State of Iowa v. David Lee Miller

               IN THE SUPREME COURT OF IOWA
                              No. 11–2087

                          Filed January 3, 2014


STATE OF IOWA,

      Appellee,

vs.

DAVID LEE MILLER,

      Appellant.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Des Moines County,

Mary Ann Brown, Judge.



      Appellant appeals from judgment and sentence imposed following a

conviction for escape in violation of Iowa Code section 719.4(1).

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT

JUDGMENT REVERSED AND CASE REMANDED FOR A NEW TRIAL.



      Mark C. Smith, State Appellate Defender, and Vidhya K. Reddy,

Assistant State Appellate Defender, for appellant.



      Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant

Attorney General, Patrick C. Jackson, County Attorney, and Tyron T.

Rogers, Assistant County Attorney, for appellee.
                                          2

CADY, Chief Justice.

       In this appeal, we must decide if the crime of absence from custody

is a lesser included offense of the crime of escape. The district court,

following case precedent, held the crime of absence from custody was not

a lesser included offense, and a jury subsequently found the defendant

guilty of the crime of escape. On appeal, the court of appeals affirmed

the judgment and sentence of the district court. On further review, we

vacate the decision of the court of appeals and reverse the judgment and

sentence of the district court.        Under the test we have developed to
evaluate proposed lesser included offenses in criminal prosecutions in

Iowa, we hold the crime of absence from custody is a lesser included

offense of the crime of escape and now overrule State v. Beeson, 569

N.W.2d 107, 112 (Iowa 1997).1 We remand the case for a new trial.

       I. Background Facts and Proceedings.

       David Miller was committed to the residential correctional facility

in Burlington in March 2011 following his release on parole from prison

where he was serving a sentence for a felony offense.                The facility is

under the control of the Iowa Department of Corrections and is

commonly referred to as a halfway house.               Miller was granted work-

release status by the Iowa Board of Parole. According to the rules of the

halfway house, Miller could not leave the facility without prior permission

and was required to check in and out of the facility when he did have

permission to leave. The residents of the halfway house checked in and

out at a desk located just inside the front door.

       1While we reverse the judgment of the district court and vacate the decision of
the court of appeals, we acknowledge both courts properly relied on our applicable
precedent. Generally, it is the role of the supreme court to decide if case precedent
should no longer be followed. See Kersten Co. v. Dep’t of Soc. Servs., 207 N.W.2d 117,
121–22 (Iowa 1973).
                                          3

       On July 18, 2011, Miller was given permission to leave the halfway

house to go to the Iowa Workforce Development Center in Burlington to

participate in workforce development classes and to use a computer to

look for jobs.      After he completed the tasks, Miller returned to the

halfway house. He arrived through the front door shortly before 5 p.m.

and engaged in a conversation with the residential correctional officer at

the desk.     Miller claimed he told the officer he intended to leave on

another scheduled furlough and go to the residence of his girlfriend.

After the residential officer told Miller he did not have permission to leave
on another furlough, Miller walked out of the halfway house, exclaiming,

“screw it,” as he left the building.

       Miller was apprehended by the Burlington Police Department

nineteen days later.       The State subsequently filed a trial information

against Miller charging him with the crime of escape in violation of Iowa

Code section 719.4(1) (2011).2

       At trial, conflicting testimony was presented on the question of

whether Miller had checked back into the halfway house before leaving

again. Miller argued he did not complete the process to check back into

the facility, so he could not have escaped from the facility. The State

produced evidence that Miller had checked back into the facility, but

argued an escape occurred even if the check-in process was not

completed because Miller nevertheless intentionally left the halfway

house without consent.

       Miller requested the jury be instructed that the crime of absence

from custody in violation of Iowa Code section 719.4(3) was a lesser


      2All references to the Iowa Code in this opinion refer to the 2011 edition of the

Code unless otherwise stated.
                                    4

included offense of escape.   The district court denied Miller’s request.

The jury subsequently found Miller guilty of escape.

      Miller appealed. He argued the district court abused its discretion

by refusing to submit the crime of absence from custody as a lesser

included offense of escape. He also asserted three claims of ineffective

assistance of counsel. We transferred the case to the court of appeals. It

denied each claim raised by Miller and affirmed the district court

judgment and sentence. We granted Miller’s request for further review.

      II. Standard of Review.
      “ ‘We review [a] claim that the trial court should have given the

defendant’s requested instruction[] for an abuse of discretion.’ ” State v.

Marin, 788 N.W.2d 833, 836 (Iowa 2010) (quoting Summy v. City of

Des Moines, 708 N.W.2d 333, 340 (Iowa 2006)).          “Error in giving or

refusing to give a particular instruction warrants reversal unless the

record shows the absence of prejudice.” Id. “ ‘When the error is not of

constitutional magnitude, the test of prejudice is whether it sufficiently

appears that the rights of the complaining party have been injuriously

affected or that the party has suffered a miscarriage of justice.’ ”    Id.

(quoting State v. Gansz, 376 N.W.2d 887, 891 (Iowa 1985)). “An abuse of

discretion occurs ‘when the district court exercises its discretion on

grounds or for reasons clearly untenable or to an extent clearly

unreasonable.’ ”   Rowedder v. Anderson, 814 N.W.2d 585, 589 (Iowa

2012) (quoting Schettler v. Iowa Dist. Ct., 509 N.W.2d 459, 464 (Iowa

1993)). “An erroneous application of the law is clearly untenable.” Id.

Thus, under our abuse-of-discretion standard, “we will correct an

erroneous application of the law.” Id.
                                     5

      III. Analysis.

      A. Stare Decisis. Judicial decision making is often guided by the

precedent of past court decisions. It is our accepted way and is known

as the doctrine of stare decisis. This cardinal principle of common law is

a Latin term meaning “to stand by things decided.”           Black’s Law

Dictionary 1537 (9th ed. 2009). Courts adhere to the holdings of past

rulings to imbue the law with continuity and predictability and help

maintain the stability essential to society. See Barreca v. Nickolas, 683

N.W.2d 111, 122 (Iowa 2004). Our experience has shown the enduring
value of this approach. Yet, our experience has also revealed times when

we must overturn our precedent.       One such time is when it becomes

apparent, in one way or another, that the prior decision was clearly

erroneous. McElroy v. State, 703 N.W.2d 385, 394–95 (Iowa 2005). Just

as with the character of a person, it is better for courts to correct

mistakes when they surface rather than allow them to become ingrained

in perpetuity. This response does not disregard the value of precedent

but serves the greater good of justice.

      If we were to follow our court precedent in this case, the decision

would be clear and brief. Sixteen years ago, we held that the crime of

absence from custody was not a lesser included offense of escape.

Beeson, 569 N.W.2d at 112. However, we now conclude this holding was

clearly wrong, primarily because the approach we followed failed to

consider and analyze the issue using our familiar legal principles

governing lesser included offenses. In following this analytical path now,

we can identify our mistake and correct it.

      B. Lesser Included Offense Analysis. We begin our analysis of
the legal issue in this case by reviewing our law governing lesser included

offenses. From the beginning of our statehood, Iowa law recognized the
                                       6

availability of lesser included offenses. See Orton v. State, 4 Greene 140,

142 (Iowa 1853) (“A defendant may be found guilty of any offense, the

commission of which is necessarily included in that with which he is

charged in the indictment.”).      The doctrine dates at least to sixteenth-

century English common law and “allows a trier of fact to convict a

defendant of an offense less serious than the one charged.”         State v.

Jeffries, 430 N.W.2d 728, 730 (Iowa 1988); accord Thomas Andrew

Green, Verdict According to Conscience: Perspectives on the English

Criminal Trial Jury 1200–1800, at 31–52 (1985) [hereinafter Green]
(examining the discretion medieval common law juries enjoyed to

distinguish between murder and “simple homicide”—a lesser, noncapital

offense—and speculating this discretion may date to shortly after the

Norman conquest); Janis L. Ettinger, In Search of a Reasoned Approach

to the Lesser Included Offense, 50 Brooklyn L. Rev. 191, 195 (1984) (“As

early as 1554, an English jury in a murder case was permitted to return

a guilty verdict in a form of homicide carrying a less severe sentence than

the crime originally charged.”).

      Although some jurists have remarked the doctrine was originally

developed as a useful tool for the prosecution, see Keeble v. United

States, 412 U.S. 205, 208, 93 S. Ct. 1993, 1995, 36 L. Ed. 2d 844, 847

(1973), some commentators dispute this view, pointing out the doctrine’s

early use as a vehicle for mercy by a jury, see Green, at 35–46

(examining several cases in which juries used expansive fact-finding

powers to construe facts in a manner to convict a defendant of a lesser,

pardonable form of homicide). In any event, the doctrine has evolved to

become an important component of procedural fairness and substantial
justice for the accused in a criminal case. Cf. Keeble, 412 U.S. at 208,

93 S. Ct. at 1995, 36 L. Ed. 2d at 849–50 (determining whether a
                                          7

defendant is entitled to a lesser included offense jury instruction when

prosecuted under the Major Crimes Act of 1885, 18 U.S.C. §§ 1153, 3242

(1970), and no lesser included offense is enumerated by statute). The

Court elucidated this idea in Keeble:

              Moreover, it is no answer to petitioner’s demand for a
       jury instruction on a lesser offense to argue that a defendant
       may be better off without such an instruction. True, if the
       prosecution has not established beyond a reasonable doubt
       every element of the offense charged, and if no lesser offense
       instruction is offered, the jury must, as a theoretical matter,
       return a verdict of acquittal. But a defendant is entitled to a
       lesser offense instruction—in this context or any other—
       precisely because he should not be exposed to the
       substantial risk that the jury’s practice will diverge from
       theory. Where one of the elements of the offense charged
       remains in doubt, but the defendant is plainly guilty of some
       offense, the jury is likely to resolve its doubts in favor of
       conviction.

Id.

       The lesser included offense doctrine also implicates either or both

the Eighth Amendment and the Due Process Clause of the Fourteenth

Amendment to the United States Constitution, at least in capital cases.

See Beck v. Alabama, 447 U.S. 625, 637–38, 100 S. Ct. 2382, 2389–90,

65 L. Ed. 2d 392, 402–03 (1980).              It may raise other constitutional

concerns as well. See Jeffries, 430 N.W.2d at 734–35; Christen R. Blair,
Constitutional Limitations on the Lesser Included Offense Doctrine, 21 Am.

Crim. L. Rev. 445, 446 (1984) [hereinafter Blair].3

        3In Beck, the United States Supreme Court held a state statute that prohibited

instructing the jury regarding lesser included offenses in capital cases was
unconstitutional. 447 U.S. at 635, 100 S. Ct. at 2388, 65 L. Ed. 2d at 401–03. The
Court has discussed Beck since its decision, but has not yet decided whether it applies
to noncapital cases. See, e.g., Hopkins v. Reeves, 524 U.S. 88, 94–97, 118 S. Ct. 1895,
1900–01, 141 L. Ed. 2d 76, 84–86 (1998); Schad v. Arizona, 501 U.S. 624, 646–48, 111
S. Ct. 2491, 2504–05, 115 L. Ed. 2d 555, 574–76 (1991); Spaziano v. Florida, 468 U.S.
447, 454–57, 104 S. Ct. 3154, 3159–60, 82 L. Ed. 2d 340, 348–50 (1984); Hopper v.
Evans, 456 U.S. 605, 610–12, 102 S. Ct. 2049, 2052–53, 72 L. Ed. 2d 367, 372–73
(1982).
                                              8

       Aside from the constitutional evolution of the lesser included

offense doctrine, the challenges we have faced in this area of the law

have primarily involved the development of the test to determine the

existence of lesser included offenses for a particular crime. The test we

have settled on to determine whether a crime is a lesser included offense

of a greater crime generally inquires “whether the greater offense cannot

be committed without also committing all elements of the lesser offense.”

State v. Coffin, 504 N.W.2d 893, 894 (Iowa 1993).                      This approach is

called the “impossibility test” and is “[t]he paramount consideration in
determining submissibility of lesser-included offenses.” State v. Turecek,

456 N.W.2d 219, 223 (Iowa 1990).

       The usual method to ascertain whether it is possible to commit the

greater offense without committing the lesser is to strictly compare the

elements of the two crimes—something we have called the “strict

statutory-elements approach.”             Jeffries, 430 N.W.2d at 730–31, 736.4

Under this approach, if the elements of the proffered lesser included

offense are found in the putative greater offense (and the greater offense

contains at least one additional element), then it will be legally

impossible to commit the greater offense without simultaneously

committing the lesser offense. Id. at 730–31. We noted in Jeffries, “If the

lesser offense contains an element not required for the greater offense,

the lesser cannot be included in the greater.” Id. at 740.



       4While  other states use different tests, such as the cognate-evidence approach,
neither party asks us to depart from the Jeffries holding or the elements test. Jeffries
articulated several benefits to the elements test. 430 N.W.2d at 737–39. However, we
did note in Jeffries that if due process requires giving a lesser included offense
instruction to ensure the reliability of the fact-finding process, it is not clear that either
the elements test or the impossibility test could satisfy the due process standard. Id. at
735; see also Blair, 21 Am. Crim. L. Rev. at 464–72.
                                     9

      The elements test is theoretically attractive “because its application

only involves comparing the elements of the individual offenses in the

abstract.   Difficulties, however, in statutory interpretation can arise,

which makes application of the rule less than certain in many cases.”

Blair, 21 Am. Crim. L. Rev. at 447. This case illustrates the difficulty

forecasted by the commentator upon whom we relied heavily in Jeffries.

As we noted in Jeffries, “While described as the easiest . . . approach[] to

apply, the strict statutory-elements approach has been criticized as

inherently inflexible.” 430 N.W.2d at 730; accord Blair, 21 Am. Crim. L.
Rev. at 447.

      We clarified the Jeffries rule in the years following the decision in

an effort to improve upon its application to other cases.        Notably, we

cautioned against applying the elements approach overly restrictively

and to the exclusion of the broader impossibility inquiry. State v. McNitt,

451 N.W.2d 824, 824–25 (Iowa 1990). Indeed, in a case decided almost

contemporaneously with McNitt, we emphasized that “[t]he comparison of

the elements of the greater and lesser crimes, sometimes referred to as

the ‘elements test,’ is only resorted to as an aid in applying the

impossibility test and is fully subsumed therein.” Turecek, 456 N.W.2d

at 223.

      In McNitt, the defendant was charged and convicted of sexual

abuse in the third degree. 451 N.W.2d at 824. At trial, the district court

refused to instruct the jury that the crime of assault with intent to

commit sexual abuse was a lesser included offense.         Id.   That court

reasoned that assault with intent to commit sexual abuse was a specific-

intent crime, while the greater offense of sexual abuse in the third degree
was a general-intent crime. Id. We observed that “[a]pplying the strict

statutory elements test without incorporating the ‘impossibility test,’
                                    10

yields the result that assault with intent to commit sexual abuse is not a

lesser-included offense of sexual abuse in the third degree.” Id.

       Thus, we rejected this result, calling it “too restrictive an

interpretation of our decision in Jeffries.” Id. at 825. We characterized

Jeffries as merely dispensing with the “factual test” contained in prior

lesser included offense jurisprudence, id., which “require[d] an ad hoc

factual determination that there is an evidentiary basis for submitting

the lesser included offense to the jury,” State v. Johnson, 291 N.W.2d 6, 7

(Iowa 1980). We concluded:

              It is obvious that when the “impossibility test” is
       applied, McNitt was entitled to his proposed instruction on
       the lesser included offense. Sexual abuse in the third degree
       cannot be committed without also committing the crime of
       assault with intent to commit sexual abuse.

McNitt, 451 N.W.2d at 825.

       We have also pointed out that “[i]t is not essential that the

elements of the lesser offense be described in the statutes in the same

manner as the elements of the greater offense.” Turecek, 456 N.W.2d at

223.   For instance, elements of one offense can also be combined to

match compound elements of the other offense.        State v. Waller, 450

N.W.2d 864, 866 (Iowa 1990) (equating the first element of criminal
trespass under Iowa Code section 716.7(2)(c) (1987)—“entering”—with

the first two elements of burglary under section 713.1—“entry” and “by a

person”).   Similarly, an offense may be a lesser included offense even

though an element of a lesser offense is phrased differently and may be

committed in a broader array of factual circumstances so long as the

narrower element contained in the greater offense cannot be committed

without committing the broader element in the lesser included offense.
See id. (“Entry upon or in property . . . does not always constitute entry
                                          11

into an occupied structure . . . .          Entry into an occupied structure,

however, always constitutes entry upon or in property . . . .”). Thus, a

particular element of the lesser offense does not need to be identical in

meaning with a particular element of the greater offense so long as the

meanings of the two elements overlap so that the element of the greater

offense cannot be satisfied without also satisfying the element of the

lesser offense.5

       We have also emphasized the concept that the greater offense must

have at least one additional element not found in the lesser offense. See
Coffin, 504 N.W.2d at 896–97. We stated:

       Our legal or elements test requires that the lesser offense be
       composed solely of some but not all of the elements of the
       greater offense. In short, the greater offense must have an
       element not found in the lesser offense. Without such a
       dissimilar element, it is not proper to submit a lesser
       included offense.

Id. at 896 (citation omitted). Thus, Coffin recognizes a straightforward

truth about a lesser included offense analysis: When absolute identity

exists between the elements of two offenses, one offense may not be

submitted as the lesser included equivalent of the other, irrespective of

the level of punishment each offense carries.             See id. (holding district

court did not err when it refused to submit a lesser included offense

instruction when there was complete identity of the elements between

the crimes of extortion, a class “D” felony, and second-degree robbery, a

class “C” felony).     This is because one offense is not actually a lesser

included offense, but rather an alternative offense. See id. at 896–97. In


       5This  important principle is not the same as the principle governing alternative
definitions of statutory elements of crimes. When a statute has alternative definitions,
the relevant definition asserted by the prosecutor is used, and that element is compared
to the alternative definition asserted by the defendant. See Waller, 456 N.W.2d at 866.
                                      12

this limited situation, instructing the jury regarding the proffered lesser

included offense “would . . . infringe upon prosecutorial discretion as to

which charge to file.” Id. at 897.

      C. Analysis of Lesser Included Crimes of Escape. To begin the

process of determining the existence of a lesser included offense in this

case, as in any case, the first task is to look at the elements of the

marshaling instruction actually submitted to the jury.           Turecek, 456

N.W.2d at 223; see also State v. Hickman, 623 N.W.2d 847, 850 (Iowa

2001). The elements of the crime described in the instruction are then
compared with the statutory elements of the proposed lesser included

offense to “determine if the greater offense can be committed without also

committing the lesser offense.” Hickman, 623 N.W.2d at 850.

      In this case, the district court instructed the jury on the elements

of escape pursuant to the instruction modeled after Iowa Bar Association

Criminal Jury Instruction 1900.1.       The instruction, under the theory

prosecuted by the State, identified the following elements of the crime of

escape:

      (1)   The defendant had previously been convicted of a
            felony . . . .
      (2)   By reason of that conviction, the defendant had been
            placed in custody of [a community-based correctional
            facility in Burlington].
      (3)   . . . [T]he defendant intentionally left the . . . [f]acility,
            without the consent or authority of the custodian.

In turn, the statutory elements of the crime of absence from custody are:

(1) the defendant had previously “been committed . . . to a community-

based correctional facility”; and (2) the defendant “knowingly and

voluntarily is absent from a place” the defendant was “required to be.”
Iowa Code § 719.4(3).     In comparing the elements of the two crimes,

Miller argues the instruction he proposed reveals absence from custody
                                   13

was a lesser included offense of escape. Thus, we turn to examine this

argument under our test.

      When the elements of the marshaling instruction for escape are

juxtaposed with the statutory elements of the crime of absence from

custody, the first element of escape can be quickly identified as an

additional element of the greater offense of escape. The crime of absence

from custody does not include a requirement that the defendant be

convicted of a felony or misdemeanor.     Thus, we must compare the

remaining elements to determine if the crime of absence from custody is
a lesser included offense.

      The second element of escape coincides with the first element of

absence from custody.        If a defendant has been committed to a

community-based correctional facility by reason of a felony conviction,

the defendant must necessarily also have been committed to a

community-based correctional facility.     Thus, the fighting question

concerns the comparison of the “intentionally left” element from the

marshaling instruction for the crime of escape with the absent-from-a-

place statutory element of the crime of absence from custody. We must

compare intentionally leaving the facility without consent with being

“knowingly and voluntarily absent from a place where the person is

required to be.” See Iowa Code § 719.4.

      In determining whether these two elements share the identity

necessary to make absence from custody a lesser included offense of

escape, we must ascertain their meaning.      If “intentionally left” and

“absent from a place” have entirely separate meanings, then Beeson is

correct and absence from custody is not a lesser included offense of
escape. See 569 N.W.2d at 112.
                                        14

       We begin by considering the predecessor statutes to section 719.4.

A review of the historical development of a statute can often be helpful in

revealing the meaning of the statute.          Both escape and absence from

custody, as defined in section 719.4, had predecessor statutes. See Iowa

Code § 247A.6 (repealed by 1976 Iowa Acts ch. 1245, § 525); id. § 745.1

(1975) (repealed by 1976 Iowa Acts ch. 1245, § 526). In fact, escape—

particularly as it was defined in section 745.1—has been a statutory

crime for well more than a century in Iowa.            See Iowa Code § 4897-a

(Supp. 1907); id. § 4294 (1860); id. § 2667 (1851).                Section 745.1
provided:

       If any person committed to the penitentiary or to the men’s
       or women’s reformatory shall break such prison and escape
       therefrom or shall escape from or leave without due authority
       any building, camp, farm, garden, city, road, street, or any
       place whatsoever in which he is placed or to which he is
       directed to go or in which he is allowed to be by the warden or
       other officer or employee of the prison whether inside or
       outside of the prison walls, he shall be deemed guilty of an
       escape from said penitentiary or reformatory and shall be
       punished by imprisonment in said penitentiary or
       reformatory for a term not to exceed five years, to commence
       from and after the expiration of the term of his previous
       sentence.

Iowa Code § 745.1 (1975) (emphasis added).6 As revealed by the statute,
escape was a crime committed by persons who had been committed to

prison, and the place of escape not only included the prison itself, but

“any place” the prisoner had been directed to be, either inside or outside

the prison walls. Moreover, we have long recognized that escape meant

departure without authority. See State v. Burtlow, 299 N.W.2d 665, 668




       6A similar statute in chapter 745 prohibited escape from a county jail.   Iowa
Code § 745.8.
                                          15

(Iowa 1980).7 Thus, escape only concerned unauthorized departure, and

the custodial setting from which a person could escape included a prison

as well as a place where the person was directed to be by the warden.

       The legislature, however, separately enacted statutes over the

years following the enactment of the escape statute to additionally

punish the unauthorized failure to return to a place or facility. See State

v. Davis, 271 N.W.2d 693, 696 (Iowa 1978) (mentioning those statutes

demonstrating that the legislature knew how to specifically punish the

failure to return).     More specifically, a statute governing the failure to
return from a furlough was enacted as a part of the legislature’s decision

to adopt a furlough program in Iowa known as the state’s work release

program. See Iowa Code §§ 247A.2, .6 (1975). The program authorized

the temporary release from confinement in a correctional institution

conditioned on a duty to return when the furlough terminated. See id.

This statute made it a crime to fail to return. It provided:

       Any inmate released from actual confinement under a work
       release plan who willfully fails to return to the designated
       place for housing at the time specified in the plan shall be
       guilty of a felony and upon conviction be subject to the
       penalty provided in section 745.1.

Id. § 247A.6.


       7Under    a previous version of the statute, a physical “breaking” was an
indispensable element of the crime of escape; thus, an inmate permitted to leave the
penitentiary who hid from guards at the time to return to the penitentiary—eluding
detection by dropping into a natural crevice in a rock quarry—and thereafter departed
from the quarry could not be convicted of escape. See State v. King, 114 Iowa 413, 414–
15, 87 N.W. 282, 283 (1901); see also Iowa Code § 4294 (1860) (defining escape from
penitentiary as the “break [from] prison and escape from thence”). Clearly intending to
overrule King, our legislature immediately repealed the prior version of the statute and
replaced it with the more broadly worded version ultimately found in section 745.1. See
1901 Iowa Acts ch. 147, § 1 (codified at Iowa Code § 4897-a (Supp. 1907) (repealing
Iowa Code § 4897 (1897))); Iowa Code § 745.1 (1975) (repealed by 1978 Iowa Acts ch.
1245, § 526).
                                    16

      Accordingly, escape and failure to return existed as separate

crimes in Iowa, but both concepts were developed to apply to any place

the person was committed or required to be. As the concept of escape

grew with the changing forms of incarceration in Iowa over the years, the

legislature sought to enact new escape statutes to fully capture the

changing circumstances. For sure, our cases recognized periodic gaps

between the escape law and the different conduct that was associated

with the changing nature of escape, emphasizing the limitations of the

existing statutes governing both escape and the failure to return from an
authorized departure.     See, e.g., Burtlow, 299 N.W.2d at 669–70

(recognizing the failure to return from an authorized furlough did not

constitute escape); State v. Gowins, 211 N.W.2d 302, 306 (Iowa 1973)

(comparing Iowa’s statutory prohibitions of escape and failure to return);

State v. King, 114 Iowa 413, 414–15, 87 N.W. 282, 283 (1901) (holding

an inmate who does not complete an escape without some breaking or

actual force could not be convicted of escape as defined in Iowa Code

section 4897 (1897)).   Additionally, we observed other gaps in the law

that failed to capture the conduct of inmates that put them in a place

within the prison they were not authorized to be. See Davis, 271 N.W.2d

at 694, 696 (holding an inmate who left his cell for dinner but went to

the library to drink liquor with other inmates instead of returning to his

cell could not be found guilty of escape under section 745.1 (1975)).

      The legislature then overhauled the law of escape in 1976 as part

of its comprehensive rewrite of the Iowa Criminal Code.         See id.   The

legislature brought the various concepts of escape together in section

719.4 by delineating four separate crimes of escape.            Burtlow, 299
N.W.2d at 669.    The relevant subsections under consideration in this

case are sections 719.4(1) and (3), which provide as follows:
                                    17
            1. A person convicted of a felony, or charged with or
      arrested for the commission of a felony, who intentionally
      escapes, or attempts to escape, from a detention facility,
      community-based correctional facility, or institution to
      which the person has been committed by reason of the
      conviction, charge, or arrest, or from the custody of any
      public officer, public employee, or any other person to whom
      the person has been entrusted, commits a class “D” felony.
            ....
            3. A person who has been committed to an institution
      under the control of the Iowa department of corrections, to a
      community-based correctional facility, or to a jail or
      correctional institution, who knowingly and voluntarily is
      absent from a place where the person is required to be,
      commits a serious misdemeanor.

Iowa Code § 719.4(1), (3).

      Subsection 1 continued to address the traditional escape conduct

of departure without authority from a detention facility or institution,

largely in the way that the concept has always been defined in Iowa. See

Burtlow, 299 N.W.2d at 669.       Subsection 3, however, broadened the

concept of escape by widening the scope to include being “absent from a

place where the person is required to be.” Iowa Code § 719.4(3). Thus,

subsection 3 now broadens escape from the analog statutes that covered

the conduct associated with “failing to return” to introduce the concept of

being “absent” from a place a person is required to be as a form of

escape. The question then is whether the concept of being absent from a

place excludes the traditional notion of escape covered in subsection 1 or

includes this traditional form of escape.

      The legislative history recognizes our legislature was seeking to

capture all forms of escape as a crime within the statute, and it wrote the

new statute to delineate different crimes as a means to keep the

traditional form of escape separate to allow for different punishment.
See id. § 719.4(1), (3) (describing escape as a felony under subsection 1,

and a serious misdemeanor under subsection 3). The need for a different
                                      18

punishment is tied to the view that the unauthorized departure aspect of

escape presents a greater danger of injury to persons or property,

especially when the escapee is a felon. See Burtlow, 299 N.W.2d at 669.

Yet, the legislature clearly wanted to capture all forms of escape in

rewriting the statute and accomplished this goal by adopting the concept

of being absent.

         The word “absent” means “to be away” or to be “not present.”

Webster’s Third New International Dictionary 6 (unabr. ed. 2002).

Importantly, the meaning of this term does not include specific types of
conduct that might make a person absent. Instead, the term was used

by the legislature as a predicate adjective to describe a person who is

unable to be found in a place or is away from or not present in a place.

Thus, the legislature varied from its historical approach of defining the

escape crimes by describing the prohibited conduct and took an

approach under the new law of describing escape with a broader term

that does not depend on any particular form of conduct.

         The legislature clearly wanted the new statute to cover the failure

of a person to return to a facility by adopting the comprehensive phrase

“absent from a place where the person is required to be.” See Iowa Code

§ 719.4(3).    Thus, a place must necessarily include the facility itself.

Additionally, a person who leaves a correctional facility without authority

is necessarily a person who is absent from a place the person is required

to be.     There is simply no principled reason to conclude a person “is

absent from a place” by failing to return to a facility from a furlough, but

is not also absent from the facility by leaving without authority. This

situation parallels the lesser included offense analysis in Waller. Just as
entry into an occupied structure under burglary always constitutes entry
                                          19

upon property under trespass, a person who intentionally escapes from a

facility will always be absent from a place the person is required to be.8

       Notwithstanding,        the     State     argues     that     some      of    the

pronouncements in our prior cases reveal that the two offenses have

different elemental custodial requirements.             In Burtlow, we found that

the defendant’s conduct did not satisfy the elements of escape because

he did not depart from “physical restraint.” 299 N.W.2d at 669. In State

v. Breitbach, we clarified that physical restraint does not require actual

physical contact, but rather that “an individual either is or would be
subjected to immediate physical restraint if an attempt to flee from

authorities was made.” 488 N.W.2d 444, 449 (Iowa 1992). The State

contends these cases show that absence from custody was intended to

punish completely different conduct than escape. However, consistent

with our legislative history, absence from custody punishes broader

conduct than escape.         While absence from custody “can apply to . . .

[persons] . . . who are not being held physically in confinement and

whose actions do not constitute a breach of any physical restraint,” it is

also broad enough to apply to persons being held in physical restraint. 4

J. Yeager & R. Carlson, Iowa Practice: Criminal Law and Procedure § 428,

at 110 (1979) [hereinafter Yeager & Carlson] (emphasis added). In other


       8We    acknowledge the crime of escape intuitively conjures a different image than
the crime of absence from custody. Yet, the same can be said of burglary and criminal
trespass, which we have held are greater and lesser included offenses under certain
alternatives.     Waller, 450 N.W.2d at 866.      This intuitive approach reveals the
importance of deciding lesser included offense questions based on the tests we have
developed, and it might also help explain the result in Beeson. Of course, if the
legislature did not intend for the escape element of the crime of escape to be subsumed
in the absent element of the crime of absence from custody, it can amend the statute to
reflect its true intent. We also acknowledge that the similarity between the two crimes
may present a challenge for juries at times, but no more than the challenges of
prosecuting a burglary accompanied by the lesser included offense of trespass.
                                         20

words, absence from custody can apply to persons held in either actual

or constructive custody, while escape applies only to persons held in

actual custody. See Breitbach, 488 N.W.2d at 449; Burtlow, 299 N.W.2d

at 669. Thus, if a person satisfies the custody requirement of escape,

then the custody requirement of absence of custody is also necessarily

satisfied.

       The State also argues a person could be guilty of escape under

section 719.4(1) without satisfying all the elements of absence from

custody under section 719.4(3) because the element of escape under
subsection 1 also includes “attempts to escape.” Iowa Code § 719.4(1).

It asserts this alternative element means Miller cannot satisfy the

impossibility test because a person can attempt to escape but not be

absent from the place the person is required to be.

       While the State correctly observes that attempt to escape is a

different element than being absent, our lesser included offense analysis

compares the two crimes “ ‘in the manner in which the State has sought

to prove those elements.’ ” Coffin, 504 N.W.2d at 895 (quoting Turecek,

456 N.W.2d at 223).         “[W]hen a statute provides alternative ways of

committing the offense, the alternative submitted to the jury controls.”

State v. Anderson, 565 N.W.2d 340, 344 (Iowa 1997).                      Here, the

marshaling instruction did not include “attempt” or any other alternative

element from section 719.4(1).          Thus, it does not matter that some

alternatives of escape can be committed without necessarily committing

absence from custody because those alternatives were not charged by the

State.9

       9Insome cases, there may be applicable alternatives of the escape offense that
do not necessarily satisfy the elements of absence from custody. Thus, absence from
custody may not always be a lesser included offense of escape.
                                     21

      Therefore, the two elements under examination sufficiently match

for the purposes of the lesser included offense test.     This conclusion

means it is impossible under the alternative of the criminal offense

charged in this case to commit the greater offense of escape from custody

without also committing the lesser included offense of absence from

custody.

      We can now look back to see that we failed to conduct a detailed

analysis of the jurisprudence on lesser included offenses in Beeson.

Instead, we relied on Burtlow to hold that “[t]he crimes of escape and
voluntary absence are distinct from each other and contain different

elements. Therefore, voluntary absence is not a lesser included offense

of escape.” Beeson, 569 N.W.2d at 112.

      Beeson simply interpreted Burtlow too broadly.       Burtlow was a

1980 decision, one of the first opportunities to interpret the 1976

overhaul of the escape statute. See 299 N.W.2d 665. The defendant in

the case initially pled guilty to escape after failing to return from a

furlough from a state work release center. Id. at 667. On appeal, we

held these facts supported a conviction for absence from custody but not

escape.    Id. at 669.   In doing so, we noted that the legislature’s 1976

amendments to the escape statute did not simply restate the existing

general escape statute, but rather overhauled the law to differentiate

between different levels of criminality. See id. at 668. We explained the

statute:

              Subsection one of section 719.4 obviously applies
      when a person convicted or charged with a felony
      intentionally departs without authority from a detention
      facility or institution to which the person has been
      committed on the conviction or charge. This is true whether
      the departure is accomplished through “stealth, guile or
      violence.”
                                     22

Id. at 669 (quoting 4 Yeager & Carlson § 426, at 110).           In contrast,

“[s]ubsection three of the statute obviously applies when a prisoner is

absent without authority from a place he is required to be, even if he has

not left the premises of the institution or detention facility.” Id. (citing 4

Yeager & Carlson § 428, at 110); see also Davis, 271 N.W.2d at 696

(holding prisoner had not committed escape when prisoner was merely

hiding in the prison library drinking liquor).

      While Burtlow correctly identified that the new escape statute

required different elements to establish guilt for different types of escape
offenses, the decision does not stand for the proposition that all of the

elements of these offenses are different. In other words, just because the

facts in Burtlow were insufficient to satisfy all of the elements of escape,

it does not follow that the separate crime of absence from custody cannot

be a lesser included offense. The Beeson decision mistakenly took the

discussion of the different elements identified in Burtlow and used it to

hold that absence from custody can never be a lesser included offense of

escape. Beeson, 569 N.W.2d at 112. If we had fully applied either the

impossibility test or its subsidiary, the elements test, we would have

reached the correct conclusion. Since Burtlow merely identified that the

escape statute had been expanded into varying levels of offenses, and the

Beeson decision failed to apply a sufficient lesser included test, we

decline to follow Beeson in this case.

      It is true that “we presume the legislature is aware of our cases

that interpret its statutes” and “[w]hen many years pass following such a

case without a legislative response, we assume the legislature has

acquiesced in our interpretation.” Ackelson v. Manley Toy Direct, L.L.C.,
832 N.W.2d 678, 688 (Iowa 2013).            However, it is also true that

“legislation sometimes persists on account of ‘inattention and default
                                          23

rather than by any conscious and collective decision.’ ”                McElroy, 703

N.W.2d at 395 (quoting Ronald Dworkin, Law’s Empire 319 (1986)). In

applying the principle of acquiescence to this case, we do not believe the

lack of an explicit response by our legislature to the Beeson decision has

signaled its acquiescence of our holding. For sure, we did not express

the holding as one of statutory interpretation, and we did not utilize any

specific principles of statutory construction in reaching the decision.

Further, the identity of lesser included offenses is not normally

considered to be a product of statutory interpretation, but the
application of the common law tests we have developed over the years.

       In considering the relief that should be granted in this case, we

recognize the failure to instruct a jury on a proffered lesser included

offense does not automatically require reversal.             State v. Negrete, 486

N.W.2d 297, 299 (Iowa 1992). Yet, failure to instruct the jury as to a

lesser included offense that formed a primary part of the defendant’s

defense is generally prejudicial. See State v. Mikesell, 479 N.W.2d 591,

591–92 (Iowa 1991) (per curiam).            Notably, in Mikesell, we found the

failure to instruct the jury was prejudicial because the defense

essentially conceded the elements of the lesser offense while disputing

only one element of the greater offense. Id. In this case, Miller’s primary

defense was that his conduct did not cover the more narrow element of

escape because he never checked back into the facility from his furlough,

but instead covered the broader element of being absent from the facility

at a time when he was required to be at the facility.10 Accordingly, we

       10Millerdid admit at trial that he heard the correctional officer at the check-in
desk say that he did not have permission to leave the facility. Yet, Miller otherwise
claimed he was entitled to leave the facility for another furlough.           Under the
circumstances, the jury question was presented to support the submission of the lesser
included offense instruction.
                                     24

hold that the district court’s failure to instruct the jury on Miller’s lesser

included offense was prejudicial.

      IV. Conclusion.

      When comparing the statutory elements of absence from custody

to the elements of escape, as set out by the marshaling instructions,

absence from custody is a lesser included offense of escape in this case.

Our contrary holding in Beeson, 569 N.W.2d at 112, was clearly wrong,

and we now overrule that holding.         Consequently, the district court

erroneously applied the law and abused its discretion when it failed to
instruct the jury on the requested lesser included offense, and this error

visited prejudice on Miller. We reverse and remand for new trial.

      DECISION OF COURT OF APPEALS VACATED; DISTRICT

COURT JUDGMENT REVERSED AND CASE REMANDED FOR A NEW

TRIAL.

      All justices concur except Zager, J., who concurs specially.
                                   25
                                                 #11–2087, State v. Miller
ZAGER, Justice (concurring specially).

      I agree with the majority’s conclusion that voluntary absence is a

lesser included offense of escape.      Nevertheless, I write separately

because I suspect that the statute as written was intended to cover

separate and distinct offenses.

      I agree with the majority’s comment that the fighting question

concerns the comparison of the “intentionally left” element from the

marshaling instruction for the crime of escape with the absent-from-a-

place element of the crime of voluntary absence.     I also agree that in

determining whether these two elements share the identity necessary to

make voluntary absence a lesser included offense of escape, we must

ascertain their meanings.   See State v. Burtlow, 299 N.W.2d 665, 668

(Iowa 1980) (indicating the issue of whether conduct falls under section

719.4(1), but not section 719.4(3) raises a question of statutory

interpretation).   If “escape” and “absent from a place” have entirely

separate meanings, absence from custody is not a lesser included offense

of escape. In reading the statute, it is reasonable to conclude that these

elements have separate meanings.
      Iowa Code section 719.4(1) does not define what it means to

“escape.” We have said an escape is an intentional departure without

authority from a detention facility or other institution. See Burtlow, 299

N.W.2d at 669 (explaining when the escape statute applies). Black’s Law

Dictionary defines “escape” as “[t]he departure . . . out of custody of a

person who was lawfully imprisoned before he is entitled to his liberty by

the process of law.” Black’s Law Dictionary 544 (6th ed. 1990). As the

majority notes, escape and absence from custody conjure different
images.   It is not only these different images, but also the different
                                     26

language in the separate provisions that might lead a court to conclude

the legislature intended to create two distinct offenses.

      Iowa has made escape a statutory crime since at least 1851. See

Iowa Code § 2667 (1851). However, prior to the complete rewrite of the

Iowa Criminal Code in 1976, our statute made no criminal distinction

between escape from a penitentiary or being out of a place from where

the warden allowed the prisoner to be, whether inside or outside of the

prison walls. See id. § 745.1 (1975). While not specifically mentioning

escape as a felony, a person guilty of escape was punished by
imprisonment for a term not to exceed five years. See id.

      The legislature also enacted separate statutes to punish the

unauthorized failure to return to a place or facility. State v. Davis, 271

N.W.2d 693, 696 (Iowa 1978) (noting distinction between escape and

statutes addressing unauthorized failure to return).        Specifically, Iowa

Code section 247A.6 provided:

      Any inmate released from actual confinement under a work
      release plan who willfully fails to return to the designated
      place for housing at the time specified in the plan shall be
      guilty of a felony and upon conviction be subject to the
      penalty provided in section 745.1.

By these statutory enactments, it is clear that the legislature intended
there to be harsh consequences for escape from custody, whether from a

secured facility or a failure to return from a furlough. The penalties were

the same: a felony with up to five years imprisonment. See id. § 745.1.

      The legislature overhauled the law of escape in 1976 as part of its

comprehensive rewrite of the Iowa Criminal Code. In the process, the

legislature attempted to delineate the various concepts of escape. See id.

§ 719.4 (1979); see also Burtlow, 299 N.W.2d at 669 (noting the new
statute delineated separate escape offenses).         What is significant,
                                     27

however, is that the statute itself was changed on several occasions since

its initial enactment, particularly subsection 3.

      The initial language of subsection 3 used the language “voluntarily

absents.” 1976 Iowa Acts ch. 1245, ch. 1, § 1904(3) (codified at Iowa

Code § 719.4(3) (1979)). The 1985 amendment changed the language to

“voluntarily leaves.”   Iowa Code § 719.4(3) (1985) (emphasis added).

Then in 1986, the legislature made the most substantive change in

subsection 3. The legislature removed the language “leaves” a place and

substituted “is absent from,” such that the statute punishes a person
who “is absent from a place where the person is required to be.” 1986

Iowa Acts ch. 1238, § 30 (codified at Iowa Code § 719.4(3) (1987)). This

court previously concluded the 1986 change to the statute was an error

correction. See State v. Francois, 577 N.W.2d 417, 419 (Iowa 1998). In

that case, however, the court did not consider whether the change

affected the criminal conduct under Iowa Code section 719.4(3) (1995) as

it related to the criminal act of escape under Iowa Code section 719.4(1),

as we must in this case.     See id. (concluding the change in statutory

language does not indicate the crime of absence from custody is a

continuing offense).

      The elimination of “leaves” in the context of the escape statute is

important for several reasons.       First, the legislature removed the

necessity of having to physically leave a place where a person has been

committed to custody in order to be guilty of voluntary absence from a

place as defined in Iowa Code section 719.4(3) (1987). We presume that

the legislature has a reason for substituting one word for another when it

changes a statute. See Midwest Auto. III, LLC v. Iowa Dep’t of Transp.,
646 N.W.2d 417, 425 (Iowa 2002) (“[A] material modification of statutory

language raises a presumption that a change in the law was intended.”);
                                      28

State v. Ahitow, 544 N.W.2d 270, 273 (Iowa 1996) (“[A]ny material change

in the language of a statute is presumed to alter the law.”). Here, it is

reasonable to assume the legislature intended that the crime is for being

out-of-placement, rather than leaving custody.

       Second, the crime of voluntary absence is a serious misdemeanor

while the crime of escape is a class “D” felony.       Compare Iowa Code

§ 719.4(3)      (2011)   (punishing   voluntary   absence   as   a   serious

misdemeanor), with id. § 719.4(1) (punishing escape as a class “D”

felony).     A class “D” felony carries the possibility of five years
imprisonment.       Id. § 902.9(5).   In contrast, a person convicted of a

serious misdemeanor faces at most one year imprisonment.                 Id.

§ 903.1(1)(b). The need for a different punishment is tied to the view that

an escape from custody presents a far greater danger to the public than

merely being out-of-placement.         See Burtlow, 299 N.W.2d at 669

(explaining the reasoning behind punishing these two types of conduct

differently).   This is precisely why I believe the legislature intended to

create two separate and distinct crimes with two separate and distinct

punishments.       To include a crime for being out-of-placement with our

general escape statute would be duplicative and redundant. We assume

that the legislature does not write statutes that are duplicative and

redundant.      See Hardin Cnty. Drainage Dist. 55, Div. 3, Lateral 10 v.

Union Pac. R.R., 826 N.W.2d 507, 512 (Iowa 2013) (explaining that when

ascertaining legislative intent, we interpret the statute so that no part of

it is redundant or irrelevant). We also have to interpret the entire statute

and give effect to its various parts. See State v. Romer, 832 N.W.2d 169,

176 (Iowa 2013) (explaining that when interpreting statutes, we must
evaluate the entire statute). Applying our rules of statutory construction,

a court could conclude the difference in possible prison terms imposed
                                    29

for these offenses indicates a legislative intent to create two separate and

distinct crimes.     Until today, that conclusion would have been

reasonable.

      It is also important to note that our court had the benefit of this

most recent statutory language on escape when it decided State v.

Beeson, 569 N.W.2d 107 (Iowa 1997).         As in this case, Beeson had

requested an instruction stating voluntary absence was a lesser included

offense of escape. See id. at 112. As the majority states in this case, we

explained in Beeson that “[a]n offense is a lesser-included offense of the
greater when the greater offense cannot be committed without also

committing the lesser crime.” Id. Our court concluded that escape and

voluntary absence have different elements, and it highlighted the

differences as follows:

      “[s]ubsection one of section 719.4 obviously applies when a
      person convicted or charged with a felony intentionally
      departs without authority from a detention facility or
      institution to which the person has been committed on the
      conviction or charge. This is true whether the departure is
      accomplished through stealth, guile or violence. Subsection
      three of the statute obviously applies when a prisoner is
      absent without authority from a place he’s required to be,
      even if he has not left the premises of the institution or
      detention facility.”

Id. (quoting Burtlow, 299 N.W.2d at 669) (citation and internal quotation

marks omitted).

      In modern day corrections, there is clearly a difference between the

concept of being absent from a place a person is required to be and the

traditional notion of escape. With residential facilities now an integral

part of corrections, there are a multitude of reasons for a person

committed to such a facility to be absent, to be away, or to not be present
at such a facility, none of which constitute an escape from custody.

Examples include work, training, school, job search, or even an
                                        30

authorized visit to a significant other.        Subsection 3 was designed to

handle situations where an individual is away from the facility,

ostensibly to go to a specific location or for a particular reason, and ends

up where he or she is not authorized or supposed to be. I think it is

unreasonable to conclude that “place” under subsection 3 necessarily

includes the facility itself. Otherwise, why is there a need for a separate

statute for escape that provides for a different penalty?           When does a

voluntary absence ever become an escape or vice versa? Can each day

an individual is absent from a facility, or each bed check, become a
separate crime of voluntary absence? If so, Miller was arrested nineteen

days after he originally left the facility. Therefore he could potentially be

charged with nineteen counts of voluntary absence and face up to

nineteen years of incarceration.         Under this scenario, why would a

county attorney ever file an escape charge when it would be so much

easier to simply file a multiple-count trial information for voluntary

absence?11

       There is a split of authority as to whether a prisoner who fails to

return to custody following an unsupervised, permissive release from

custody can be prosecuted under a broadly worded escape statute. See

Annotation, Failure of Prisoner to Return at Expiration of Work Furlough or

Other Permissive Release Period as Crime of Escape, 76 A.L.R.3d 658,

682–87 (1977) (describing cases in which prisoners have been held to be

or not to be escapees for failing to return following a work release); 4


        11Although State v. Francois considered whether absence from custody is a

continuing offense, it did so to address the narrow question “whether the crime of
absence from custody is a continuing offense for purposes of tolling the statute of
limitations.” 577 N.W.2d 417, 417 (1998). Thus, the court was careful to narrow the
holding of the case to its facts. See id. at 421 (holding absence from custody “is a
continuing offense for purposes of the statute of limitations”).
                                      31

Wharton’s      Criminal   Law   §    633   (15th   ed.   2013),   available   at

http://www.westlaw.com (updated 2013) (compiling cases in which

prisoners have been, or have not been, held to have committed escape by

not returning to prison). As would be expected, the result often depends

on the wording of the various state statutes involved.

      Having said all this, however, and looking at the statute as written,

I must agree that under the analysis of the majority, voluntary absence is

a lesser included offense of escape.       If the legislature intends that an

offense of this nature should be a separate and distinct crime for
purposes of our escape statute, then it must more clearly define this in

the statute.    Until then, any voluntary absence may or may not be a

lesser included offense of escape, as the majority opinion acknowledges.

Without clarification, trial judges are left in the unenviable position of

attempting to accurately instruct the jury and offering little assistance to

the jury in reaching its decision.