                    IN THE COURT OF APPEALS OF IOWA

                                  No. 19-0401
                               Filed July 1, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JOSEPH R. DESALME,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Heather Lauber, Judge.



      Joseph Desalme appeals his convictions of second-degree robbery and

first-degree theft. REVERSED AND REMANDED.




      Martha J. Lucey, State Appellate Defender, and Melinda J. Nye and

Stephan J. Japuntich, Assistant Appellate Defenders, for appellant.

      Thomas J. Miller, Attorney General, and Sharon K. Hall, Assistant Attorney

General, for appellee.




      Considered by Vaitheswaran, P.J., and Mullins and Ahlers, JJ.
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VAITHESWARAN, Presiding Judge.

       Following a police chase, Joseph Desalme abandoned his vehicle and

attempted to snatch two other vehicles, one containing two purses. A jury found

Desalme guilty of second-degree robbery and first-degree theft.          On appeal,

Desalme challenges the sufficiency of the evidence supporting the findings of guilt

and raises various other claims. We find the sufficiency argument dispositive.

       The jury was instructed that the State would have to prove the following

elements of second-degree robbery:

             1. On or about the 18th day of August, 2018, the [d]efendant
       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
       [c]ommitted an assault on [a person] . . . and in committing the
       assault the defendant caused bodily injury to [the person].

The jury was further instructed the State would have to prove the following

elements of first-degree theft:

             1. On or about the 18th day of August 2018, the [d]efendant
       took possession or control of property from [one or two persons].
             2. The defendant had the intent to permanently deprive [the
       persons] of the property.
             3. The property belonged to [the persons].

The jury was informed that:

              [A] person commits a theft by exercising control over stolen
       property, knowing such property to have been stolen, or by taking
       possession or control of the property of another, or property in the
       possession of another, with the intent to permanently deprive the
       other of the property.

       An “intent to deprive” was defined for the jury as “an intent to permanently

withhold, or withhold for so long, or under such circumstances, that its benefit or
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value is lost; or, the property is disposed of in such a manner or under such

circumstances, as to render it unlikely that the owner will recover the property.”

       Desalme contends “[t]he State failed to prove that [he] intended to

permanently deprive the complaining witnesses of their respective properties.” “A

verdict will be sustained if it is supported by substantial evidence.”      State v.

Acevedo, 705 N.W.2d 1, 3 (Iowa 2005). “The evidence must raise a fair inference

of guilt and do more than create speculation, suspicion, or conjecture.” State v.

Armstrong, 787 N.W.2d 472, 475 (Iowa Ct. App. 2010) (citation omitted).

       A reasonable juror could have found the following facts. A Polk County

deputy sheriff attempted to pull over a vehicle. The driver, later identified as

Desalme, refused to stop and, according to the deputy, “[b]egan driving very

recklessly cutting and weaving through traffic, [with] no regard for traffic signals

[or] anybody’s safety on the road.” After about three or four minutes, Desalme

opened the door, bailed out, and ran into the woods.

       Desalme ended up at a storage facility in Ankeny, where he encountered a

woman, her dog, and the woman’s partner. According to the woman, Desalme

“came running around the corner,” heading towards them. The dog went “crazy,”

and the woman grabbed the dog, returned to her vehicle, sat in the front passenger

seat of the car, and closed the door. Desalme “jumped into the driver’s seat and

reached for the keys.” The woman asked Desalme what he was doing. Desalme

responded, “I gotta have this. You don’t understand. I need this. You don’t

understand.” At this juncture, the woman’s partner, who was still outside, noticed

what was going on, grabbed Desalme and pulled him out of the driver’s seat. A

tussle ensued. The woman jumped into the driver’s seat to prevent Desalme from
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reentering. Desalme punched the man and said, “Let me borrow your car, man.

The cops are chasing me.” The woman “started screaming,” and Desalme “took

off running.”

       Another woman was also at the storage facility, along with her daughter and

grandson. While she was in the storage unit, she heard her daughter telling a man

to get out of her car. The woman went out and saw her daughter “in the passenger

side” and “a gentleman in the driver’s side” of the car with the door open. “He was

trying to jam keys in the ignition and take the car.” The man became frustrated

when the keys would not work, and he tried to grab the women’s purses. The

daughter pulled them away. Desalme “pleaded to [the woman] to give the keys to

[her] car to him because he was running from the cops.” She “said no.” Desalme

“got frustrated things weren’t working out for him and he ran off.” He did not take

the purses.

       An Ankeny police officer who was called to assist the Polk County sheriff

with Desalme’s apprehension saw him at an intersection. The officer arrested

Desalme.

       As noted, the jury received an instruction on the meaning of “intent to

deprive.” The definition tracks the definition the supreme court adopted in State v.

Schminkey, 597 N.W.2d 785 (Iowa 1999).            There, the court accepted the

defendant’s argument that “an intent to permanently deprive the owner of his

property is an essential element of theft under section 714.1(1).” Schminkey, 597

N.W.2d at 789. The court found no facts “indicating that [Schminkey] intended to

do anything more than temporarily use the vehicle to go home or to another bar.”
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Id. at 791. The court found its holding consistent with Brainard v. State, 222

N.W.2d 711 (Iowa 1974).

       In Brainard, the defendant admitted that he “took” a car and he did not intend

to bring it back. 222 N.W.2d at 721. Notwithstanding these admissions, the court

concluded, “At most petitioner admitted a wrongful taking of the owner’s car, but

the colloquy did not reveal . . . a factual basis for determining he took the car with

an intent to steal.” Id.

       The supreme court reaffirmed Schminkey in State v. Morris, 677 N.W.2d

787, 788 (Iowa 2004). There, the defendant was found to have taken a truck that

was warming up on the street in front of the victim’s home. Morris, 677 N.W.2d at

787–88. The court stated,

       Although apprehension of the suspect within a short time of the
       taking of the vehicle does not defeat the possibility that there was an
       intent to permanently deprive the owner of the property at the time of
       the taking, it is a circumstance that severely limits the circumstantial
       evidence from which that intent can be inferred.

Id. at 788. The court found the evidence “insufficient to support a conviction for

second-degree theft.” Id.

       We agree with Desalme that if the evidence was insufficient in Brainard,

Schminkey, and Morris, the evidence was insufficient here. Desalme did far less

than the defendants in those cases. He tried to start the cars and he grabbed two

purses, but the cars did not move and the purses remained in the vehicle. Under

the definition of “intent to deprive” the jury received, Desalme did not deprive the

owners of anything, let alone on a permanent basis. See State v. Fuentes, No.

03-0426, 2004 WL 1854103, at *2 (Iowa Ct. App. Jul. 28, 2004) (finding insufficient

evidence of intent to commit a theft to support a conviction for second-degree
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robbery where the defendant “testified he did not intend to keep the van; the van

was not driven a great distance from where taken; the van was found the same

night it was taken; no attempt was made to conceal the van; and the van was in

drivable condition”); State v. Ellis, No. 02-1466, 2003 WL 22087525, at *2 (Iowa

Ct. App. Sept. 10, 2003) (finding insufficient evidence to support an intent to

permanently deprive a person of a camera where the defendant reached into a car

and grabbed a camera from the occupant’s lap but did not take off with it and

instead stood outside the car and “‘fidgeted’ with it”). For that reason alone,

Desalme could not be guilty of theft. See State v. Donaldson, 663 N.W.2d 882,

886 (Iowa 2003) (“‘[P]ossession or control’ begins and a theft is completed when

the actor secures dominion over the object or uses it in a manner beyond his

authority.”); see also State v. Nall, 894 N.W.2d 514, 520 (Iowa 2017) (“Donaldson

focused on when a change of possession and control occurs for purposes of theft

by taking.”).

         We recognize that, under the robbery definition, DeSalme did not have to

steal the items; he only needed to have the intent to commit a theft. The State

gleans that intent from his acts of racing away from law enforcement officers and

assaulting the man at the storage facility. But the high-speed chase is simply

evidence of Desalme’s intent to escape—not his intent to permanently deprive the

bystanders of their property.1 See State v. Bevar, No. 10-0987, 2011 WL 1378838,

at *3 (Iowa Ct. App. Apr. 13, 2011) (reversing a finding of guilt for first-degree

robbery reasoning “the natural and logical conclusion is [the defendant] intended



1   Desalme pled guilty to the misdemeanor crime of eluding.
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to liberate herself, not permanently deprive [the jailer] of the keys, flashlight, and

handheld scanner”); State v. Powell, No. 05-1757, 2007 WL 112890, at *1–3 (Iowa

Ct. App. Jan. 18, 2007) (finding insufficient evidence of intent to permanently

deprive despite the defendant’s refusal to stop for law enforcement officers who

attempted to pull him over). And the assault goes to the second robbery element—

“In carrying out his intention or to assist him in escaping from the scene, with or

without the stolen property, the defendant [c]ommitt[ed] an assault on [an

individual] . . . and in committing the assault the defendant caused bodily injury to

[the individual].”

       The State also contends Desalme’s intent may be discerned from the fact

“he had no relationship” with the individuals at the storage facility and, accordingly,

“would have [had] no way to return the car.” But Desalme’s own words suggest

an intent to only temporarily divest the owners of their vehicles. See State v.

Branch, No. 10-1438, 2011 WL 6661176, at *7 (Iowa Ct. App. Dec. 21, 2011)

(finding insufficient evidence of an intent to deprive a person of his vehicle where

the defendant’s sister testified to the defendant’s blackouts and the defendant

testified he had not driven a car in years); State v. Davolt, No. 10-0071, 2010 WL

5394989, at *1 (Iowa Ct. App. Dec. 22, 2010) (reversing a finding of guilt on a

charge of first-degree theft where a witness stated the defendant took the vehicle

because he got stranded). As noted, Desalme asked one of the individuals at the

storage facility if he could “borrow” the vehicle and he “pleaded” with the occupant

of the other vehicle to give him the keys. These accounts of what Desalme said

are noteworthy because they were made by the very people whose vehicles and

personal safety were in jeopardy.
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      The record lacks substantial evidence to support a finding of Desalme’s

intent to permanently deprive the owners of their vehicles or purses. Accordingly,

we reverse his robbery and theft convictions and remand for dismissal. In light of

our disposition, we find it unnecessary to address the remaining issues raised by

Desalme.

      REVERSED AND REMANDED.
