Appeal from the Iowa District Court for Polk County, Douglas F. Staskal, Judge.
A defendant contends the district court abused its discretion in overruling his motion to sever the two counts contained within a trial information.
Mark C. Smith, State Appellate Defender, and Martha J. Lucey, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Thomas H. Miller, Assistant Attorney General, John P. Sarcone, County Attorney, and Robert Diblasi, Assistant County Attorney, for appellee.
Considered by Vogel, P.J., and Vaitheswaran and Bower, JJ.
Jose Chacon was apprehended in connection with an altercation in a Des Moines parking lot. The State charged Chacon with second-degree robbery as well as first-degree harassment of a police officer. Chacon moved to sever the two counts on the ground that there was a danger the jury would improperly consider evidence from one offense in determining whether he committed the other offense. The district court overruled the motion, and the charges were prosecuted in one trial. A jury found Chacon guilty of both crimes, and the court imposed sentence.
On appeal, Chacon contends the district court abused its discretion in overruling the motion to sever. See State v. Elston, 735 N.W.2d 196, 198 (Iowa 2007) (setting forth the standard of review). He relies on Iowa Rule of Criminal Procedure 2.6(1), which states in pertinent part:
Two or more indictable public offenses which arise from the same transaction or occurrence or from two or more transactions or occurrences constituting parts of a common scheme or plan, when alleged and prosecuted contemporaneously, shall be alleged and prosecuted as separate counts in a single complaint, information or indictment, unless, for good cause shown, the trial court in its discretion determines otherwise.
He contends "[t]he charges involving the robbery and the harassment of a police officer do not arise out of the same transaction or occurrence" and "were not based upon a common scheme or plan."
Multiple offenses arise out of the same transaction or occurrence "where the facts of each charge can be explained adequately only by drawing upon the facts of the other charge." State v. Bair, 362 N.W.2d 509, 512 (Iowa 1985) (quotation marks and citation omitted). The test focuses on three ways crimes are linked together: time, place, and the circumstances. Id. In the alternative, multiple offenses constitute part of "a common scheme or plan" when they are "products of a single or continuing motive." Elston, 735 N.W.2d at 198 (quotation marks and citation omitted).
The record reveals that Ed Olaby had just parked in a lot of a retail establishment when Chacon pulled up close to the passenger side of his vehicle. Both men got out and exchanged words, after which Chacon stripped Olaby of his gold necklace and hit him in the face. Olaby did not meekly stand by. He attempted to engage Chacon in a fight, but his knee buckled, and he landed on the ground with Chacon on top of him. Chacon proceeded to take Olaby's wallet from his pocket; Olaby's passenger retrieved it. Eventually, a store employee broke up the fight. As Chacon started to walk away, Olaby grabbed the keys from Chacon's car to prevent him from leaving. Chacon fled on foot.
A police sergeant dispatched to the scene found Chacon and tried to apprehend him. Chacon ran. Another officer located Chacon and had him placed in her car. During the drive back to the scene of the altercation, Chacon told the officer, "God judges all and will kill all that do wrong." He also said he acted as God and the officer needed to watch her back "because he would come to [her] when [she] least expected it." Later, he leaned towards the officer's name tag, read her name out loud three or four times, and told her to watch it because she was going to get it. The officer viewed these statements as threats.
At the parking lot where the fight occurred, Olaby's passenger identified Chacon as the person involved ...