State of Iowa v. Scott Robert Robinson

               IN THE SUPREME COURT OF IOWA
                              No. 12–1323

                         Filed February 6, 2015


STATE OF IOWA,

      Appellee,

vs.

SCOTT ROBERT ROBINSON,

      Appellant.


      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Dubuque County,

Michael J. Shubatt, Judge.



      Defendant seeks further review of a court of appeals decision

affirming his conviction for first-degree kidnapping.    DECISION OF

COURT OF APPEALS AFFIRMED IN PART AND VACATED IN PART;

DISTRICT COURT JUDGMENT REVERSED AND CASE REMANDED.


      Mark C. Smith, State Appellate Defender, and Shellie L. Knipfer,

Assistant Appellate Defender, for appellant.



      Thomas J. Miller, Attorney General, Tyler J. Buller, Assistant

Attorney General, Ralph R. Potter, County Attorney, and Christine

O’Connell Corken, Assistant County Attorney, for appellee.
                                     2

APPEL, Justice.

      In this case, we consider multiple challenges to Scott Robinson’s

conviction of first-degree kidnapping allegedly arising out of a sexual

assault.   Robinson contends that his conviction should be reversed

because (1) the evidence showed insufficient confinement to support his

kidnapping conviction, (2) he was denied access to barrier-free contact

with his counsel prior to trial, (3) photographs of him prior to the assault

were improperly admitted into evidence, (4) opinion testimony related to

the credibility of the alleged victim was improperly excluded, (5) the jury

instruction did not properly define the confinement, and (6) the trial

information did not give him proper notice of the first-degree-kidnapping

charge. We transferred the case to the court of appeals, which affirmed

Robinson’s conviction.

      We granted further review.     When we grant further review of a

decision of the court of appeals, we have discretion to select issues for

our consideration. In this appeal, we consider two issues. First, whether

there is sufficient evidence in the record to support the defendant’s

conviction for kidnapping and second, whether the defendant is entitled

to barrier-free contact with his attorney.     Because we conclude the

evidence was insufficient to support the conviction, we reverse the

conviction. We therefore vacate the court of appeals decision related to

the sufficiency-of-the-evidence claim and the barrier-free contact claim,

but as to the other issues raised in the brief, we will let the court of

appeals opinion stand as the final decision of this court. See Hills Bank

& Trust Co. v. Converse, 

772 N.W.2d 764, 770

 (Iowa 2009).

      I. Factual and Procedural Background.

      In the early morning hours of October 8, 2011, Dubuque police

received a complaint about screaming arising from an apartment. Police
                                                 3

responded to the scene, heard screams from within the apartment, broke

into the apartment from which the screams arose, and found the

defendant, Robinson, and B.S. half-naked in the bedroom of the

apartment. Police arrested Robinson. On October 12, the State charged

Robinson by trial information with kidnapping in the first degree in

violation of Iowa Code sections 710.1 and 710.2 (2011) and sexual abuse

in the second degree in violation of Iowa Code sections 709.1 and

709.3(1). 1       Robinson did not post bail and was held in the Dubuque

County Jail pending trial.

         When Robinson’s counsel sought to meet with him prior to trial,

the visiting rooms utilized at the Dubuque County Jail had a Plexiglas

barrier between Robinson and his lawyer. There was no pass-through

for documents. Video cameras were placed outside the visiting rooms.

         Robinson filed a motion seeking an order compelling the State to

provide him with barrier-free access to his attorney. After a hearing, the

district court entered an order declining to compel barrier-free access for

each and every meeting between Robinson and his counsel, but

instructed the State to provide Robinson and his counsel with barrier-

free access upon a showing of need, such as reviewing documents or

video or audio recordings.               In the event the jail failed to make such

contact available, the district court established an expedited hearing

process. At such a hearing, if Robinson made a preliminary showing of

need, the State would then have to show a case-specific, individualized

suspicion in order to sustain any action denying barrier-free access. The

record reveals that no further motions were filed with the court on this

issue.

         1The   district court dismissed this charge prior to the start of trial.
                                   4

      The kidnapping case against Robinson proceeded to trial. Because

the trial-related question we have determined to review in this appeal

involves the substantiality of evidence to support Robinson’s conviction

of kidnapping, we review the evidence in the light most favorable to the

State. See State v. Bass, 

349 N.W.2d 498, 500

 (Iowa 1984).

      At trial, the evidence showed that on the evening of October 7,

2011, B.S. began drinking at home with her brother and a friend. After

police officers arrived at the home and asked them to quiet down, the

group decided to continue drinking at downtown bars. Ultimately, they

ended up at a bar in East Dubuque, Illinois, that remained open until

3:00 a.m. B.S. met Robinson at the East Dubuque bar.

      Robinson invited B.S. to an after-hours party at his apartment.

After B.S. and Robinson arrived at the apartment, B.S. wondered why

there were no other people at the after-hours party. When B.S. took out

her phone to make a call, Robinson grabbed it and threw it behind a

chair. B.S. then asked Robinson for a drink. But when Robinson made

a visit to the bathroom, B.S. grabbed her purse and ran out the door.

B.S. realized, however, that she had left her phone in the apartment and

went back to retrieve it. When she reentered the apartment, Robinson

shut the front door behind her, locked it, and grabbing her neck and jaw

and covering her mouth, dragged her down the hallway to the bedroom.

B.S. screamed once in the hallway.      After shutting and locking the

bedroom door from the inside, Robinson threw her on the bed, got on top

of her, and covered her mouth when she started to scream. Robinson

tried to force B.S. to have oral sex with him. Robinson then flipped B.S.

over on her back, and when she again started to scream, Robinson put

his hand over her mouth and began to penetrate her.
                                    5

      Awakened by the noise, a downstairs neighbor phoned the police.

When the police arrived, they heard screaming and ultimately broke

down the front door and entered the apartment. The officers heard more

screaming as they approached the bedroom and after being refused

entry, broke down the bedroom door. When they entered the room, they

saw Robinson and B.S. both naked from the waist down.             B.S. was

standing and visibly upset.

      Based on the evidence presented at trial, the jury convicted

Robinson of kidnapping in the first degree, sexually motivated.

      Robinson appealed.      We transferred the case to the court of

appeals. On the issue of sufficiency of the evidence, the court of appeals

focused on the jury instruction which posed the question of whether

Robinson confined B.S. “more than what is included in the commission

of the crime of sexual abuse.” See State v. McGrew, 

515 N.W.2d 36, 39

(Iowa 1994) (“A defendant ‘confines’ another person in violation of our

kidnapping statue only if the confinement definitely exceeds the

confinement that is an inherent incident of the underlying felony.”). The

court of appeals noted there was substantial evidence that Robinson

closed the front door and locked it, thereby requiring police to break the

door down in response to screams. The court of appeals further noted

the evidence showed that Robinson physically moved B.S. from the living

room to the bedroom in a manner that prevented her from escaping and

then locked the bedroom door behind him. Robinson then held B.S. in a

fashion that prevented her escape. Based on this evidence, the court of

appeals found sufficient evidence of confinement to support the

kidnapping conviction.   The court of appeals further affirmed a pro se

challenge to the effectiveness of Robinson’s trial counsel on the ground

that the instruction on confinement given by the district court was not
                                    6

erroneous. And lastly, for purposes of this opinion, the court of appeals

held that if Iowa Code section 804.20 applies to pretrial detainees

regarding access to barrier-free contact with his or her attorney, the

provision was violated; however, the court was unclear what remedy was

appropriate.

      II. Standard of Review.

      On the issue of sufficiency of the evidence, we review claims for

correction of errors at law. State v. McCullah, 

787 N.W.2d 90, 93

 (Iowa

2010).   A jury verdict finding of guilt will not be disturbed if there is

substantial evidence to support the finding.     See State v. Torres, 

495 N.W.2d 678, 681

 (Iowa 1993). We consider all the evidence in the record

and not just the evidence supporting the finding of guilt. 

Id.

 The record

is viewed in the light most favorable to the State.      

Id.

   “Substantial

evidence must do more than raise suspicion or speculation,” State v.

Williams, 

695 N.W.2d 23, 27

 (Iowa 2005), it must “convince a rational

trier of fact that the defendant is guilty beyond a reasonable doubt,”

Torres, 

495 N.W.2d at 681

; see Williams, 

695 N.W.2d at 27

; State v.

Corsi, 

686 N.W.2d 215, 218

 (Iowa 2004).

      On the issue of the defendant’s statutory right to barrier-free

contact with counsel, we review the defendant’s challenge of the district

court’s interpretation of Iowa Code section 804.20 for correction of errors

at law. See State v. Gonzalez, 

718 N.W.2d 304, 307

 (Iowa 2006).

     III. Discussion of Sufficiency of the Evidence to Support
Finding of Confinement Under Iowa’s Kidnapping Statute.

      A. Introduction.    The concept of the crime of kidnapping has

been with us for a long time.     At common law, the misdemeanor of

kidnapping required removal of the victim out of the country. See Natalie

A. Kanellis, Kidnapping in Iowa: Movements Incidental to Sexual Abuse,
                                        7

67 Iowa L. Rev. 773

, 775 (1982) [hereinafter Kanellis]; see also 2 Charles

E. Torcia, Wharton’s Criminal Law § 207, at 491–92 (15th ed. 1994).

Following the common law example, early state kidnapping statutes,

including Iowa’s, required removal out of the state. See Kanellis, 67 Iowa

L. Rev. at 775 & n.30 (citing 

Iowa Code § 2588

 (1851) (repealed by Iowa

Acts ch. 1245, ch. 1 § 1001)). The original penalty for kidnapping was

not usually severe. Id. at 776. In Iowa, the original kidnapping penalty

was imprisonment for five years or a $1000 fine. Id. at 776 n.31 (citing

Iowa Code § 2588

 (1851)).

      In   the   twentieth   century,       however,   the   relatively   narrow

kidnapping statutes were replaced with broader statutes. See 

id.

 at 776–

77.   After the kidnapping crimes of prohibition and the Lindbergh

tragedy, legislatures often wanted to ensure that kidnapping statutes

included holding a person for ransom. See Note, A Rationale of the Law

of Kidnapping, 

53 Colum. L. Rev. 540

, 540 & n.2 (1953) [hereinafter A

Rationale of the Law of Kidnapping]; see also Kanellis, 67 Iowa L. Rev. at

776–77.    Eventually, state kidnapping statutes expanded to include a

host of other dangerous circumstances, often using expansive terms and

including removal or confinement in the commission of serious felonies

such as robbery and sexual abuse. See Kanellis, 67 Iowa L. Rev. at 777.

In addition to expanding the scope of kidnapping, the new statutes

generally significantly increased the penalty for the crime. See id. As a

result, kidnapping statutes embraced a wide and ill-defined range of

behavior which could lead to the most severely punished offenses. See A

Rationale for the Law of Kidnapping, 53 Colum. L. Rev. at 541–43.

      Iowa joined the national trend when revising its criminal code in

1976. As noted by one commentator, a legislative study committee “felt

that the kidnapping statute . . . [was] too narrow to adequately deal with
                                      8

present-day problems.        The scope of the offense was expanded

accordingly.”   John J. Yeager, Crimes Against the Person: Homicide,

Assault, Sexual Abuse, and Kidnapping in the Proposed Iowa Criminal

Code, 

60 Iowa L. Rev. 503

, 526 (1975). The revised criminal code thus

expanded Iowa’s kidnapping statute to apply when an accused “confines

a person or removes a person from one place to another” with “the intent

. . . to subject the person to a sexual abuse.”          

Iowa Code § 710.1

(3)

(1979). The penalty in Iowa for kidnapping in the first degree was also

increased to life in prison. 

Id.

 § 710.2; id. § 902.1.

      Expanded kidnapping statutes, however, have proved problematic.

Taken literally, the statutes could convert every robbery or every sexual

abuse into kidnapping with significantly enhanced penalties, as these

crimes invariably involve at least some confinement or removal.            A

substantial body of academic literature arose cautioning that the

kidnapping statutes should not be allowed to swallow traditional

gradations in crime.     See B.E.H., Judicial Construction of Kidnapping

Statutes, 

15 Alb. L. Rev. 65

, 73–74 (1951) (noting the harshness of

application of kidnapping statute to felonies and the vesting of the

prosecuting attorney with sole power to charge a person with a much

harsher crime); Lonnie E. Woolverton, Note, Kidnapping and the Element

of Asportation, 

35 S. Cal. L. Rev. 212

, 217 (1962) (noting it is for the

courts to reasonably apply the statute to ensure there is a taking and

carrying away of such magnitude as to warrant a kidnapping conviction);

A Rationale of the Law of Kidnapping, 53 Colum. L. Rev. at 557 (noting

extremely harsh penalties may be imposed for conduct of relatively little

seriousness); Note, Movement Incidental to the Commission of a Crime

Held Insufficient to Support Indictment for Simple Kidnapping in California,

110 U. Pa. L. Rev. 293

, 294 (1961) (noting convictions for “standstill”
                                     9

robberies); Note, Room-to-Room Movement: A Risk Rational for Aggravated

Kidnapping, 

11 Stan. L. Rev. 554

, 555 (1959) (observing California

kidnapping statute’s sweeping inclusion of any movement in the

nonransom situation or any detention for extortion has opened the door

to broad interpretations that cannot be justified in terms of rationale

supporting aggravated kidnapping).

      The potential broad application of very serious penalties was

addressed by the American Law Institute (ALI) in its Model Penal Code.

In its introductory note, the ALI noted that “[m]any prior kidnapping

statutes combined severe sanctions with extraordinarily broad coverage,

to the effect that relatively trivial restraints carried authorized sanctions

of death or life imprisonment.” Model Penal Code, Explanatory Note for

§§ 212.1–.5, 10A U.L.A. 421 (2001).        Because of this extraordinary

imbalance, the Model Penal Code kidnapping provisions were “designed

to effect a major restructuring of the law of kidnapping.” Id. Under the

Model Penal Code, a defendant could be convicted of kidnapping in

connection with an underlying crime only if the removal occurred over “a

substantial distance” or if the confinement occurred over “a substantial

period [of time] in a place of isolation.” Id. § 212.1, 10A U.L.A. at 422–

23.

      Courts struggled with the question of whether the new kidnapping

statutes should be applied literally or whether there should be some

limiting construction under the theory that the legislature did not intend

to abolish the distinctions between various crimes and kidnapping that

would result from the literal reading of the statutes. Some early cases

took a literalist view that any movement or any confinement could be

sufficient to support a kidnapping conviction under applicable state

statutes. See State v. Jacobs, 

380 P.2d 998

, 1002–03 (Ariz. 1963) (en
                                     10

banc) (moving victim at knife point from bathroom to screened porch

sufficient movement); People v. Chessman, 

238 P.2d 1001, 1017

 (Cal.

1951) (en banc) (“It is the fact, not the distance, of forcible removal which

constitutes kidnapping in the state.”), overruled by People v. Daniels, 

459 P.2d 225, 238

 (Cal. 1969); State v. Morris, 

160 N.W.2d 715

, 717–18

(Minn. 1968) (moving victim only 100 to 150 feet sufficient to support

kidnapping charge). These courts often observed that the legislature had

not adopted the language of the Model Penal Code. See, e.g., Morris, 

160 N.W.2d at 717

 (noting the Minnesota legislature chose not to follow the

Model Penal Code and omitted any qualification as to time or distance of

removal).

      A substantial line of authority emerged to the contrary. A leading

case embracing the view that kidnapping statutes should be subject to a

limiting construction was People v. Levy, 

204 N.E.2d 842, 844

 (N.Y.

1965).      In this case, the New York Court of Appeals reviewed a

kidnapping conviction in which defendants stopped the victims’ car, got

in, and demanded jewelry and cash while the car traveled a distance of

twenty-seven blocks. 

Id. at 843

. The Levy court acknowledged that the

applicable kidnapping statute was broadly written to include any

restraint of a victim, however, the court declared the kidnapping statute,

so construed, “could literally overrun several other crimes, notably

robbery and rape, and in some circumstances assault, since detention

and sometimes confinement, against the will of the victim, frequently

accompanies these crimes.”        

Id. at 844

.     The Levy court further

concluded that:

            It is unlikely that these restraints, sometimes
      accompanied by asportation, which are incidents to other
      crimes and have long been treated as integral parts of other
      crimes, were intended by the Legislature in framing its broad
                                      11
       definition of kidnapping to constitute a separate crime of
       kidnapping, even though kidnapping might sometimes be
       spelled out literally from the statutory words.

Id.

   The general rationale in Levy has been adopted in a number of

jurisdictions and now represents the majority view. See, e.g., Daniels,

459 P.2d at 235–38; People v. Bridges, 

612 P.2d 1110

, 1116–17 (Colo.

1980) (en banc); State v. Reiman, 

284 N.W.2d 860

, 873–74 (S.D. 1979);

see also Frank J. Wozniak, Annotation, Seizure or Detention for Purpose

of Committing Rape, Robbery, or Other Offense as Constituting Separate

Crime of Kidnapping, 

39 A.L.R.5th 283

, 356 & n.4 (1996 & Supp. 2014)

[hereinafter Wozniak] (citing cases and noting that “the majority view is

that kidnapping statutes do not apply to unlawful confinements or

movements ‘incidental’ to the commission of other felonies”).

       Levy is sometimes characterized as embracing what has become

known as the “incidental” rule or approach to kidnapping statutes. See

Bridges, 

612 P.2d at 1117

. The general notion is that when confinement

or removal is part-and-parcel of an underlying crime such as robbery or

sexual abuse, such removal or confinement is considered incidental to

the underlying crime and does not provide a basis for a separate

kidnapping prosecution. In order for an accused to be charged with both

kidnapping and the underlying felony, the confinement or removal must

be in excess or beyond that normally associated with the underlying

crime.

       Even   among   courts   that    have   departed   from   a   literalist

interpretation and adopted the incidental approach, however, there are

substantial questions of scope and application.      What exactly does it

mean for confinement or removal to be incidental to other crimes?

Where does a court draw the line between confinement or removal that is

merely incidental and that which supports a conviction of both
                                    12

kidnapping, with its harsh penalties, and the underlying crime?         See

Wozniak at 355–58 (noting different tests for determining whether

confinement or removal is sufficient to support conviction of kidnapping

and the underlying crime). See generally John L. Diamond, Kidnapping:

A Modern Definition, 

13 Am. J. Crim. L. 1

, 4–30 (1985) [hereinafter

Diamond]   (outlining   various   approaches   in   California,   New York,

Michigan, Kansas, and under the Model Penal Code).

      In general, the approaches to kidnapping in the context of the

commission of other crimes fall into five broad categories.        The first

category is the traditional “any movement” cases that reject the rationale

of Levy and apply kidnapping statutes literally.    Under this approach,

any movement or any confinement, however slight, could expose a

defendant to kidnapping for conduct which occurred in the course of

committing another felony.    See, e.g., Jacobs, 380 P.2d at 1002–03;

Chessman, 

238 P.2d at 1017

.

      The second category of cases hold that movements or confinements

intended to facilitate the commission of lesser crimes should be

considered incidental to the lesser crime and thus do not give rise to

kidnapping. Thus, in Levy, 204 N.E.2d at 843–45, the New York Court of

Appeals held that an abduction of the victims from in front of their home

and driving them a distance of twenty-seven blocks to rob them of their

money and jewelry did not give rise to kidnapping. Similarly, in People v.

Lombardi, 

229 N.E.2d 206

, 207–08 (N.Y. 1967), the New York Court of

Appeals reversed kidnapping convictions in which the defendant drugged

women, drove them from Manhattan to a motel in Queens, and held

them there for a number of hours as part of attempted sexual assaults.

The court held that the confinements involved were incidental to the

attempted rapes. 

Id. at 209

; see also Daniels, 459 P.2d at 226–28, 238
                                     13

(holding evidence insufficient to support kidnapping in four rapes in

which (1) attacker held knife to victim and forced her into car where he

raped her; (2) assailants forced their way into victim’s home, walked

victim through dining room into kitchen, put dishtowel over her face, and

raped her; (3) attackers forced way into victim’s apartment, one pulled

out gun, took victim to couch for oral sex, then took her into adjoining

bathroom, raped her, and threatened to rip out phone; and (4) assailants

forced their way into victim’s apartment at gunpoint, put hand over

victim’s mouth, walked her toward kitchen and then to bedroom,

checking first to see if anyone was present, and then raped her). The

“facilitate is incidental” approach removes many cases from kidnapping

that might otherwise fall within the literal terms of the statutes.

      The Supreme Court of Kansas in State v. Buggs, 

547 P.2d 720

(Kan. 1976), launched a third line of cases that were less protective of

defendants but still removed some situations in which there was removal

or confinement from the ambit of kidnapping statutes.           In Buggs, a

woman leaving a store with her son was accosted, told not to try

anything, and was forced back into the store, where she was forced down

on the floor and was raped by an assailant brandishing a knife. 

Id.

 at

723–24.   The Buggs court rejected the approach of Levy noting that

under the applicable Kansas statute, facilitation of an underlying offense

constituted kidnapping. 

Id.

 at 730–31. The Buggs court also rejected

the approach in Daniels, which placed strong emphasis on the increased

risk of harm as an indispensable element for kidnapping in the context of

an underlying felony. 

Id. at 731

. The Buggs court noted that lessening

the risk of detection may also trigger kidnapping. 

Id.

                                    14

       The Buggs court developed a three-pronged test to determine

       if a taking or confinement is alleged to have been done to
       facilitate the commission of another crime, to be kidnapping
       the resulting movement or confinement:
               (a) Must not be slight, inconsequential, and merely
       incidental to the other crime;
               (b) Must not be the kind inherent in the nature of the
       other crime; and
               (c) Must have some significance independent of the
       other crime in that it makes the other crime substantially
       easier of commission or substantially lessens the risk of
       detection.

Id.

 The Buggs court offered some examples to illuminate its principles.

According to the Buggs court:

       A standstill robbery on the street is not kidnapping; the
       forced removal of the victim to a dark alley for robbery is.
       The removal of a rape victim from room to room within a
       dwelling solely for the convenience and comfort of the rapist
       is not a kidnapping; the removal from a public place to a
       place of seclusion is.

Id.

   Applying its test, the Buggs court concluded the conduct of the

defendants constituted kidnapping. 

Id.

 at 731–32. The court noted the

robbery could have been accomplished outside the store, but instead, the

defendants forced the victims inside to relative seclusion.     

Id. at 731

.

The movement, though slight, substantially reduced the risk of detection.

Id.

 at 731–32.   Therefore, the court held there was a “confinement to

‘facilitate’ the commission of the robbery and rape.” 

Id. at 732

.

       The approach in Buggs was largely followed by the Florida

Supreme Court in Faison v. State, 

426 So. 2d 963

 (Fla. 1983). In Faison,

the accused dragged a receptionist “from her desk in front of a large

window to the rear of the office where he sexually assaulted her[,]”

“forced her into a nearby restroom and raped her again.” 

Id. at 964

. In a

second incident, the defendant broke into the victim’s home, violently

dragged her from the kitchen to the bedroom, and raped her. 

Id.

                                           15

       The Faison court adopted the Buggs test. 

Id. at 966

. In applying

it, the Faison court concluded the evidence supported kidnapping

convictions.    

Id.

   The court noted the sexual assault could have been

committed “on the spot” without any movement, and because the victims

were moved through doors to a more secluded area, the defendant’s

actions substantially lessened the risk of detection. 

Id.

       It is noteworthy, however, that the Faison court drew a strong

dissent. According to Justice Boyd, the general principle adopted by the

majority, namely, that detentions or removals that are merely incidental

to the commission of other felonies should not give rise to a kidnapping

prosecution, was correct. 

Id. at 968

 (Boyd, J., concurring in part and

dissenting in part).            Justice Boyd, however, argued movement or

confinement     is    incidental       unless   it   has   “sufficient    independent

significance    to    justify    the    [separate    charge     and    conviction]   for

kidnapping.” 

Id. at 969

. In order to make that determination, Justice

Boyd urged consideration of a number of factors including “location,

duration,   method,       manner,        and    purpose    of    the     abduction   or

confinement.” 

Id. at 968

. According to Justice Boyd, the factors should

be considered

       not only in the light of whether the abduction or confinement
       facilitates the commission of another crime, but also, and
       principally, in light of whether the factors expose the victim
       to a risk of physical or mental harm substantially greater
       than the risk of harm ordinarily encountered by the victim of
       the forcible felony being committed.

Id.

   He implicitly rejected the notion that a conviction for kidnapping

could be upheld when the defendant’s action simply facilitated making

the crime easier to commit or less susceptible to detection. 

Id. at 969

.

The approach of the dissent in Faison—namely, focusing on the

substantial increase in the risk of harm—has been adopted in the
                                    16

District of Columbia.   See Nelson v. United States, 

601 A.2d 582, 598

(D.C. 1991) (noting that in determining whether confinement is

significant to warrant an independent prosecution of kidnapping turned

on “whether the kidnapping substantially increased the risk of harm to

the victim beyond that inherent in the underlying crime”); see also Wright

v. State, 

581 P.2d 442

, 443–44 (Nev. 1978), modified in part by Mendoza

v. State, 

130 P.3d 176

, 180 & n.19 (Nev. 2006) (noting that dual

convictions are proper “where the movement or restraint serves to

substantially increase the risk of harm to the victim over and above that

necessarily present in an associated offense . . . or where the seizure,

restraint or movement of the victim substantially exceeds that required

to complete the associated crime charged”).

      A fourth line of cases adopted a multifactored approach to

determining if there is sufficient evidence independent of the underlying

felony to support kidnapping. The leading case is Government of Virgin

Islands v. Berry, 

604 F.2d 221, 227

 (3d Cir. 1979). In Berry, the court

identified four factors to be considered, namely

      (1) the duration of the detention or asportation; (2) whether
      the detention or asportation occurred during the commission
      of a separate offense; (3) whether the detention or
      asportation which occurred is inherent in the separate
      offense; and (4) whether the asportation or detention created
      a significant danger to the victim independent of that posed
      by the separate offense.

Id.

   The Berry approach has been followed by a number of other

jurisdictions.   See, e.g., Garza v. State, 

670 S.E.2d 73, 78

 (Ga. 2008)

(noting the factors are to be reviewed as a whole and that not all four

factors need be established to sustain a kidnapping conviction),

superseded by statute in part, 

Ga. Code Ann. § 16-5-40

, as stated in

Inman v. State, 

755 S.E.2d 752

, 755 & n.2 (Ga. 2014); State v. Stouffer,
                                     17

721 A.2d 207, 215

 (Md. 1998) (adopting a slightly different multifactored

approach); see also United States v. Howard, 

918 F.2d 1529

, 1535–37

(11th Cir. 1990).

      Finally, a number of jurisdictions, often after legislative action,

follow the approach of the Model Penal Code. These jurisdictions require

that confinement occur in a “place of isolation” for a “substantial period”

of time. See, e.g., State v. Bunker, 

436 A.2d 413

, 416 & n.3 (Me. 1981);

State v. Brent, 

644 A.2d 583, 589

 (N.J. 1994).

      The choice of test for determining whether kidnapping may be

supported when there is an underlying felony is critical to outcomes.

Under the New York approach in Levy and its progeny, many if not most

robberies and sexual assaults will not give rise to kidnapping charges,

while, in contrast, under the Arizona approach in Jacobs, only standstill

robberies and sexual assaults are outside the scope of kidnapping

statutes. Compare Levy, 

204 N.E.2d at 844

, with Jacobs, 380 P.2d at

1002–03.   The approach in Buggs and related cases appears to be an

intermediate approach, refusing to limit the scope of kidnapping statutes

unless movement or confinement in excess of a standstill crime is

“significant” or “substantial” under various tests. See Faison, 

426 So. 2d at 966

; Buggs, 547 P.2d at 730–32.

      The selection of a particular legal framework, however, does not

resolve all controversies. Regardless of the test adopted, there have been

serious controversies surrounding the application of any test to

particular factual settings. As noted by one court, the applicable test “is

not an easy one to apply.”    Berry v. State, 

668 So. 2d 967, 970

 (Fla.

1996).   Another court has noted the hundreds of reported decisions

broken down into many discrete categories with “cases sustaining and

cases reversing separate kidnapping convictions.” Stouffer, 

721 A.2d at 18

213.   The difficulty of applying legal principles to the facts at hand is

demonstrated by the frequency of dissents in important cases involving

the application of kidnapping statutes in which there are other

underlying crimes. See, e.g., People v. Martinez, 

973 P.2d 512

, 544–48

(Cal. 1999) (Mosk, J., dissenting); People v. Rayford, 

884 P.2d 1369

,

1382–84 (Cal. 1994) (Mosk, J., dissenting); Ferguson v. State, 

533 So. 2d 763, 765

 (Fla. 1988) (Kogan, J., dissenting); Faison, 426 So. 2d at 967–

69 (Boyd, J., concurring in part and dissenting in part); Tindall v. State,

45 So. 3d 799

, 803–04 (Fla. Dist. Ct. App. 2010) (Farmer, J., dissenting);

Garza, 670 S.E.2d at 80–84 (Carley, J., dissenting); State v. Burton, 

649 So. 2d 694, 700

 (La. Ct. App. 1994) (Saunders, J., concurring in part and

dissenting in part); State v. Rosling, 

180 P.3d 1102

, 1119–21 (Mont.

2008) (Warner, J., concurring in part and dissenting in part); State v.

Wooten, 

374 A.2d 1204

, 1204–11 (N.J. 1977) (per curiam) (Pashman, J.,

dissenting) (affirming, by equally divided court, kidnapping conviction);

State v. Dixon, 

957 S.W.2d 532, 536

 (Tenn. 1997) (Reid, J. dissenting),

overruled by State v. White, 

362 S.W.2d 559, 578

 (Tenn. 2012); State v.

Finlayson, 

956 P.2d 283

, 295–96 (Utah Ct. App. 1998) (Wilkins, J.,

concurring in part and dissenting in part); see also Diamond, 13 Am. J.

Crim. L. at 27 n.147 (noting the difference in application of the Buggs

test by the Kansas courts and the more liberal application of the same

test by Florida courts); Mark M. Dobson, Criminal Law: 1996 Survey of

Florida Law, 

21 Nova L. Rev. 101

, 105 (1997) (noting “[the] test has been

easier to state than to apply”); Jane Albertson, Note, Criminal Law:

Lowering the Threshold for Kidnapping to Facilitate a Felony, 

35 U. Fla. L. Rev. 528

, 533 (1983) (questioning application of test in a fashion that

drops kidnapping to an unquestionably low threshold).
                                    19

      Today, it is our turn to consider the difficult issues related to

kidnapping in the context of underlying criminal activity.

      B. Iowa Precedents on Confinement. Because this case involves

the question of what quantity and quality of evidence is required to

support a kidnapping conviction, a careful review of the facts of Iowa

caselaw, as well as the principles established in these cases, is essential

for a full understanding of the issues.        We therefore review our

kidnapping cases in detail.

      We first considered the question of the proper approach to

kidnapping in the context of the commission of another crime under our

current kidnapping statute in State v. Rich, 

305 N.W.2d 739

, 741–42

(Iowa 1981) (citing 

Iowa Code § 710.1

 (1979)). In Rich, viewing the facts

most favorable to the State, the defendant, a custodian, grabbed the

victim from behind in a shopping center, held a sharp object to her back,

led her down a corridor to the men’s restroom, forced her to lie down on

her stomach, tied her hands behind her back, took her into the restroom,

and sexually abused her.       Id. at 740.   After the sexual abuse, the

defendant took her out of the restroom; temporarily tied her to a

bannister with a rag and her bra, which had been ripped off; eventually

forced her into a three-wheeled trash container, covering her with trash;

and wheeled the trash container into a maintenance room, tying her feet.

Id. at 741. The defendant eventually wheeled her out of the maintenance

room back into the mall area, where she managed to tip the container

and run. Id. The defendant caught up with her, however, and placed

her back into the trash container before she was ultimately able to break

free and flee the scene. Id.

      Recognizing the question of whether to adopt the literal or

incidental approach as a question of first impression under our
                                           20

expanded kidnapping statute, 2 we began our discussion by canvassing

the approach to kidnapping statutes in other states. Id. at 742–45. We

recognized that some courts adopted a literalist view of confinement or

removal in their broadly framed kidnapping statutes. Id. at 742 (citing

Jacobs, 

380 P.2d at 1002

). We quoted at length, however, from Levy, for

the proposition that broad interpretation of kidnapping statutes could

lead to results unintended by the legislature. 

Id.

 at 742–43. While we

cited favorably the policy rationale in Levy and Daniels, we recognized

that in Kansas and Florida the courts seemed to “be giving a restricted

application to the New York and California rules,” 

id.

 at 744–45, and “the

manner in which rules [related to interpretation of kidnapping statutes in

the context of other crimes] are applied differs substantially among the

states,” id. at 743.

       After canvassing the cases, we came down firmly on the side of the

cases adopting the incidental rule.             Id. at 745.     We recognized every

assault, rape, and robbery involves some act of intentional confinement

or movement.          Cf. id. (discussing sexual assault).               We reasoned

notwithstanding the unqualified language in Iowa Code section 710.1(3),

the legislature did not intend to give the prosecution a choice of two

penalties of such a disparate nature for sexual abuse.                   Id.   We noted

under Iowa law a conviction of first-degree kidnapping was punishable



       2A  few months prior to Rich, in State v. Holderness, 

301 N.W.2d 733

, 739–40
(Iowa 1981), we considered a kidnapping case in which the question of whether Iowa
should adopt the incidental approach to our new kidnapping statute was raised. The
evidence viewed most favorably to the State showed that the victim was transported by
automobile for several miles into the countryside to detain her in isolation and in secret,
where she was subjected to various acts of sexual abuse. 

Id. at 736, 740

. The
detention lasted for over two hours. 

Id. at 740

. Because we concluded that the State
offered sufficient evidence to support a kidnapping conviction even under the incidental
approach, we did not expressly decide the issue in that case. 

Id.

                                   21

by life in prison, while third-degree sexual abuse was punishable by no

more than ten years in prison. 

Id.

 Further, we doubted the legislature

intended the possibility of life in prison to apply to the “usual” case of

sexual abuse, in which some movement or confinement occurs. 

Id.

 We

declared such a literal interpretation of the statute “would not be

sensible or just.” 

Id.

 We thus concluded the legislature intended that

the kidnapping statute be applicable only in situations in which the

“confinement or removal definitely exceeds that which is merely

incidental to the commission of sexual abuse.” 

Id.

      The question remained how to determine what confinement or

removal is incidental.   In now oft quoted language, the Rich court

concluded

      that our legislature, in enacting section 710.1, intended the
      terms “confines” and “removes” to require more than the
      confinement or removal that is an inherent incident of
      commission of the crime of sexual abuse. Although no
      minimum period of confinement or distance of removal is
      required for conviction of kidnapping, the confinement or
      removal must definitely exceed that normally incidental to
      the commission of sexual abuse . . . . Such confinement or
      removal may exist because it substantially increases the risk
      of harm to the victim, significantly lessens the risk of
      detection, or significantly facilitates escape following the
      consummation of the offense.

Id.

 (emphasis added).
      The heart of Rich was the three-pronged test used for determining

whether confinement or removal exceeded that normally incident to the

commission of sexual abuse. 

Id.

 at 745–46. Whether any element of this

three-pronged test was satisfied would depend upon the totality of the

facts. 

Id. at 746

.

      Applying our approach to the incidental rule, in Rich we concluded

the confinement and removal supported the defendant’s conviction of

kidnapping. 

Id.

 We noted that merely moving the victim from the mall to
                                    22

the restroom, in and of itself, was not sufficient to support a kidnapping

conviction. 

Id. at 745

. We observed, however, that although the doors of

the shopping center were locked, the defendant first looked into the

restroom and was moving the victim to the bathroom not for comfort, but

for seclusion. 

Id.

 In addition, the defendant had bound the victim, not a

normal incident of a sexual attack. 

Id.

 at 745–46. Further, subsequent

to the sexual attack, the confinement of the victim continued in a fashion

not incidental to the sexual attack. 

Id. at 746

. Under the totality of the

facts, we concluded the State had offered sufficient evidence to engender

a jury question and avoid a directed verdict of acquittal on the

kidnapping charge. 

Id.

      We applied the Rich tripartite test in State v. Knupp, 

310 N.W.2d 179

, 182–83 (Iowa 1981). In Knupp, the defendant picked up the victim

in his car on New Year’s Eve as she walked across an icy bridge over the

Mississippi River. 

Id. at 181

. The State offered evidence to show that the

victim left the defendant’s car at the tollbooth, but a short time later, he

returned, opened the passenger door, and asked if she wanted a ride. 

Id.

The defendant then seized her by the arm, pulled her into the car, and

drove away. 

Id.

 After driving six or seven blocks, the defendant stopped

the vehicle under an overpass. 

Id.

 After the victim managed to alight

from the car, the defendant hit her several times, cut through her

clothing with a knife, and forced her back into the vehicle where he

committed the sexual act. 

Id.

      In Knupp, we repeated the tripartite test announced in Rich. 

Id.

 at

182–83.   Applying the Rich test to the facts, we held in a somewhat

conclusory fashion that the conduct of the defendant substantially

exceeded that which could have been considered incidental because it
                                       23

substantially increased the risk of harm and significantly lessened the

risk of detection. 

Id. at 183

.

      In State v. Marr, 

316 N.W.2d 176, 180

 (Iowa 1982), however, we

concluded the State failed to produce sufficient evidence under the Rich

tripartite test to support a kidnapping conviction.          In Marr, the State

produced evidence tending to show the defendant followed the victim by

foot when she left a drug store at 10:00 p.m.            

Id. at 177

.   When the

victim was outside her residence, the defendant grabbed her, clamped

his hand over her mouth, threatened her not to scream, slammed her

against the corner of the building, shoved her to the ground, and dragged

her some ten to fifteen feet into a gangway near the victim’s house. 

Id.

 at

177–78. At that point, the defendant began to sexually abuse the victim,

who could not scream or breathe because the defendant clutched her

throat. 

Id. at 178

. Her husband, however, interrupted the attack, which

lasted two or three minutes. 

Id.

      In Marr, we held that the State failed to offer sufficient evidence to

support kidnapping under the Rich tripartite test.          

Id.

 at 179–80.   We

emphasized the intensifiers in Rich, expressly stating that under Rich,

the necessary additional confinement or removal may be present when

the actions of the defendant “substantially” increased the risk of harm,

“significantly” lessened the risk of detection, or “significantly” facilitated

escape.    

Id.

 at 178–79.        We further cited the Model Penal Code’s

emphasis    on   preventing      robbery    and   rape   from   escalating   into

kidnapping, 

id.

 at 180 (citing Model Penal Code & Commentaries Part II

§ 212.1 cmt. 1 (1980)), and a leading Iowa authority for the proposition

that to be punishable for kidnapping, the removal or confinement must

“ ‘add substantially to the heinousness of the sexual abuse,’ ” id. (quoting

John L. Yeager & Ronald L. Carlson, Iowa Practice: Criminal Law and
                                    24

Procedure 66 (1979) [hereinafter Yeager & Carlson]). We contrasted the

facts of the case with Rich, in which the totality of evidence supported

movement for purposes of seclusion, including the binding of the victim’s

hands and subsequent confinement.        Id. at 178–79 (citing Rich, 305

N.W.2d at 745–46). With respect to Knupp, we noted in that case, the

defendant pulled the victim into his vehicle, drove for several blocks, hit

her several times, and forced her back into the car before the act of

sexual abuse occurred.     Id. at 179.   Under the facts of the case, we

concluded in Marr that the totality of the evidence was not enough to

support kidnapping. Id. at 179–80.

      We also found the evidence insufficient in our next kidnapping

case involving the underlying crimes of burglary and assault while

committing a felony. State v. Mead, 

318 N.W.2d 440, 445

 (Iowa 1982).

In Mead, the State offered evidence to show that when the victim and her

daughter approached the entrance to their home, the defendant emerged

and when they opened the door, walked into the house along with them.

Id.

 at 441–42.   The defendant grabbed the mother from the back and

held a knife to her throat, declaring, “ ‘[T]his woman is dead.’ ” 

Id. at 442

. After the mother freed herself and ran, the defendant struck the

daughter in the face and a struggle ensued over her purse.        

Id.

   The

defendant was charged with second-degree kidnapping, first-degree

burglary, and assault while participating in a felony. 

Id.

      After canvassing the evidence, we applied the Rich tripartite test in

a verbatim fashion concluding that the state failed to offer sufficient

evidence to support the kidnapping charge.      

Id. at 445

.   Although the

mother was seized for a moment, we distinguished the seizure from a

detention. 

Id.

 We observed that “unless we extend kidnapping to nearly

any case involving a seizure by a defendant of another person during the
                                   25

commission of a crime, which we refuse to do, the instant case does not

involve sufficient confinement to constitute kidnapping.” 

Id.

 Although

the mother may have been briefly confined in place, such an act was

insufficient to support a kidnapping conviction. 

Id.

      Since Marr, we have considered whether the evidence supported

kidnapping under the Rich tripartite test in a number of cases. In these

cases, we have sometimes noted that the confinement or removal

substantially exceeded that in Marr and Mead. For example, in State v.

Newman, 

326 N.W.2d 796

, 801–02 (Iowa 1982), we concluded there was

sufficient evidence of confinement to support a kidnapping conviction

when a seventh-grade student was walking to a friend’s house, was

enticed by the defendant to enter a truck by the showing of an apparent

police badge, was subsequently sexually assaulted and then driven on a

road to a location where there were no dwellings where a second sexual

assault occurred.

      Indeed, in all of our kidnapping cases subsequent to Marr and

Mead, we have found sufficient evidence to support a kidnapping

conviction under the Rich tripartite test. Most of these cases, however,

have involved settings in which confinement or removal beyond that

ordinarily associated with the underlying offense was clear.   See, e.g.,

State v. Griffin, 

564 N.W.2d 370

, 372–73 (Iowa 1997) (affirming

kidnapping conviction when evidence showed that defendant and victim

went to motel where defendant choked, beat, and sexually assaulted her;

ordered her to disrobe to prevent her from leaving; told sister who was

checking on victim to leave; and continued to confine the victim after

assault); McGrew, 

515 N.W.2d at 38

, 39–40 (affirming kidnapping

conviction when defendant entered victim’s bedroom; placed his hand

over her face and mouth; tied her hands behind her back and taped
                                         26

around her mouth, head, and neck; forced victim into hallway outside

her bedroom, down stairway, then back into bedroom; touched steel

object to her and sexually abused her; then after attack got up and

walked around bed thirty times, searching through drawers and closets,

with victim waking up hours later); State v. Hatter, 

414 N.W.2d 333, 335, 338

 (Iowa 1987) (affirming kidnapping conviction when defendant

grabbed victim after she left junior high, forced victim into car at

knifepoint, handcuffed her, drove five miles to a rural area, engaged in

sexual abuse, and released her under promise not to say anything only

after car got stuck in mud); State v. Misner, 

410 N.W.2d 216

, 217–18,

223–24 (Iowa 1987) (affirming kidnapping conviction when inmates

armed with shanks and knifes captured and detained five guards on one

floor, forced officer to release a number of prisoners, locked up a guard

in a storage room, bound guards with tape, and claimed guards were

held “hostage” and that demands would be forwarded); State v. Hardin,

359 N.W.2d 185, 187, 190

 (Iowa 1984) (affirming kidnapping conviction

on evidence that victim drove defendant home from bar, defendant hit

victim in face, dragged her from vehicle, and forced her inside his house

for sexual assault); 3 State v. Ristau, 

340 N.W.2d 273, 274, 276

 (Iowa

1983) (affirming kidnapping conviction on evidence similar to that in

Newman); State v. Folck, 

325 N.W.2d 368

, 370–71 (Iowa 1982) (affirming

conviction when victim held over extended period of several hours and

was   taken    to   secluded    spot    where    detection    was   unlikely    and


        3In Hardin, 359 N.W.2d at 189–90, we were asked to consider revising the Rich

tripartite test by eliminating the detection and escape prongs and focusing entirely
upon the substantial risk of harm beyond that ordinarily incident to the underlying
felony. This position was advocated in the pages of the Iowa Law Review and has some
support in the caselaw. Kanellis, 67 Iowa L. Rev. at 800–01. We declined in Hardin to
revise the Rich tripartite test. See 

359 N.W.2d at 190

.
                                          27

substantially increased risk of harm if victim tried to defend herself or

escape).

       While these cases found that kidnapping convictions were

supported based on the evidence, they repeatedly endorsed Rich as

providing the proper legal framework for analyzing the sufficiency of the

evidence. For instance, in Misner, 

410 N.W.2d at 222

, the court reprised

the Rich tripartite test, noting that confinement or removal must exceed

that normally incident to the underlying crime and that confinement or

removal sufficient to support a charge of kidnapping may exist if the

evidence shows the confinement or removal substantially increased the

risk of harm, significantly lessened the risk of detection, or significantly

facilitated the escape of the perpetrator. According to Misner, the Rich

standards were “unquestionably the law in Iowa today.” 

Id.

 We referred

to the Rich tripartite test, with the three intensifiers, in all of our

subsequent cases involving kidnapping in the context of the commission

of other crimes. See Griffin, 

564 N.W.2d at 373

; McGrew, 

515 N.W.2d at 39

; Hatter, 414 N.W.2d at 335–36; State v. Doughty, 

359 N.W.2d 439, 440

 (Iowa 1984); Hardin, 

359 N.W.2d at 189

; Newman, 

326 N.W.2d at 801

; Folck, 

325 N.W.2d at 371

; Mead, 318 N.W.2d at 443–44; Marr, 

316 N.W.2d at 178

; Knupp, 

310 N.W.2d at 183

. 4


       4In most of the incidental rule cases, the defendant is convicted of an underlying
crime such as robbery or sexual abuse. Here, the underlying crime of sexual abuse was
dismissed prior to trial. There is a question whether the incidental rule applies when
the underlying charge is dismissed. Cf. People v. Salimi, 

552 N.Y.S.2d 964

, 964–65
(App. Div. 1990) (holding kidnapping and underlying crime could be merged even when
defendant has been acquitted of underlying charge); State v. French, 

428 A.2d 1087, 1088

 (Vt. 1981) (noting merger of crimes has no application to a situation in which no
conviction was obtained on the underlying crime). The State does not contend,
however, that the incidental rule does not apply because of the dismissal of the
underlying sexual abuse charge. As a result, we assume the incidental rule applies in
this case.
                                     28

       C. Application of the Rich Tripartite Test. The challenge here

is applying the Rich tripartite test to a case in which the evidence

supporting independent confinement is markedly less than in many of

our cases, but in which there is evidence showing something more than a

mere “standstill offense.”     Our cases have generally held that the

substantially-increased-risk-of-harm prong of the Rich tripartite test may

be satisfied if the duration of confinement substantially exceeds that of

the underlying crime. See, e.g., Griffin, 

564 N.W.2d at 373

 (noting victim

held   overnight);   McGrew,   

515 N.W.2d at 40

     (noting   four   hour

confinement).   Here, however, the duration of the confinement did not

significantly exceed that associated with the underlying sexual abuse.

While the victim was dragged from the hallway to the bedroom, the few

seconds of additional confinement stemming from this conduct contrasts

sharply with other cases in which the duration of the confinement clearly

exceeded the time required for the underlying sexual assault. It is hard

to say the few extra seconds of confinement within the apartment

significantly increased the risk of harm to the victim.

       With respect to manner of confinement, our cases often emphasize

the use of a weapon or the binding of the defendant in a fashion that

exceeds confinement ordinarily incident to sexual abuse.             See, e.g.,

Griffin, 564 N.W.2d at 372–73 (The victim was beat and sexually

assaulted with a bottle.); McGrew, 

515 N.W.2d at 38

, 39–40 (The victim’s

hands were tied behind her back and tape was placed around her mouth,

head, and neck; further, defendant had a knife and gun with him during

attack.); Hatter, 

414 N.W.2d at 335, 338

 (The victim was forced into

defendant’s car at knifepoint.); Knupp, 

310 N.W.2d at 181

 (The defendant

cut through victim’s clothing with a knife.); Rich, 305 N.W.2d at 740–41

(The victim’s hands and feet were bound.). In this case, the defendant
                                    29

did not use a weapon or bind the victim. He did place his hand over the

victim’s mouth, but such contact in and of itself was found insufficient to

support a kidnapping conviction in Marr, 

316 N.W.2d at 177, 179

. Thus,

an important factual feature of many of our cases upholding kidnapping

convictions—the use of a weapon or the binding of the victim beyond that

needed to accomplish sexual abuse—is not present here.

      There was, however, at least some additional evidence that may be

cited as increasing the risk of harm or lessening the possibility of

detection. The State offered evidence that the defendant locked the front

door of the apartment and the door to the bedroom during the incident.

And, the State offered evidence that prior to the alleged sexual assault

the defendant grabbed the victim’s cell phone and threw it over a chair in

the living room.

      Overall, the evidence is less substantial than in many of our

kidnapping cases. But that is not the question. The question is whether

it is so insubstantial that, as a matter of law, the defendant’s kidnapping

conviction cannot stand.

      There are filaments in our cases that point in both directions. For

instance, in Griffin, 

564 N.W.2d at 373

, the defendant confined the victim

after the sexual assault by preventing her from making contact with

others, thereby lowering the risk of detection. It could be argued that by

seizing the victim’s cell phone and throwing it over a chair, the defendant

accomplished the same thing. A cell phone, however, ordinarily does not

provide a realistic vehicle for exposing the crime when the confinement

for all practical purposes is limited to the period of time of the sexual

assault itself. And in Griffin, the confinement in the motel room lasted

overnight and into the next afternoon, far beyond that normally incident

to the crime of sexual abuse. 

Id.

                                    30

      In addition, the State offered evidence that the victim was confined

while being moved from the hallway into the bedroom and that the

defendant locked the doors to both the main door of the apartment and

the bedroom. In McGrew, 

515 N.W.2d at 40

, we held that the relatively

short movement of a victim into a bedroom for purposes of seclusion is a

factor that may be considered in determining whether a defendant may

be convicted of kidnapping during the course of committing another

felony. McGrew, however, also involved the binding of the hands and the

detention of the victim for a four-hour period, and thus under the totality

of circumstances, we concluded that there was a substantial increase in

the risk of harm. 

Id.

 at 39–40. In contrast to McGrew, we held in Marr

that the confinement associated with throwing a victim against the

corner of a house and dragging her ten to fifteen feet into a gangway

between houses was insufficient to support a kidnapping conviction.

316 N.W.2d at 177–78, 179.

      Except for the locking of the doors, this case seems roughly

analogous to Marr.     While the defendant did lock the doors to the

apartment and the bedroom, the victim was not locked in, rather, other

persons were locked out.      The doorway to the apartment was in a

residential structure which would ordinarily be locked at night when

there would be few curious passersby.       While this action may have

marginally lessened the risk of detection, the crime occurred within a

short period of time in the same enclosed space.      The victim was not

moved from a public to a private, more secluded, environment.

      While the underlying kidnapping statutes and applicable legal tests

in the various states are not identical and the facts have many

permutations, there is some authority from other jurisdictions for the

proposition that evidence like that offered here is insufficient to support
                                     31

kidnapping. In Tindall, 

45 So. 3d at 800

, the state offered evidence that

at two different times the defendant grabbed each victim and pulled her

inside his home and into his bedroom, which he subsequently locked,

and sexually battered each victim. The Florida appellate court held that

the confinement lasted only so long as the actual battery. 

Id.

 at 802–03.

Further, citing applicable Florida authority, the Tindall court noted that

“ ‘there can be no kidnapping where the only confinement involved is the

sort that though not necessary to the underlying felony, is likely to

naturally accompany it.’ ” 

Id.

 at 803 (quoting Berry, 

668 So. 2d at 969

).

      Somewhat similar is State v. Goodhue, 

833 A.2d 861

 (Vt. 2003). In

Goodhue, the Vermont Supreme Court considered a case in which the

state offered evidence to show that the defendant entered through a

kitchen door and ordered a twelve-year-old girl into an adjoining

bathroom for purposes of sexual assault. 

Id. at 862

. The Goodhue court,

after canvassing the history of kidnapping and the problems of applying

Vermont’s statute literally, held that the additional confinement was

insufficient to support an independent prosecution for kidnapping. 

Id.

 at

864–69.

      Reading between the lines in Tindall and Goodhue, it appears there

may be some reluctance to find the independent crime of kidnapping

when the additional confinement or removal occurs within an enclosed

structure. Such additional confinement or movement within an enclosed

structure may not be a sufficiently significant change in the risk

environment to substantially increase the risk of harm, significantly

lessen detection, or significantly aid escape.
                                          32

       On the other hand, there is authority to the contrary. 5                     For

example, in a case resembling ours, in Burton v. State, 

426 A.2d 829

,

831–32, 835 (Del. 1981), the Delaware Supreme Court held that when a

defendant grabbed and twisted a victim’s arm, forced her to move from

room-to-room several times, and raped her twice, there was sufficient

confinement present to support a kidnapping conviction. In Burton, as

here, the length of time of any additional confinement was quite short,

approximately      thirty    minutes,     and    occurred     within    an    enclosed

structure. 

Id.

 at 832–33.

       The above cases are only meant to illuminate the problem.                    The

leading annotation on the subject currently boasts 549 pages of fine

squibs from the caselaw. Wozniak at 283–762 & Supp. 24–94. These

authorities could be endlessly sliced and diced but to little effect. That

said, there are a number of cases in which room-to-room movement has

been found sufficient and in which locked doors and telephone


       5Like  the confinement cases, the cases considering whether there was sufficient
removal to support a kidnapping charge when a victim is moved from one room to
another within an existing structure have reached differing results. In some cases, the
movement from one room to another within a structure has been held insufficient
removal to support a kidnapping charge. See, e.g., Buggs, 

547 P.2d at 731

 (“The
removal of a rape victim from room to room within a dwelling solely for the convenience
and comfort of the rapist is not a kidnapping.”); Goodhue, 

833 A.2d at 868

 (holding
movement of victim from kitchen to bathroom did not exceed confinement or removal
inherent in the commission of the crime of sexual assault). In other cases, such
removal has been found sufficient, often on the grounds that the movement made the
crime easier to commit or made detection less likely. See Faison, 

426 So. 2d at 966

(holding movement from kitchen to bedroom by substantial force made rapes easier to
commit and reduced the danger of detection, even though only short distance involved);
State v. Key, 

636 S.E.2d 816, 821

 (N.C. Ct. App. 2006) (holding “removal of [victim] from
one room to another was not mere asportation, but sufficient evidence of a separate and
independent act”); State v. Scott, No. 88AP-346, 

1988 WL 102010

, at *9 (Ohio Ct. App.
Sept., 29, 1988) (finding dragging victim back to bedroom and slamming the door closed
prevented her escape and pushing her causing her to fall increased the risk of harm).
According to one commentator, “[m]ost courts try to avoid kidnapping convictions when
movement is within the same room, or from room to room within a home or office.”
Kanellis, 67 Iowa L. Rev. at 797 n.187.
                                           33

disruption have been cited.            As with the Iowa cases, most of these

authorities from other jurisdictions contain more florid fact patterns than

this case. 6

       In the end, the question calls for an exercise of our judgment as to

whether, on the totality of the circumstances, the State offered sufficient

evidence that a jury could find beyond a reasonable doubt that the

defendant’s confinement of the victim substantially increased the risk of

harm, significantly lessened the risk of detection, or significantly

facilitated escape. Phrased somewhat differently, did the evidence of the

tossing of the cell phone, the locking of the doors, the covering of the

victim’s mouth, and any additional                  confinement associated with

movement of the victim from the hallway to the bedroom, all occurring

within the enclosed apartment, provide a sufficient basis to allow the jury

to regard the case as presenting more than sexual abuse but instead

involving the much more serious crime of kidnapping with its

substantially harsher penalties?




       6In addition, there are cases in which the locking of a door to keep others out

has been cited, with mixed results. See, e.g., Lewis v. State, 

50 So. 3d 86, 88

 (Fla. Dist.
Ct. App. 2010); Gray v. State, 

939 So. 2d 1095

, 1096–97 (Fla. Dist. Ct. App. 2006) (per
curiam); Irizarry v. State, 

905 So. 2d 160, 167

 (Fla. Dist. Ct. App. 2005); State v.
Johnson, 

646 S.E.2d 123

, 126–27 (N.C. Ct. App. 2007); State v. Smith, No. W2012-
00259-CCA-R3-CD, 

2013 WL 5938017

, at *6, 10 (Tenn. Crim. App. Nov. 4, 2013). More
compelling from the State’s point of view, however, are cases in which the victim is
locked in. See, e.g., People v. Vines, 

251 P.2d 943, 974

 (Cal. 2011); Pitts v. State, 

710 So. 2d 62, 62

 (Fla. Dist. Ct. App. 1998) (per curiam); State v. Lykken, 

484 N.W.2d 869, 878

 (S.D. 1992).
        There are also cases in which the disruption of telephone communications has
been cited. See, e.g., People v. Zamora, 

803 P.2d 568

, 570–71, 576 (Kan. 1990); People
v. Warren, 

578 N.W.2d 692, 696

 (Mich. Ct. App. 1998), reversed in part on other
grounds, 

615 N.W.2d 691

 (Mich. 2000); Key, 636 S.E.2d at 819–21; Chatman v.
Commonwealth, 

739 S.E.2d 245, 251

 (Va. Ct. App. 2013). Many of these fact patterns
are far more aggravated that the facts of this case.
                                       34

        We conclude that it does not. We note in particular the potential of

sliding downhill into situations in which a person with limited additional

criminal culpability suffers a dramatically increased penalty.            In the

words of Yeager and Carlson, the underlying crime must be substantially

more heinous to give rise to a kidnapping conviction. Yeager & Carlson

at 66.     We conclude that this heinous concept underlies the Rich

tripartite test with its attendant intensifiers. While there might be some

marginal increase in the risk of harm, lessening of detention, or

facilitation of escape, we conclude it is not sufficient to trigger

dramatically increased sanctions under our kidnapping statute in this

case.

        D. Disposition.       In light of our disposition of the kidnapping

charge, we now consider the disposition of this case.           In order to

determine the appropriate course on remand, we examine the jury

instructions as law of the case in light of our holding on the kidnapping

charge. See State v. Murray, 

796 N.W.2d 907, 910

 (Iowa 2011) (noting

lesser included offense instruction became law of the case when

defendant failed to preserve error by objecting to instruction); State v.

Taggart, 

430 N.W.2d 423, 425

 (Iowa 1988) (“Failure to timely object to an

instruction not only waives the right to assert error on appeal, but also

the instruction, right or wrong, becomes the law of the case.” (Citation

and internal quotation marks omitted.)).

        Because under the instructions, kidnapping in the first degree,

kidnapping in the third degree, and false imprisonment all had a

common confinement instruction, those charges must be dismissed for

lack of sufficient evidence. See State v. Snider, 

479 N.W.2d 622

, 623–24

(Iowa    Ct.   App.   1991)    (noting the   confinement   element   of    false
                                   35

imprisonment is defined by reference to the kidnapping statute and its

application as defined by both Rich and Misner).

      With respect to the remaining charges of sexual abuse in the

second degree and sexual abuse in the third degree, the instructions told

the jury not to consider these offenses independently if it found Robinson

guilty of kidnapping. As a result, we do not have a specific jury verdict

on the jury verdict form for sexual abuse in the second degree or sexual

abuse in the third degree.

      Nonetheless, the jury necessarily found that Robinson engaged in

sexual abuse in the third degree when it convicted him of kidnapping

because under the instructions the jury was required to find Robinson

had engaged in an act of sexual abuse to convict him of kidnapping in

the first degree. No claim on appeal has been made that the evidence

was insufficient to find that Robinson was guilty of sexual abuse in the

third degree.

      We cannot determine, however, whether the jury found Robinson

guilty of sexual abuse in the second degree, which requires an additional

finding that during the commission of the sexual abuse, Robinson used

or threatened to use force creating a substantial risk of death or serious

injury to B.S. Compare 

Iowa Code § 709.3

(1) (2011) (sexual abuse in the

second degree), with 

Iowa Code § 709.4

(1) (sexual abuse in the third

degree). This element is not a prerequisite to a kidnaping in the first-

degree verdict.

      In light of the record, we conclude the State may pursue one of two

options in this case on remand. The State has the option of standing on

the jury’s necessary determination that Robinson was guilty of sexual

abuse in the third degree and ask the court to enter judgment on that

offense and to sentence Robinson accordingly.         In the alternative,
                                   36

however, the State may on remand elect to retry Robinson on sexual

abuse in the second degree, an offense which the jury verdict in this case

was not required to decide.

      IV. Barrier-Free Contact with Counsel.

      We finally address the question of whether the defendant was

improperly denied his statutory or constitutional right to effective

assistance of counsel because of the existence of the Plexiglas barrier

separating the defendant from his attorney at the Dubuque County Jail.

While we have reversed Robinson’s conviction on other grounds, we

address the question related to access to barrier-free contact between

Robinson and his attorney in order to provide the district court and the

parties with guidance should the State elect to retry Robinson on

remand.

      A. Procedural History.

      1. Robinson’s motion.   Prior to trial, Robinson filed a motion for

barrier-free contact between counsel and defendant.          In order to

understand the precise scope of the issues before us, it is necessary to

engage in a detailed review of the proceedings below.

      We begin with a review of the substance of Robinson’s motion. The

motion alleged that the visiting rooms at the jail imposed a Plexiglas

barrier between Robinson and his counsel, that meetings were video and

possibly audio recorded, and that conversations between Robinson and

his lawyer could be overheard by persons standing outside the door of

the visiting rooms. He contended the physical arrangements at the jail

violated Iowa Code section 804.20, which he stated affords arrestees the

right to consult with their attorney confidentially and alone and in

private. See State v. Walker, 

804 N.W.2d 284

, 289–90 (Iowa 2011). He

further contended the barrier and video recording violated his right to
                                    37

counsel under the Sixth Amendment to the United States Constitution

and under article I, section 10 of the Iowa Constitution.

      Robinson raised four specific challenges to the arrangement. First,

the motion alleged the Plexiglas barrier required the parties to yell in

order to be heard and that persons standing outside the room could

overhear what was being said. Second, the motion emphasized there was

no means for Robinson and his counsel to review documents together

other than either hold the documents up against the barrier one at a

time or have a jailer convey the documents. Third, the motion alleged

there was no means by which Robinson and his lawyer could review

video or audio recordings together. Fourth, Robinson stated he believed

the rooms were video recorded and that it was unknown whether they

were audio recorded.    In two of the visiting rooms utilized by the jail,

however, the motion alleged that jailers had a clear view of meetings

between Robinson and his attorney.

      The allegations in Robinson’s motion concluded by noting that

there had been no showing that Robinson had been violent or disruptive

at the jail. In his prayer for relief, Robinson requested an order requiring

the Dubuque County Sheriff to provide a “barrier-free room that is free of

video and/or audio recording devices and in which the conversations

between the undersigned and the Defendant may not be observed.”

      2. Hearing before the district court.     The district court held a

hearing on the motion.     Robinson presented no evidence, but counsel

made a statement to the court. The State offered evidence from Thomas

Fitzpatrick, a Dubuque County deputy sheriff and assistant jail

administrator for the Dubuque County Jail. A CD of photographs of the

visiting room facilities was admitted into evidence.
                                      38

         In support of the motion, Robinson’s counsel began by advising the

court that the staff at the jail were very professional, but all of the

visiting rooms have a Plexiglas barrier and none have a pass-through

arrangement. Further, counsel asserted he had to yell to communicate

with his client. Counsel told the court:

         Because there’s no pass-through and because we’re literally
         yelling through a hole in the wall or through another barrier,
         anyone standing outside of any one of those rooms, either
         surreptitiously or walking past, can hear the conversation,
         because both Mr. Robinson and I have to raise our voices.
         And that’s the issue that I have . . . . We’re trying to have
         confidential conversations, and I’m having to talk louder
         than I’m addressing the Court right now.

         With respect to the passing of documents, Robinson’s counsel

further noted that in one of the meeting rooms there is only a small

“metal shelf, maybe 14 to 16 inches long, maybe eight inches wide.”

Robinson’s lawyer argued that the physical arrangement did not allow

him to go over documents, noting, “[W]e’ve got a lot of police reports to go

over, things like that.”

         Robinson’s counsel cited Walker, 804 N.W.2d at 289–95, for the

proposition that he was entitled to barrier-free contact with his counsel

under Iowa Code section 804.20 unless the State could show some

specific individualized suspicion or a threat to safety or security.

Robinson’s counsel also cited People v. Parsons, 

15 P.3d 799

, 804–05

(Colo. Ct. App. 2000), for the propositions that there should be a pass-

through available, no video camera surveillance should be allowed, and

attorneys and clients should be able to converse in a normal tone of

voice.    Counsel noted the Parsons court emphasized this set-up was

necessary so that attorney–client meetings “cannot be overheard by those

who are outside the room, but who may be in the immediate area.” 

Id.

 at
                                    39

804. Robinson emphasized he had a clear constitutional right to discuss

the case with his attorney in a normal tone of voice, unobserved by other

persons.

      The State offered the testimony of Thomas Fitzpatrick. Fitzpatrick

described the visiting rooms at the Dubuque County Jail. With respect

to video surveillance, Fitzpatrick testified there were cameras located

outside the door of each visiting room, but when the door was closed, as

it ordinarily was in an attorney–client meeting, the video cameras would

be shut off from recording activities within the room.          Fitzpatrick

minimized the sound issues, noting that if someone raised his voice, that

might get attention. Fitzpatrick explained that no jail staff is stationed

outside the doors of the visiting rooms. Fitzpatrick further testified that

while the jail has allowed, on a case-by-case basis, attorneys and their

clients to meet in a barrier-free room to go over documents, they have

never allowed a barrier-free visiting room “carte blanche.”           While

Fitzpatrick conceded he had no knowledge of Robinson having any

discipline issues or issues of violence in the jail, he testified he trusted

no one and he would not be able to provide appropriate security for all

inmates in every case if barrier-free contact with counsel was the norm.

      The State argued there was no need to provide barrier-free contact

with counsel absent a specific showing of need. The State distinguished

Walker, noting in that case there was a very specific need for the attorney

to have barrier-free contact and here no such immediate need is present.

      In response, Robinson’s counsel stated:

      He and I need to be able to communicate to prepare for trial.
            I agree with [the State] again the cases don’t
      necessarily allow for—that they don’t talk about the same
      contact that Mr. Robinson and I would have sitting here.
      Robinson’s counsel then made a specific point:
                                     40
      But there’s no pass-through at all. I don’t know for sure,
      but I think that even some sort of pass-through so that he
      and I can examine documents, examine videos, listen to
      audio in this case as we prepare his defense is what respects
      his constitutional right.

            ....

            I think that under the facts of this case, we do need
      barrier-free contact or at least some way to pass-through so
      that Mr. Robinson and I can communicate so that his
      constitutional rights are protected.

      3. Ruling of the district court.    After the hearing and the district

court judge’s inspection of the jail facilities, the district court entered an

order on the motion. As to the facts, the district court found that none of

the rooms were monitored through electronic surveillance. The district

court further found that “people talking in a normal voice can hear each

other through the sound grates [in the visiting rooms], although the

sound is somewhat muffled.” Further, the district court found that while

a guard positioned directly outside the doors would be able to overhear

portions of the discussions, no staff are stationed outside the room, but
instead are in a control room where they cannot hear anything other

than screaming. The court further found, as conceded by the parties,

there was no pass-through in any of the visiting rooms.

      On legal issues, the district court found that our holding in

Walker, 

804 N.W.2d at 292

, an OWI case, was fact-specific in that the

attorney needed immediate, barrier-free access to his client in order to

smell his breath and have him perform sobriety tests so the attorney

could properly advise him as to whether to submit to a breath test. The

district court dropped a footnote questioning, but not deciding, whether

Iowa Code section 804.20 applied in this case or only related to

communications at the time of initial detention. The district court held
                                       41

that Iowa Code section 804.20 did not require “barrier free access to his

attorney for every visit, regardless of purpose.”

      The district court did note that barrier-free contact may be

warranted under Iowa Code section 804.20 “for specific purposes such as

those cited by defense counsel—i.e. physical demonstrations and

reviewing audio and video recordings together.”           The district court

ordered that if those situations were to arise, Robinson would be entitled

to barrier-free accommodations, and if the jail refused, Robinson could

file a motion with the court outlining the need for such accommodation.

At that point, the burden would shift to the State to make a showing of

“case-specific, individualized suspicion in order to prohibit barrier-free

contact.”

      The      district   court   recognized   that   Robinson   had   raised

constitutional as well as statutory claims. With respect to constitutional

claims, the district court held that barrier-free access to counsel “to this

point” had not violated Robinson’s right to counsel under the United

States or Iowa Constitutions.

      The district court order thus established a framework under which

Robinson could seek barrier-free contact with his counsel upon a

showing of specific needs as asserted by his lawyer in his motion and at

the hearing, but denied barrier-free contact “for every meeting, regardless

of purpose.”

      B. Positions of the Parties on Appeal.          On appeal, Robinson’s

counsel reviews the evidentiary record establishing that the visiting

rooms have a Plexiglas barrier and no pass-through for documents. His

appellate brief summarizes the conflicting views regarding whether an

attorney has to yell to communicate with a client in the visiting rooms.

The appellate brief also surveys the evidence regarding security cameras
                                     42

located in the hallways and the intercom system that allows staff in the

control room to communicate with lawyers in the visiting room.

      Robinson does not, however, directly challenge the factual findings

of the district court.   Robinson does not claim, for instance, that the

district court erred in finding that an attorney could communicate with

his client in the visiting rooms in a normal tone of voice, although the

sound was somewhat muffled. Robinson further did not challenge the

factual finding that although a jail staff standing directly outside the

door might overhear portions of a conversation, jail staff were assigned to

the control room and were not stationed in a position to overhear

attorney–client conversations.     Finally, on appeal Robinson did not

challenge the assertion that there was no video surveillance of the rooms

when the doors were closed. As a result, on appeal, we do not question

the undisputed fact-finding of the district court.

      Robinson raises two theories on appeal. First, Robinson relies on

Walker for the proposition that under Iowa Code section 804.20 and

under the right-to-counsel provisions of the Iowa and United States

Constitutions, a lawyer is always entitled to barrier-free access with his

or her client absent an individualized showing of a threat of violence or a

threat to institutional security. Second, Robinson argues that barrier-

free contact with counsel is necessary to allow the attorney and the

accused to develop a relationship of trust and confidence.

      The State contends on appeal, among other things, that Iowa Code

section 804.20 is not implicated in this case, as it applies only to

situations in which a defendant is in custody but has not yet been

charged with a crime.     More narrowly, the State asserts that even if

section 804.20 applies, under Walker there must be a specific showing of

need in order for the defendant to be entitled to barrier-free contact with
                                    43

counsel.   On the constitutional issues, the State argues that caselaw

subsequent to the federal cases cited in Walker indicate there is no “carte

blanche” right to barrier-free contact with counsel.     Finally, the State

generally argues that before we reverse a criminal conviction on grounds

of lack of barrier-free contact with counsel, the defendant must show

that he or she has been prejudiced by the denial of his or her right to

counsel.   According to the State, Robinson simply cannot make that

showing.

      C. Analysis.    On appeal, Robinson argues that he has a broad

right to barrier-free contact with counsel under Iowa Code section

804.20. We do not agree. While there is language in Iowa Code section

804.20 that seems to suggest a broad application (“any person arrested

or restrained of the person’s liberty for any reason whatever”), the statute

also emphasizes that the right to call family or consult counsel should

occur “without unnecessary delay after arrival at the place of detention.”

Further, the statute must be interpreted in context.          See Andover

Volunteer Fire Dep’t v. Grinnell Mut. Reins. Co., 

787 N.W.2d 75, 82

 (Iowa

2010) (noting the “context of a statute is an important consideration in

the search for legislative intent”). Iowa Code chapter 804 generally deals

with the commencement of criminal actions and arrests.         The chapter

contains a wide array of provisions dealing with arrests, including arrest

by warrant, arrest by peace officers, arrest by federal law enforcement

officers, arrests by out-of-state peace officers, etc.     See 

Iowa Code §§ 804.1

, .7, .7A, .7B.     The title of Iowa Code section 804.20 is

“Communications by arrested persons.” The next provision deals with

initial appearances before a magistrate. See 

id.

 § 804.21. In context, we

conclude Iowa Code section 804.20 applies to the period after arrest but
                                     44

prior to the formal commencement of criminal charges.          As a result,

Robinson is not entitled to any relief on this statutory ground.

      That leaves Robinson’s constitutional claim on appeal, namely that

barrier-free contact with counsel is required in order to ensure a

“relationship and a level of trust and comfort.” See Adams v. Carlson,

488 F.2d 619, 630

 (7th Cir. 1973) (noting the difficulty of attorneys and

clients establishing a relationship “behind glass”). This claim, however,

was not made before the district court. Instead, as seen above, at the

district court Robinson focused on issues upon which he either prevailed

before the district court (namely, the right to barrier-free contact with

counsel to review documents or review video or audio recordings) or

which have not been raised on appeal (video surveillance, overhearing

attorney–client conferences through audio or other means).         In short,

Robinson largely prevailed on the issues presented below and did not

raise the trust-and-comfort issue now asserted on appeal.

      As a result, we conclude Robinson has not preserved any claim

under the United States or Iowa Constitutions that he is entitled to

barrier-free contact with his attorney in order to develop a relationship of

trust and comfort. See Meier v. Senecaut, 

641 N.W.2d 532, 537

 (Iowa

2002) (“It is a fundamental doctrine of appellate review that issues must

ordinarily be both raised and decided by the district court before we will

decide them on appeal.”). Because the issue raised by Robinson in this

appeal has not been preserved, he is not entitled to relief.

      V. Conclusion.

      For the above reasons, the decision of the court of appeals is

vacated in part and the judgment of the district court is reversed and the

case remanded for proceedings consistent with this opinion.
                                 45

    DECISION OF COURT OF APPEALS AFFIRMED IN PART AND

VACATED IN PART; DISTRICT COURT JUDGMENT REVERSED AND

CASE REMANDED.

    All justices concur except Wiggins, J., who concurs specially.
                                       46

                                                      #12–1323, State v. Robinson

WIGGINS, Justice (concurring specially).

      I concur wholeheartedly with the majority opinion.                  I write

separately    because    the    district    court’s     confinement   instruction

constituted reversible error. Jury instruction number 23 on confinement

provided in relevant part:

            No minimum time of confinement or distance of
      removal is required. It must be more than slight. The
      confinement must have significance apart from the sexual
      abuse.
            In determining whether confinement exists, you may
      consider whether:
             1. The risk of harm to [B.S.] was increased.

             2. The risk of detection was reduced.

             3. Escape was made easier. 7

The defendant’s counsel did not object to the instruction at trial.

      The defendant in his pro se brief contends, among other things, he

received ineffective assistance of counsel because his counsel did not

object to the instruction that failed to include the intensifiers for the

three factors mentioned in State v. Rich, 

305 N.W.2d 739, 745

 (Iowa
1981). Although the defendant’s pro se brief does not mention whether

he is proceeding under the Iowa or the United States Constitution, I

consider both claims preserved under the circumstances. 8

      The defendant asserts although the jury instruction required the

jury to find the confinement in the case had significance beyond the


        7Jury instruction number 23 was adopted from Iowa State Bar Association

(ISBA), Iowa Criminal Jury Instruction 1000.5 (2012).
      8The proper treatment of such claims is discussed in State v. Halverson, ___

N.W.2d ___, ___ (Iowa 2015).
                                     47

underlying sexual assault, the three-factor Rich test was included

without its intensifiers.   Specifically, in order to support a kidnapping

conviction, the confinement must “substantially increase[] the risk of

harm . . . , significantly lessen[] the risk of detection, or significantly

facilitate[] escape.” 

Id. at 745

 (emphasis added). By failing to include

this language, the defendant argues, a jury could conclude the

requirement that confinement be significant beyond the underlying

sexual assault is supported by any increase in the risk of harm,

lessening of the risk of detection, or facilitation of escape, however slight.

      I. Iowa Precedents.

      We have never approved the instruction given in this case. In State

v. Hardin, the jury instruction stated:

            “One of the essential elements which the State is
      required to prove beyond a reasonable doubt in either
      kidnapping in the first degree or kidnapping in the third
      degree or false imprisonment is that [the victim] was
      confined or removed.

            In that regard, you are instructed that this requires
      more than confinement or removal that is inherent within
      the commission of the offense of sexual abuse.

            A person is ‘confined’ when that person’s freedom to
      move about is substantially restricted by force, threat, or
      deception. The person may be confined either in the place
      where the restriction commences or in a place to which the
      person has been removed.

             Although no minimal period of confinement or
      distance of removal is required, such must exceed that
      which is normally incidental or dependent upon the
      commission of a sexual abuse and must be more than slight,
      inconsequential, or as an incident inherent in the offense of
      sexual abuse so that the confinement or removal has a
      significance separate and apart from a sexual abuse.

             Such confinement or removal may exist because it
      substantially increases the risk of harm to the victim or
      significantly lessens the risk of detection.”
                                    48

359 N.W.2d 185

, 189–90 (Iowa 1984) (alteration in original).            The

instruction generally conformed to the Rich tripartite test. See 

id.

      In State v. Doughty, we quoted at length from Rich, concluding an

instruction that did not outline the Rich tripartite test was flawed and

required a new trial under the circumstances. 

359 N.W.2d 439

, 440–42

(Iowa 1984). We noted that the instruction failed to indicate “the removal

or confinement necessary for first-degree kidnapping.” 

Id. at 441

.

      Our next case involving proper instructions in the context of a

kidnapping charge when there was an underlying felony was State v.

Misner, 

410 N.W.2d 216

, 221–22 (Iowa 1987). In Misner, we stated that

Rich “delineated the standards by which a jury could determine whether

the evidence demonstrated a confinement or removal sufficient to

support a charge of kidnapping.” 

Id. at 222

.

      We then declared the standards by which a jury could determine

whether the evidence supported a kidnapping charge:

           1. No minimum period of confinement or distance of
      removal is required for conviction of kidnapping.

            2. The period of confinement or distance of removal
      must exceed what is normally incidental to the commission
      of sexual abuse.

             3. The confinement or removal must have significance
      independent from the act of sexual abuse itself in one of the
      following ways:

            a. Substantially increase the risk of harm to the
      victim.

            b. Significantly lessen the risk of detection.

           c. Significantly  facilitate escape        following   the
      consummation of the sex abuse offense.
                                     49

Id.

 We reaffirmed that “[t]hese standards are unquestionably the law in

Iowa today with respect to cases involving a kidnapping charge generated

out of a sexual abuse charge.” 

Id.

      In State v. Hatter, we laid out in detail the instruction given by the

district court. 

414 N.W.2d 333, 336

 (Iowa 1987). It provided:

            “One of the essential elements of Kidnapping which
      the State must prove beyond a reasonable doubt is that (the
      victim) was confined or removed or both. This requires more
      than the confinement or removal that is inherent within the
      commission of the offense of sexual abuse, as it is alleged to
      have occurred in this case.

            Although no minimal period of confinement or
      distance of removal is required, it must exceed that which is
      incidental or dependent upon the commission of any sexual
      abuse and must be more than slight, inconsequential or as
      an incident inherent to any sexual abuse so that the
      confinement or removal or both has a significance separate
      and apart from any sexual abuse.

             Such confinement or removal or both may exist
      because it substantially increases the risk of harm to the
      victim or significantly lessens the risk of detection or
      significantly facilitates escape. However, it is for you, the
      jury, after a full and impartial consideration of the evidence
      admitted during the trial, to determine whether there is
      confinement or removal or both as defined herein.”

Id.

      Finally, in State v. McGrew, we stated, “[A] jury question was

presented on whether this type of confinement significantly increased

[the victim’s] risk of further harm.” 

515 N.W.2d 36, 40

 (Iowa 1994). We

further noted “a rational factfinder could find that the risk of detection of

the sexual abuse crime was significantly lessened as well as that the risk

of harm was substantially increased.” 

Id.

 Clearly, the fact issue for the

jury in McGrew was whether the evidence met the Rich tripartite test.

See 

id.

                                    50

      The Iowa Court of Appeals, however, declined to reverse a

kidnapping conviction when the Iowa State Bar Association (ISBA)

kidnapping instruction was given in State v. Ripperger, 

514 N.W.2d 740

,

750–51 (Iowa Ct. App. 1994). In that case, the court of appeals simply

stated the “instruction appropriately conveyed the law,” and the court

was reluctant to disapprove “ ‘Uniform Instructions.’ ” 

Id.

 (quoting State

v. Doss, 

355 N.W.2d 874, 881

 (Iowa 1984)).

      We do not preapprove or give a presumption of correctness to the

instructions published by the ISBA. I understand the ISBA committee

appointed to formulate these instructions is industrious and does its

best to get the law right. However, we can never delegate the formulation

of the law to the instruction committee. This is not only my view, but

also a view held by the United States Court of Appeals for the Eighth

Circuit. See United States v. Jones, 

23 F.3d 1407, 1409

 (8th Cir. 1994)

(explaining the Eighth Circuit’s model instructions are suggestions not

binding on lower courts); United States v. Norton, 

846 F.2d 521, 525

 (8th

Cir. 1988) (same); United States v. Ridinger, 

805 F.2d 818, 821

 (8th Cir.

1986) (same).

      Typically district courts in the Eighth Circuit derive their criminal

jury instructions from the Manual of Model Criminal Jury Instructions

for the District Courts of the Eighth Circuit.      See generally Judicial

Comm. on Model Jury Instructions for the Eighth Circuit, Manual of

Model Criminal Jury Instructions for the District Courts of the Eighth

Circuit (2014). The committee prepares the instructions. See 

id.

 The

process in the Eighth Circuit is similar to the process in Iowa.

      Commenting on these instructions in one opinion, the Eighth

Circuit has taken the view that it has not preapproved these instructions

and it needs to look at the instructions on a case-by-case basis.
                                      51

Ridinger, 

805 F.2d at 821

. In another opinion, the Eighth Circuit aptly

noted “[t]he Model Instructions, . . . are not binding on the district courts

of this circuit, but are merely helpful suggestions to assist the district

courts.”   Norton, 

846 F.2d at 525

.        The Eighth Circuit reaffirmed this

view in Jones, 

23 F.3d at 1409

.

      Accordingly, we are required to scrutinize the ISBA’s instructions

and will not hesitate to disapprove faulty jury instructions.       See, e.g.,

State v. Beets, 

528 N.W.2d 521, 523

 (Iowa 1995) (finding a uniform

instruction regarding the offense of assault with intent to commit sexual

abuse was not a correct statement of the law); State v. McKettrick, 

480 N.W.2d 52, 58

   (Iowa   1992)   (concluding    uniform   criminal   jury

instructions did not correctly state elements of assault causing bodily

injury); State v. Deanda, 

218 N.W.2d 649

, 650–51 (Iowa 1974) (holding

uniform instruction given on entrapment was erroneous as, among other

things, it “ignore[d] the factual evaluation to be undertaken on a case by

case basis” and “fail[ed] to focus on the crucial question” involved in the

case), overruled on other grounds by State v. Monroe, 

236 N.W.2d 24, 33

(Iowa 1975).

      The jury instruction given in this case is inconsistent with our

holding in this case—that the defendant’s confinement of the victim must

have substantially increased the risk of harm, significantly lessened the

risk of detection, or significantly facilitated the risk of escape. Thus, the

instruction as given unduly waters down our approach to kidnapping

when there is an underlying criminal offense.

      Although the instruction accurately indicates the confinement

must be significant apart from the sexual abuse, it does not clearly state

the Rich tripartite test. The risk of harm beyond sexual abuse must be

substantial, and the decreased risk of detection or facilitation of escape
                                     52

must be significant in order to support a kidnapping conviction.         The

purpose of these intensifiers is to prevent the swallowing up of the crime

of sexual abuse by the much more serious crime of kidnapping.

Compare 

Iowa Code § 709.3

(2) (2011) (defining second-degree sexual

abuse), and 

id.

 §§ 902.9(1)(b), .12(3) (explaining second-degree sexual

abuse carries a maximum sentence of no more than twenty-five years,

with a seventy percent mandatory minimum), with id. § 902.1(1)

(explaining first-degree kidnapping is a class “A” felony, carrying with it a

sentence of life imprisonment).

      As indicated above, virtually all of our kidnapping cases have

included these important words, describing the proper standard in

evaluating the evidence in kidnapping cases involving underlying crimes.

See, e.g., Hatter, 414 N.W.2d at 335–36; Misner, 

410 N.W.2d at 222

;

Hardin, 

359 N.W.2d at 190

 (“We reaffirm the holding and language of

Rich.”); see also, e.g., Holmes v. State, 

775 N.W.2d 733

, 736–37 (Iowa Ct.

App. 2009) (stating the Rich tripartite test); State v. Ledezma, 

549 N.W.2d 307, 311

 (Iowa Ct. App. 1996) (same); cf. State v. Griffin, 

564 N.W.2d 370, 373

 (Iowa 1997) (reiterating the policy behind the incidental rule

and noting the “legislature did not intend to afford prosecutors the option

of bootstrapping convictions for kidnapping, carrying life sentences, onto

charges for crimes for which the legislature provides much less severe

penalties” (internal quotation marks omitted)).

      Under the instruction given by the court in this case, however, a

jury could have concluded a relatively slight increase in the risk of harm

or relatively slight decrease in the risk of detection or ease of escape was

sufficient to support a kidnapping conviction. Cf. Doughty, 

359 N.W.2d at 441

 (noting that “[w]hile the jury could well have found that the

removal and confinement were not merely incident to the sexual abuse,
                                     53

we cannot say it would be compelled to reach that conclusion” based on

a faulty jury instruction that did not incorporate the Rich tripartite test).

Thus, I think the instruction in the present case, if not inaccurate, was

at least confusing.    See Burkhalter v. Burkhalter, 

841 N.W.2d 93, 97

(Iowa 2013) (“When the challenged instruction is conflicting and

confusing, error is presumed prejudicial and reversal is required.”

(Internal quotation marks omitted.)); see also Diversified Mgmt., Inc. v.

Denver Post, Inc., 

653 P.2d 1103, 1110

 (Colo. 1982) (en banc) (noting

“even accurate statements of the law should not be used in jury

instructions if they are misleading” and “it is error to include statements

of the law without instructing the jury on how to apply them”).

Confusing instructions are especially problematic in a factually close

case, as is the situation here. See People v. James, 

241 Cal. Rptr. 691

,

700–01 (Ct. App. 1987) (finding a confusing instruction harmless and

noting it was “significant this [was] not a close case”); Preston v. State,

647 S.E.2d 260, 263

 (Ga. 2007) (noting a particular instruction should

not be given in the future, as it “could have the possibility of being

confusing in a close case”); see also United States v. Wisecarver, 

598 F.3d 982

, 989–90 (8th Cir. 2010) (holding confusing jury instruction given in a

close case seriously affected the fairness and integrity of the trial); United

States v. Easley, 

942 F.2d 405

, 411–12 (6th Cir. 1991) (reversing and

remanding for a new trial in a close case because the district court erred

by giving an instruction that had the possibility of causing considerable

jury confusion).

      II. Ineffective Assistance Analysis.

      The pro se defendant does not suggest an approach to evaluating

effectiveness of counsel other than that announced in Strickland v.

Washington, 

466 U.S. 668, 687

, 

104 S. Ct. 2052, 2064

, 

80 L. Ed. 2d 674

,
                                    54

693 (1984), and I therefore apply that standard in this case. On the first

prong, I think competent counsel should have recognized the instruction

missed an important part of our law regarding kidnapping. See 

id.

 Even

a cursory review of our caselaw would have revealed we repeatedly

emphasized the risk of harm must be substantial and the lessened

detection and ease of escape must be significant. Read in the full context

of our cases, the court of appeals decision in Ripperger is doubtful

precedent, particularly in light of McGrew, an Iowa Supreme Court case

decided the same year which relied heavily upon Rich. See McGrew, 

515 N.W.2d at 39

 (citing the Rich tripartite test, and noting that since Rich we

have adhered to its analysis regarding application of the incidental rule);

Ripperger, 514 N.W.2d at 750–51.

      I think it is apparent that a challenge to the instruction,

particularly in a case where the evidence supporting confinement in

excess of that incidental to sexual abuse was thin, a challenge to a jury

instruction as not conforming with Rich and its clear progeny applying

the tripartite test was a claim worth raising. See State v. Schoelerman,

315 N.W.2d 67, 72

 (Iowa 1982) (finding nothing would have stopped an

attorney from raising an issue if the attorney would have consulted the

law in other jurisdictions when none existed in Iowa); see also State v.

Ross, 

845 N.W.2d 692, 698

 (Iowa 2014) (recognizing failure to preserve

error by objecting to an inaccurate jury instruction breaches an

attorney’s duty); State v. Ondayog, 

722 N.W.2d 778, 785

 (Iowa 2006)

(“[F]ailure to recognize an erroneous [jury] instruction and preserve error

breaches an essential duty.”). We have cited, with approval, a treatise

that declares that in order to be effective, counsel must “diligently

devote[] him or herself to scholarly study of the governing legal

principles.” State v. Vance, 

790 N.W.2d 775, 786

 (Iowa 2010) (internal
                                       55

quotation marks omitted).        Such a study would have revealed the

inconsistency between the approved instruction in Ripperger and our

caselaw.

      I further conclude the faulty instruction prejudiced the defendant.

Our precedents emphasize that while in some cases the evidence clearly

establishes    the   prerequisites   for    kidnapping   independent      of   the

underlying crimes and in others, the evidence is clearly lacking, the

cases in the middle category between these extremes are cases for the

jury to decide. In making the necessary determination, it is axiomatic

the court properly instruct the jury. In a factually close case such as

this, the failure of the district court to give a completely accurate

instruction under the Rich tripartite test undermines my confidence in

the verdict.

      Further, I think trial courts should reformulate the ISBA’s

instruction to conform with the holding in this case and include the

concept that the defendant’s confinement of the victim substantially

increased the risk of harm, significantly lessened the risk of detection, or

significantly facilitated the risk of escape to avoid reversible error.