
                        IN THE SUPREME COURT OF IOWA

                              No. 130 / 04-0067

                           Filed February 3, 2006


STATE OF IOWA,

      Appellee,

vs.

MICHAEL DANIEL GREENE,

      Appellant.



      On review from the Iowa Court of Appeals.


      Appeal from the Iowa District Court  for  Dickinson  County,  David A.
Lester, Judge.

      Defendant appeals from  convictions  for  stalking  with  a  dangerous
weapon, Iowa Code § 708.11(3)(b)(2) (2003), and two counts of  second-degree
criminal  mischief,  Iowa  Code  § 716.4.   DECISION  OF  COURT  OF  APPEALS
VACATED; JUDGMENT OF DISTRICT COURT AFFIRMED IN PART AND REVERSED  IN  PART;
CASE REMANDED.

      Linda Del Gallo, State Appellate Defender, and Stephan  J.  Japuntich,
Assistant State Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Mary E. Tabor, Assistant  Attorney
General, Rosalise Olson, County Attorney, and  Kristin  Rienfeld,  Assistant
County Attorney, for appellee.


LARSON, Justice.
      Michael Greene was convicted of stalking with a dangerous  weapon,  in
violation of Iowa Code section 708.11(3)(b)(2) (2003),  and  two  counts  of
second-degree  criminal  mischief  under  Iowa  Code  section   716.4.    He
appealed, and we transferred  his  case  to  the  court  of  appeals,  which
affirmed.  On further review,  we  vacate  the  decision  of  the  court  of
appeals, affirm the judgment of the district court in part  and  reverse  it
in part, and remand.
      I.  Facts and Prior Proceedings.
      The facts, when viewed in the light most favorable  to  the  verdicts,
show that Greene and Kathy Miller lived together for a  period  of  time  in
Greene’s home.  When the relationship soured and  Kathy  moved  out,  Greene
threatened to “do something” if Miller refused to reconcile.  Kathy’s  house
and car were spray painted with graffiti, and personal effects she had  left
at Greene’s house began to appear, damaged, at various places  around  town.
A support post for Kathy’s hammock was cut off, apparently with a  chainsaw.
 Greene sent harassing letters to Kathy and to members  of  her  family  and
friends.  A rock was thrown through a window at her home, and a  dead  skunk
was thrown into her home.   Greene  obtained  a  restraining  order  against
Kathy, claiming, falsely, that she  had  harassed  him.   Metal  signs  were
posted around the community bearing  derogatory  comments  about  Kathy.   A
search of Greene’s home  revealed  a  chainsaw,  mail  addressed  to  Kathy,
apparently stolen from her mailbox, and other items.
      Most significant among the evidence presented at the trial were  steel
shards that had been impaled in Kathy’s car tires and those of her  parents’
tires as well.  The shards are made of  sheet  steel,  approximately  three-
quarters of an inch wide at their base and three inches long, tapered  to  a
razor-sharp point.  The shards are  welded  to  steel  bases  to  keep  them
upright.  These shards had been propped up  against  the  tires  to  flatten
them as the cars were moved.  As would be  expected,  the  tires  went  flat
almost immediately.  The components  of  the  shards  were  consistent  with
sheet steel available at Greene’s place of employment.  These shards play  a
prominent role on this appeal because the  jury  found  that  Greene,  while
stalking his victim, was “in possession of a dangerous weapon.”
      This evidence, as well as other evidence not specifically set  out  in
this opinion, easily supports a finding that the  defendant  was  guilty  of
the general crime of stalking under Iowa Code section  708.11(2).   The  key
issue is whether these shards, in view of the way they were  used,  fit  the
definition of a dangerous weapon so as to constitute an  aggravating  factor
under the stalking statute.
      II.  The Search Warrant Issue.
      Greene argues that the district court erred in denying his  motion  to
suppress evidence  seized  from  his  home  and  his  pickup.   Contrary  to
Greene’s argument, we find the search warrant was based on  probable  cause.
In fact, the issuing magistrate detailed links between all items  listed  in
the application and specific evidence presented.  Moreover, evidence  seized
from Greene that was not covered by the warrant was  admissible  because  it
was seized from plain view,  and  its  incriminating  nature  was  apparent,
based on the officer’s knowledge of the underlying  facts.   See  Horton  v.
California, 496 U.S. 128, 136-37, 110 S. Ct. 2301, 2308, 110 L. Ed. 2d  112,
123 (1990).
      III.  The “Dangerous Weapon” Issue.
      Iowa Code section 708.11(3)(b)(2) provides:

      A person who commits stalking in violation of this section  commits  a
      class “D” felony if any of the following apply:

            . . . .

            (2)  The person  commits  stalking  while  in  possession  of  a
      dangerous weapon, as defined in section 702.7.

A dangerous weapon, in turn, is defined by Iowa Code section 702.7 as

      any instrument or device designed  primarily  for  use  in  inflicting
      death or injury upon a human being or animal, and which is capable  of
      inflicting death upon a human being when used in the manner for  which
      it was designed.  Additionally, any instrument or device of  any  sort
      whatsoever which is actually used in such a manner as to indicate that
      the defendant intends to inflict death  or  serious  injury  upon  the
      other, and which, when so used, is capable of inflicting death upon  a
      human being, is a dangerous weapon.

      The State may meet this burden of proof on the dangerous-weapon  issue
by showing that steel shards either fit the first half  of  the  definition,
i.e., that they were “designed primarily for  use  in  inflicting  death  or
injury,” or the second half of the definition, i.e., a “device of  any  sort
whatsoever which is actually used in such a manner as to indicate  that  the
defendant intends to inflict death or serious  injury  . . .  and  . . .  is
capable of inflicting death upon a human being . . . .”
      Under the second part of Iowa Code section 702.7, the test is  whether
the device is used in such a way as to show an intent to kill  or  injure  a
person.  Under that test, we have  held  that  a  car  may  be  a  dangerous
weapon.  State v. Oldfather, 306 N.W.2d 760,  763-64  (Iowa  1981)  (holding
car, if operated “in such a manner as  to  indicate  an  intent  to  inflict
death or serious injury, may be a ‘dangerous weapon’ ”).
      Dangerous weapons, in fact, can encompass almost  any  instrumentality
under certain circumstances.

      Where the issue is whether an assault or a murder has  been  committed
      with a deadly weapon, it may be held that a stick, stone, hoe, or  any
      one of many other instruments is a deadly  weapon,  according  to  the
      manner in which it is used, the determination of the lethal nature  of
      the instrumentality being a question of fact for the jury.

79 Am. Jur. 2d Weapons & Firearms § 1, at 5 (2002).
      In this case, the court defined “dangerous weapon”  for  the  jury  by
quoting the language of section 702.7 and left it to the jury  to  determine
if the shards met one of those definitions.  The trial court expressed  some
reservation about submitting the dangerous-weapon issue to the jury, and  we
believe under the circumstances of this case it was error  to  do  so.   The
general rule is that:

            Whether an instrument used in an assault is a deadly weapon is a
      question of law, where there is no dispute about the facts.  Where the
      alleged weapon is not defined by the statute as  deadly,  a  case  may
      exist where, from the ordinary harmless character of  such  instrument
      in the light of its claimed use, the court can say as a matter of law,
      under the circumstances shown, that it is not a deadly weapon.

            On the other hand, the question whether  there  was  an  assault
      with a dangerous or deadly weapon is to be submitted to the jury where
      the instrument used is not one declared by  statute  to  be  a  deadly
      weapon or where its character, whether dangerous or deadly, or not, is
      doubtful, or where its character depends on the manner in which it  is
      used.

6A C.J.S. Assault § 156, at 379  (2004)  (footnotes  omitted).[1]   When  we
compare the facts of this case to the wording of section 702.7,  it  appears
the trial court’s reluctance  to  instruct  on  the  aggravated  offense  of
stalking while possessing a dangerous weapon was  well-founded.   Under  the
first test for a dangerous weapon under section 702.7,  the  evidence  could
not reasonably support a finding that the shards  were  “designed  primarily
for use in inflicting death or injury . . . .”  They  were  designed  to  do
just what they did—ruin a car tire.  The State  argues  that,  nevertheless,
an intent to ruin a tire may infer an intent to  kill  or  injure  a  person
because the car might go  out  of  control  when  the  tires  deflated.   We
believe this correlation is too speculative; under  that  reasoning,  a  lug
wrench used to loosen car wheels could  be  considered  a  dangerous  weapon
because a wheel might fall off the car and cause it to crash.   We  conclude
the shards fail the first test of section 702.7 (designed to inflict  injury
or death).
      They also fail to satisfy the  alternative  definition  under  section
702.7 (a device actually used in a manner as to indicate that the  defendant
intends to inflict death or serious injury).  If the  shards  were  held  in
the defendant’s hand in a personal confrontation with a victim, there  would
be little doubt that they were dangerous weapons, as they  would  have  been
used in a manner indicating an intent to kill or injure.  That  is  not  the
case here, however.  While the record would support a finding of  intent  to
damage property, it could not, as a matter of law, support  a  finding  that
the shards were designed to, or actually used with  an  intent  to,  inflict
death or injury.  Attributing such  intent  to  the  defendant  under  these
facts would necessarily be based on conjecture.
       We  conclude  the  court  erred  in  submitting  the  issue  of   the
defendant’s possession of a dangerous weapon.   The  evidence,  however,  is
sufficient to support a verdict of guilt  as  to  the  included  offense  of
aggravated misdemeanor stalking under Iowa  Code  section  708.11(3)(c),  as
well as the convictions  for  criminal  mischief  under  Iowa  Code  section
716.4.  We  vacate  the  decision  of  the  court  of  appeals,  affirm  the
convictions for criminal mischief, and remand for entry  of  a  judgment  of
conviction on misdemeanor stalking and for resentencing on all  convictions.

      DECISION OF COURT OF  APPEALS  VACATED;  JUDGMENT  OF  DISTRICT  COURT
AFFIRMED IN PART AND REVERSED IN PART; CASE REMANDED.
-----------------------
      [1]We have previously held that  the  phrase  “dangerous  weapon,”  as
defined in section 702.7, is substantially identical to the  phrase  “deadly
weapon.”  State v. Jespersen, 360 N.W.2d 804, 807 n.1 (Iowa 1985).


