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State v. Gill

Court of Appeals of Iowa

June 19, 2019

STATE OF IOWA, Plaintiff-Appellee,
v.
MICHAEL A. GILL, JR., Defendant-Appellant.

          Appeal from the Iowa District Court for Polk County, Robert B. Hanson, Judge.

         Michael Gill appeals his conviction and sentence for robbery in the second degree. AFFIRMED.

          Mark C. Smith, State Appellate Defender, (until withdrawal), and Robert P. Ranschau, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant Attorney General, for appellee.

          Considered by Vogel, C.J., and Mullins and Bower, JJ.

          VOGEL, CHIEF JUDGE.

         Michael Gill appeals his conviction and sentence for robbery in the second degree. He asserts his counsel was ineffective for failing to object to a jury instruction on second-degree robbery that did not include the assault element.

         On October 7, 2017, the victim took a bus home. As she stepped off the bus, two men also stepped off. The victim testified the men followed her and one man attempted to snatch her bag. She fell to the ground, was then thrown three or four times back to the ground, and was dragged until the man freed the bag from her grasp and ran off. An eyewitness testified he saw a woman being dragged along the sidewalk. After the man took off with the bag, the eyewitness chased him. The man eventually dropped the bag and was able to run away from the eyewitness.

         Law enforcement identified Gill as the perpetrator based on the eyewitness's detailed description of the man's clothing and appearance and video footage from the bus. Gill was charged with second-degree robbery.[1] The trial was held May 7 to 8, 2018, and the jury found him guilty of second-degree robbery, in violation of Iowa Code sections 711.1 and 711.3 (2017). Gill received a sentence of ten years in prison with a mandatory minimum of five years.

         Gill now appeals, arguing his counsel was ineffective for failing to object to a faulty jury instruction. Marshaling instruction number thirteen stated,

The State must prove both of the following elements of Robbery in the Second Degree:
1. On or about the [seventh] day of October, 2017, the Defendant had the specific intent to commit a theft.
2. To carry out that intention or to assist him in escaping from the scene, with or without the stolen property, the defendant inflicted a bodily injury on [the victim] . . . .

         Gill argues this instruction misstates the law by not including the assault[2] element-that is the bodily injury must be the result of an ...


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