his pocket a friend had given him.

          The jury found Bryson guilty of burglary in the first degree, robbery in the

second degree, and three counts of sexual assault in the third degree. The jury

also answered a special interrogatory finding Bryson “intentionally or recklessly

inflicted a bodily injury upon [B.S.] other than, or in addition to, any sex act.” The

court imposed a sentence not to exceed twenty-five years on the burglary

conviction. The court found Bryson to be an habitual offender under Iowa Code
                                        4


sections 902.8 and 902.9(2) (1999), which enhanced the sentences on the

robbery and sexual abuse counts to fifteen years each. The court ran the five

sentences consecutively for a total term of eighty-five years.       A mandatory

minimum of three years was imposed on each sexual abuse conviction, pursuant

to Iowa Code section 902.8, and the applicable mandatory minimum was

imposed on the robbery conviction, under Iowa Code section 902.12.             The

mandatory minimum sentences were also ordered to run consecutively. The

court ordered the consecutive sentences because of Bryson’s criminal record

and “the particular seriousness and heinousness of this crime.” The court also

found “each and all of the acts of sexual abuse to be independent decisions of

specific criminal conduct, any one of which [Bryson] could have elected not to

perform and therefore believes consecutive sentences are appropriate.”

      Bryson appealed from his convictions, but that appeal was dismissed as

frivolous in 2001. Bryson’s first PCR application was denied by the district court

in 2004, and no appeal was filed. The current PCR application was filed in

October 2013, twelve years after his convictions became final.

      After a contested hearing on Bryson’s PCR application, the district court

determined the burglary and the robbery convictions do not merge because there

were two separate assaults independent of the sexual assaults: “(1) the dragging

or pulling [B.S.] by the arm when the applicant took her to the kitchen to retrieve

her medication, and (2) the snatching of her mace from her hand at the time he

took it from her.” The court found, “Based upon the evidence presented and the

State’s theory of the case, it would not have been impossible for the applicant to

have committed burglary in the first degree without also having committed
                                           5


robbery in the second degree.” Likewise, the court denied Bryson’s claim that his

sexual abuse sentences should merge, finding “[e]ach of the three sexual abuse

counts specified separate physical acts between the applicant and [B.S.] which

come within the statutory definition of ‘sex act.’”

       Bryson appeals claiming the district court erred in concluding the burglary

and robbery convictions do not merge and in concluding two of the sexual abuse

convictions do not merge.

II. Scope and Standard of Review.

       The district court considered Bryson’s merger argument within the

structure of a PCR claim, which is reviewed for correction of errors at law.

Lowery v. State, 822 N.W.2d 739, 741 (Iowa 2012). Claims that the district court

erred in failing to merge convictions can be raised at any time because the failure

to merge convictions as required by statute results in an illegal sentence. State

v. Love, 858 N.W.2d 721, 723 (Iowa 2015). We review claims that a sentence is

illegal because of merger for correction of errors at law. State v. Anderson, 565

N.W.2d 340, 342 (Iowa 1997).

III. Merger.

       Under Iowa Code section 701.9,

              No person shall be convicted of a public offense which is
       necessarily included in another public offense of which the person
       is convicted. If the jury returns a verdict of guilty of more than one
       offense and such verdict conflicts with this section, the court shall
       enter judgment of guilty of the greater of the offenses only.

This statute “codifies the double jeopardy protection against cumulative

punishment.” State v. Caquelin, 702 N.W.2d 510, 511 (Iowa Ct. App. 2005)

(quoting State v. Gallup, 500 N.W.2d 437, 445 (Iowa 1993)).
                                          6


       To determine whether convictions merge, we must determine whether one

offense is “necessarily included” in another offense.        State v. Hickman, 623

N.W.2d 847, 850 (Iowa 2001). To do that, we look at the elements of each and

“determine if the greater offense can be committed without also committing the

lesser offense.” Id. We consider the elements of the offense “in the manner in

which the State sought to prove those elements.” Id. (quoting State v. Coffin,

504 N.W.2d 893, 895 (Iowa 1993)). This is called the “impossibility test,” and it

fully subsumes the “elements” test.       Id.   Also, “it is not necessary that the

elements of the lesser offense be described in the statutes in the same way as

the elements of the greater offense.” Id. (quoting Coffin, 504 N.W.2d at 895).

       A. Burglary and Robbery.

       Bryson claims his second-degree robbery conviction should merge into his

first-degree burglary conviction.2 Bryson relies on State v. Lambert, 612 N.W.2d

810, 816 (Iowa 2010), to argue it is impossible to determine which specific intent

the jury relied on in finding Bryson committed a burglary, so as to preclude a

separate conviction under robbery, which contains a common element.                We

agree with Bryson the specific-intent-to-commit-a-theft element of the two

offenses align, but that does not end our analysis in this case. We must examine

whether the assault element contained in second-degree robbery is necessarily

included in first-degree burglary’s assault element so as to require merger. We

conclude it does not.


2
 We have previously held the offenses of first-degree burglary and first-degree robbery
do not merge. See Blodgett v. State, No. 05-2137, 2007 WL 1201755, at *2-3 (Iowa Ct.
App. Apr. 25, 2007); State v. Reames, No. 05-1084, 2006 WL 2873320, at *1-2 (Iowa Ct.
App. Oct. 11, 2006).
                                           7


       In Bryson’s criminal trial, the jury was instructed:

                                   Instruction No. 18
               Under Count 1, the State must prove all of the following
       elements of Burglary in the First Degree.
               1. On or about March 4th, 1999, the Defendant broke into
       and/or entered the home of [B.S.].
               2. The home was an occupied structure.
               3. A person or persons were present in the occupied
       structure.
               4. The Defendant did not have permission or authority to
       break into and/or enter the home.
               5. The Defendant did so with the specific intent to commit a
       theft, assault, or robbery.
               6. During the incident the Defendant intentionally or
       recklessly inflicted bodily injury on [B.S.].

                                 Instruction No. 39
              Under Count 2, the State must prove all of the following
       elements of Robbery in the Second Degree:
              1. On or about March 4th, 1999, the Defendant had the
       specific intent to commit a theft.
              2. In carrying out his intention or to assist him in escaping
       from the scene, with or without the stolen property, the Defendant
       committed an assault on [B.S.].

       Under element number 5 of the burglary instruction, there are three

alternative intents: “the specific intent to commit a theft, assault, or robbery,” and

no special interrogatory clarified which alternative the jury relied upon. When

alternatives are present and one alternative requires merger, merger is required

if it is impossible to determine which alternative the jury used. Lambert, 612

N.W.2d at 816. Both parties agree with the district court’s conclusion that for the

purpose of determining whether merger is required the intent-to-commit-a-theft

alternative for burglary must be used because second-degree robbery likewise

required a specific intent to commit a theft.3 See State v. Daniels, 588 N.W.2d


3
 It should be noted that we do not address the sufficiency of the evidence to support the
conclusion that Bryson had the specific intent to commit a theft, the common specific
                                          8


682, 684 (Iowa 1998) (“If one of the crimes may be committed in alternate ways,

‘the alternative submitted to the jury controls’ the comparison.”).

       The fighting issue for Bryson on appeal is the district court’s determination

that merger was not required because the evidence supported two different

assaults, independent from the sex acts.          The jury was given a special

interrogatory, but that interrogatory only asked the jury to determine if B.S.

suffered an injury distinct from the injuries caused by the sex acts. However, as

previously noted, the PCR court found Bryson committed two nonsexual

assaults: the first by “dragging or pulling [B.S.] by the arm when [Bryson] took her

to the kitchen to retrieve her medication” and the second by “snatching . . . her

mace from her hand at the time he took it from her.”

       We agree with Bryson that, even though the record supports different

assaults, the fact finder must make separate factual findings that show separate

assaults supported the robbery and burglary claims if we are to conclude the

offenses do not merge. See Love, 858 N.W.2d at 724 (holding the crimes merge

where the jury was not asked to determine whether two assaults occurred even

though the evidence may have been sufficient to support separate crimes).

Because the jury was never asked to do the fact-finding necessary to support two

separate assaults, the district court erred in concluding merger was precluded by

the existence of sufficient evidence to support two separate, nonsexual assaults.

       However, despite our agreement with Bryson’s assertion that merger

would be proper because the jury was not asked to find two, nonsexual assaults,



intent element of second-degree robbery and first-degree burglary. The jury already
made that determination, and that issue is not before this court.
                                         9


his merger claim fails because robbery, the lesser offense, contains an element

not required for burglary, the greater offense. See State v. Jeffries, 430 N.W.2d

728, 736 (1988) (noting a lesser offense cannot be included in the greater

offense if the lesser contains an element not part of the greater); see also Ne.

Cmty. Sch. Dist. v. Easton Valley Cmty. Sch. Dist., 857 N.W.2d 488, 491 (Iowa

2014) (“Our cases allow us to affirm the district court on any basis argued by the

appellee in the district court and urged on appeal by the appellee.”).

       For robbery, the jury instruction stated, “In carrying out his intention or to

assist him in escaping from the scene . . . the defendant committed an assault.”

For burglary, the jury was instructed, “During the incident Defendant intentionally

or recklessly inflicted bodily injury.” Here, the robbery instruction required the

assault occur to assist in escaping or to further the commission of the intended

theft. See Iowa Code § 711.1; see also State v. Copenhaver, 844 N.W.2d 422,

452 (Iowa 2014) (noting the assault alternative of robbery is a specific-intent

crime). However, the burglary instruction only required the assault to occur at

some point during the burglary. See Iowa Code § 713.1; see also State v. Peck,

539 N.W.2d 170, 175 (Iowa 1995) (“The ‘reckless’ alternative for first-degree

burglary connotes that the act was not done with specific intent, but ‘fraught with

a high degree of danger . . . so obvious from the facts that the actor knows or

should reasonably foresee that harm will probably . . . flow from the act.’”

(emphasis added) (citation omitted)). Robbery’s assault element has a restriction

as to the purpose behind the assault, and the burglary instruction does not.

       We note the elements of the lesser offense do not need to be described in

the same way as the elements in the greater offense in order for merger to take
                                            10

place. See Coffin, 504 N.W.2d at 895. So long as the statutes convey the “same

thought,” the offenses are merged. See Hickman, 623 N.W.2d at 852 (holding

“purposely inflicts . . . serious injury” and “intended to cause . . . serious injury”

convey the same specific intent such that it is impossible to commit one without

the other). But nowhere in the burglary instruction is there a requirement that the

assault take place to facilitate the theft or to assist in escaping from the scene.

All that is required is that the assault take place during the burglary. So while the

specific-intent-to-commit-a-theft elements are presumed in favor of merger and

the jury did not specify its conclusions as to the number of nonsexual assaults,

second-degree robbery and first-degree burglary still require separate, unique

elements to be proven. Consequently, merger is not required as a matter of law.

       B. Sexual Abuse in the Third Degree. Next, Bryson claims two of his

three sexual abuse convictions should merge, specifically the two convictions

that involve the commission of the oral sex acts. He claims these counts were

part of one continuous act and there was no break in the action between the oral

sex acts so as to justify multiple punishments.4



4
  The State challenges Bryson’s classification that this claim is a challenge to an illegal
sentence. The State asserts Bryson’s challenge is really that there is insufficient factual
support for the first two counts of sexual abuse because both counts comprise one
continuous act with no intervening act or break in the action. The State asserts Bryson’s
claim is a masked substantive challenge to the sufficiency of the evidence to support two
of the sexual abuse counts, not a challenge to the illegality of his sentence. Because, in
the State’s view, Bryson’s claim is not to the legality of his sentence, he is prevented
from litigating this issue twelve years after his conviction became final.
         As another panel of this court has noted,
         [T]here is conflicting case law on the issue of whether this category of
         claim is a substantive challenge to the conviction or a claim for an illegal
         sentence. See generally State v. Ross, 845 N.W.2d 692, 700–01 (Iowa
         2014); State v. Copenhaver, 844 N.W.2d 442, 447–52 (Iowa 2014); State
         v. Velez, 829 N.W.2d 572, 584 (Iowa 2013); State v. Kidd, 562 N.W.2d
                                           11


       In determining what the legislature intended as a “‘unit of prosecution’ for

a particular crime,” we look to the statutory language. Velez, 829 N.W.2d at 579.

“The general assembly has the absolute right to determine the unit of prosecution

for a crime.”    Ross, 845 N.W.2d at 704.         Sexual abuse in the third degree

requires the commission of a sex act. See Iowa Code § 709.4. The legislature

has defined “sex act” or “sexual activity” as:

       any sexual contact between two or more persons by: penetration of
       the penis into the vagina or anus; contact between the mouth and
       genitalia or by contact between the genitalia of one person and the
       genitalia or anus of another person; contact between the finger or
       hand of one person and the genitalia or anus of another person,
       except in the course of examination or treatment by a person
       licensed pursuant to chapter 148, 148C, 150, 150A, 151, or 152; or
       by use of artificial sexual organs or substitutes therefor in contact
       with the genitalia or anus.

Id. § 702.17. “Under this statute, any single physical contact so described is

sufficient to meet the definition of ‘sex act.’” Constable, 505 N.W.2d at 477.5


        764, 765–66 (Iowa 1997); State v. Constable, 505 N.W.2d 473, 477–78
        (Iowa 1993).
State v. Sanchez, No. 13-1989, 2015 WL 4935530, at *1 (Iowa Ct. App. Aug. 19, 2015);
see also Love, 858 N.W.2d at 723–24 (noting the defendant’s challenge was to the
legality of his sentence, which could be raised at any time, and analyzing under the
merger doctrine whether the jury was instructed to determine if there was a sufficient
break in the action to support multiple assaults).
        However, like Sanchez, we need not resolve this issue because Bryson’s
challenge to his two sexual abuse convictions fails on its merits. See 2015 WL 4935530,
at *1.
5
  Bryson asks that we supplement the ruling in Constable with the analysis of the factors
the supreme court articulated in Ross to determine the “unit of prosecution” for sexual
abuse. See Ross, 845 N.W.2d at 705 (“These factors are (1) the time interval occurring
between the successive actions of the defendant, (2) the place of the actions, (3) the
identity of the victims, (4) the existence of an intervening act, (5) the similarity of
defendant’s actions, and (6) defendant’s intent at the time of his actions.”). We note the
factors in Ross are only an “aid to the fact finder in determining if the defendant’s
assaultive conduct is one continuous act or a series of separate and distinct acts.” Id.
(emphasis added). Even if we were to agree we need to apply the Ross factors, the
application of these factors to the facts of this case does not demand that we overrule
Constable and merge two of the sexual abuse convictions. There was no testimony
regarding the length of time between the two sex acts at issue, but performing both acts
                                          12


“The language of our definitional statute and chapter 709 express legislative

intent that the commission of any single physical contact described in section

702.17 is a sex act sufficient to complete a sexual abuse crime when other

proscribed circumstances exist.” Id. at 477–78.

       With respect to two of Bryson’s sexual abuse convictions, the jury was

instructed:

                                 Instruction No. 41
               Under Count 3, the State must prove all of the following
       elements of Sexual Abuse in the Third Degree:
               1. On or about March 4th, 1999, the Defendant performed a
       sex act with [B.S.] by causing sexual contact between the mouth of
       the Defendant and the genitals of [B.S.].
               2. The Defendant performed the sex act by force or against
       the will of [B.S.].

                                  Instruction No. 46
               Under Count 4, the State must prove all of the following
       elements of Sexual Abuse in the Third Degree:
               1. On or about March 4th, 1999, the Defendant performed a
       sex act with [B.S.] by causing sexual contact between the mouth of
       [B.S.] and the genitals of the Defendant.
               2. The Defendant performed the sex act by force or against
       the will of [B.S.].

       The jury was not instructed, as Bryson contends, to find two incidents of

oral sex. The jury was required to find two different sex acts in order to convict

Bryson of these two counts of sexual abuse: “sexual contact between the mouth

of [Bryson] and the genitals of [B.S.],” and “sexual contact between the mouth of

[B.S.] and the genitals of [Bryson].” While the two acts may have occurred close


would require at a minimum a change in body position. Both acts took place in one
location, with one victim, and with the same intent, and there does not appear to be any
intervening act. However, there were two different actions by Bryson—placing his mouth
on B.S.’s vagina and forcing his penis into B.S.’s mouth—unlike Ross where there was
one action committed multiple times—multiple shots fired from a gun. Id. at 705–06.
Thus, even if the Ross decision modified the merger analysis, its application does not
change the result here or the holding in Constable, 505 N.W.2d at 477–78.
                                        13


in time, the legislature has determined that each act is a separate offense by

defining the crime as contact between specified body parts of two persons.

Because each of these acts alone meets the definition of a “sex act,” each is

sufficient to charge Bryson with one count of third-degree sexual abuse.        “A

defendant should not be allowed to repeatedly assault his victim and fall back on

the argument his conduct constitutes but one crime.” State v. Newman, 326

N.W.2d 793 (Iowa 1982). The case was tried and submitted to the jury as two

separate sex acts involving different body parts of both Bryson and B.S.;

therefore, we conclude Bryson’s conviction of these two counts of sexual abuse

does not offend the merger doctrine or the Double Jeopardy Clause. Cf. State v.

Folck, 325 N.W.2d 368, 376 (Iowa 1982) (noting that while facts support the

conclusion the defendant subjected the victim to three incidents of sexual abuse

within a short period of time, the case was tried as one continuing event and

submitted to the jury that way and thus, the sexual abuse conviction merged into

the kidnapping conviction).

IV. Conclusion.

      We affirm the district court’s denial of Bryson’s PCR application because

we agree with the district court’s conclusion robbery in the second degree does

not merge into burglary in the first degree. Robbery’s assault element has a

restriction as to the purpose behind the assault that the burglary instruction does

not, making it legally possible to commit first-degree burglary without also

committing second-degree robbery. In addition, we agree the two sexual abuse

convictions do not merge because the jury found two different sex acts, and each
                                       14


of these acts alone meets the statutory definition of a “sex act,” which supports

two separate convictions.

      AFFIRMED.
