                    IN THE COURT OF APPEALS OF IOWA

                                  No. 13-0962
                           Filed September 17, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

MICHAEL JAMES GROMMET,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, Andrea J.

Dryer, Judge.



      Michael Grommet appeals from the judgment and sentence entered after

he was found guilty of theft in the first degree as a habitual offender.

AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Martha J. Lucey, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Katie Fiala, Assistant Attorney

General, Thomas J. Ferguson, County Attorney, and James J. Katcher, Assistant

County Attorney, for appellee.



      Considered by Vaitheswaran, P.J., and Doyle, and McDonald, JJ.
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DOYLE, J.

      Michael Grommet was charged with the theft of a 2005 Chevrolet Tahoe

from a Cedar Falls automobile dealership.        Following a trial to the court,

Grommet was found guilty of the crime of theft in the first degree as a habitual

offender, in violation of Iowa Code sections 714.1(1), 714.2(1), and 902.8 (2011).

He appeals, arguing he was not guilty of theft by taking because the dealership

had permitted him to take the vehicle on a test drive. We affirm.

      On April 13, 2012, Grommet came into Wheels Unlimited, a small Cedar

Falls automobile dealership, and told Brett Sapp, the sales manager, that he was

interested in a 2005 Chevrolet Tahoe on the lot. Grommet identified himself as

“Jeremy” and told Sapp he had a vehicle to trade in. Sapp saw that this vehicle

was a newer car, and Grommet told him he owned the trade-in car free and clear

and that he was going to get the rest of the money from his mother-in-law. There

was no discussion as to how much Grommet would receive for the trade-in.

      Grommet said he wanted to test drive the Tahoe. Since Sapp was the

only salesperson then present at the dealership, he could not accompany

Grommet on a test drive. So, Sapp allowed Grommet to go on a solo test-drive.

Grommet drove the Tahoe away from the dealership lot at about 1:00 p.m. After

a few hours went by, Sapp became concerned about Grommet’s whereabouts.

Grommet then called Sapp and said he was at the bank getting money. Sapp

and Grommet had not yet discussed exactly how much money Grommet would

need to purchase the Tahoe. When Grommet had still not returned by 6:00 p.m.,

the dealership’s closing time, Sapp contacted the police to report that the Tahoe
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had been taken. Officers located the Tahoe the next morning in a driveway at an

Evansdale residence. Grommet was in the driver’s seat.

       Grommet was charged with several alternatives of the crime of theft:

“theft by taking,” in violation of Iowa Code section 714.1(1); “theft by

misappropriation,” in violation of section 714.1(2); and “theft by deception,” in

violation of section 714.1(3). A bench trial was conducted after Grommet waived

his right to a jury trial. The trial court made extensive fact findings. In light of the

narrow issue presented on appeal, it would serve no useful purpose to repeat the

court’s findings here. The court concluded:

               The court finds beyond a reasonable doubt that on or about
       April 13, 2012, [Grommet] knowingly took possession or control of a
       white 2005 Chevrolet Tahoe that belonged or was in the
       possession of Wheels Unlimited. After giving a false name,
       [Grommet] obtained possession of the Tahoe from Wheels
       Unlimited by representing that he only intended to take the Tahoe
       for a test drive. [Grommet] then drove the Tahoe away from the
       dealership lot. Wherever [Grommet] was with the Tahoe between
       1:00 p.m. until 11:00 p.m., [Grommet] did have the Tahoe near the
       intersection of Highway 30 and 21 near Tama/Toledo when the
       Tahoe was towed at about 11:00 p.m. on April 13, 2012.
       [Grommet] then drove the Tahoe back to Waterloo and continued to
       drive it until his arrest in Evansdale.

The court found Grommet guilty of the “theft by taking” alternative of the crime of

theft, in violation of section 714.1(1). Grommet now appeals from his judgment

and sentence.

       The State was required to prove the following elements:

              (1) On or about April 13, 2012, Grommet knowingly took
       possession or control of a motor vehicle;
              (2) Grommet did so with the specific intent to permanently
       deprive Wheels Unlimited of the motor vehicle;
              (3) at the time of the taking, the motor vehicle belonged to or
       was in the possession of Wheels Unlimited;
              (4) and the motor vehicle exceeded $10,000 in value.
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See Iowa Code §§ 714.1(1), .2(1); State v. Schminkey, 597 N.W.2d 785, 789

(Iowa 1999).

      On appeal, Grommet only challenges the first element of the offense.

Specifically, Grommet asserts “[t]he record shows that Grommet did not commit

a theft by taking in violation of Iowa Code section 714.1(1). The record fails to

demonstrate Grommet unlawfully took possession of the vehicle because Sapp

permitted him to take the vehicle.” We disagree because Iowa Code section

714.1(1) does not concern itself with the manner by which a person acquires the

property of another.

      Our supreme court has previously addressed the issue:

               Iowa, like many other states following the Model Penal
      Code, has abandoned the common law asportation requirement.
      Our definition of “theft” under Iowa Code section 714.1 is based on
      the Model Penal Code. We now define theft as the possession or
      control of another’s property with intent to deprive the owner
      thereof. The key to our statute is the words “possession or control.”
      In determining the meaning of “possession” and “control,” we look
      to the Model Penal Code for guidance as our statute is modeled
      after it. The Model Penal Code contemplates “control” of the object
      to begin when the defendant “use[s] it in a manner beyond his
      authority.” The method of exerting control over the object of the
      theft is important only insofar as it “sheds light on the authority of
      the actor to behave as he did.” Our statute replaces the common
      law element of “taking” with “possession.” The Model Penal Code
      provides a person commits theft if he or she “unlawfully takes, or
      exercises unlawful control over” the property of another. A taking in
      this sense concerns whether the offender exerted control over the
      object “adverse to or usurpatory of the owner’s dominion.” That is,
      one possesses an object if he or she secures dominion over it. To
      summarize the above concepts, “possession 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.

State v. Donaldson, 663 N.W.2d 882, 885 (Iowa 2003) (internal citations and

footnotes omitted). Grommet suggests the Donaldson decision “must be clarified
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and/or overruled.” We are not at liberty to upend supreme court precedent. See

State v. Hastings, 466 N.W.2d 697, 700 (Iowa Ct. App. 1990) (“We are not at

liberty to overturn Iowa Supreme Court precedent.”); State v. Hughes, 457

N.W.2d 25, 28 (Iowa Ct. App. 1990) (citing State v. Eichler, 83 N.W.2d 576, 578

(Iowa 1957) (“If our previous holdings are to be overruled, we should ordinarily

prefer to do it ourselves.”)). Furthermore, Donaldson is clear. The key inquiry is

whether the person exercised unlawful control over the property of another, not

the manner of taking.

       Although Grommet had permission to use the Tahoe at the moment of

acquisition, his authorization to use the vehicle was limited—he was only

authorized to take it for a test drive. Grommet’s unlawful “possession or control”

began and a theft was completed when he used the vehicle in a manner beyond

the authorization he was granted.         The record establishes Grommet took

possession and control of the Tahoe for an extended period of time and that he

took the vehicle with the intent to permanently deprive its lawful owner. The

district court’s findings of guilt are supported by substantial evidence.

       AFFIRMED.
