State v. Swanson , 1988 Iowa App. LEXIS 30 ( 1988 )

SACKETT, Judge.

Defendant Robert Emil Swanson appeals his conviction of two counts of assault under Iowa Code section 708.2. The section provides “A person who commits an assault ..., without the intent to inflict a serious injury upon another, and who causes bodily injury or disabling mental illness, is guilty of a serious misdemeanor.” Defendant was charged with and tried on two counts of assault with intent to inflict a serious injury in violation of Iowa Code section 708.2(1). The counts under which defendant was charged, section 708.2(1), did not require the finding of bodily injury. The charge under which he was convicted, section 708.2(2), required bodily injury.

Defendant contends the court committed reversible error in submitting to the jury the charge on which he was convicted because it met neither the legal nor factual test for a lesser included offense.

The State first contends error was not preserved on this issue. We disagree. The trial court presented counsel with preliminary drafts of the instructions. Defendant objected to the inclusion of the lesser included offense. The court overruled defendant’s objection. The court then said:

... subject to Mr. Sallen’s objection to the court instructing on the lesser included offense are the instructions in satisfactory order as far as you are concerned?

Yes.

The State contends to preserve error the objection had to be made again. The trial court gave the instructions subject to defendant’s objection. We find error was preserved.

The defendant claims the trial court erred in submitting the charges upon which he was convicted to the jury. Lesser offenses must be submitted to the jury as included within the charged offense but only if they meet both the appropriate legal and factual tests. State v. Ware, 338 N.W. 2d 707, 714 (Iowa 1983). In determining whether an offense is included, two tests must be satisfied. The first is the legal or element test. The lesser offense must be composed solely of some but not all elements of the greater crime. The second, “factual” test is an ad hoc determination whether there is a factual basis in the record for submitting the included offense to the jury. State v. Sangster, 299 N.W.2d 661, 663 (Iowa 1980); State v. Furnald, 263 N.W.2d 751, 752 (Iowa 1978).

To satisfy the legal test, the minor offense must be an elementary part of the major offense. Sangster, 299 N.W.2d at 663. The lesser offense is necessarily included in the greater offense if it is impossible to commit the greater without also committing the lesser. State v. Redmon, 244 N.W.2d 792, 801 (Iowa 1976). If the lesser offense contains an element not required for the greater offense, the lesser cannot be included in the greater. This is because it would be possible in that situation to commit the greater without also having committed the lesser. See 3 C. Wright, Federal Practice and Procedure § 515, at 21 (2d ed. 1982).

The lesser offense contains the element of battery not required for the greater offense. It therefore would be possible to commit the greater offense without committing the lesser offense. We agree with defendant’s contention that section 708.2(2) is not a lesser included offense of section 708.2(1).

The State, however, argues the lesser included offense may be established by evidence adduced at trial in proof of the greater offense. Evidence was adduced that defendant caused bodily injury. The court in Sangster, 299 N.W.2d at 663, held the elements of an offense are “determined by the statute defining it rather than by the charge or the evidence.” Redmon, 244 N.W.2d at 801. When the statute defines an offense alternatively, the relevant definition is the one for the offense involved in the particular prosecution. State v. Young, 293 N.W.2d 5, 7 (Iowa 1980); Furnald, 263 N.W.2d at 754. We therefore reject the State’s argument.

REVERSED.

HAYDEN, P.J., concurs.

HABHAB, J., dissents.