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IN THE COURT OF APPEALS OF IOWA No. 1-741 / 10-1767 Filed December 7, 2011 STATE OF IOWA, Plaintiff-Appellee, vs. PHILLIP RAYMOND CLARK, Defendant-Appellant. ________________________________________________________________ Appeal from the Iowa District Court for Black Hawk County, Stephen C. Clark, Judge.

Phillip Clark appeals from his convictions for first-degree burglary, carrying weapons, and two counts of assault while participating in a felony. AFFIRMED.

Mark C. Smith, State Appellate Defender, David Arthur Adams, Assistant State Appellate Defender, and Keith Duffy, Student Intern. Thomas J. Miller, Attorney General, Linda J. Hines, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Joel Dalrymple, Assistant County Attorney, for appellee.

Considered by Sackett, C.J., and Vaitheswaran and Tabor, JJ.

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TABOR, J. Phillip Clark was armed with a .40 caliber handgun when he broke into the Cedar Falls apartment of his former girlfriend. In this appeal, he asks us to find that his conviction for carrying weapons under Iowa Code section 724.4(1) (2009) merges into his conviction for first-degree burglary under section 713.3(1)(b). When we look to the statutory elements, we conclude that an

offender could possess a "dangerous weapon" that would satisfy the element of first-degree burglary without that weapon being a "pistol or loaded firearm" as specified for the carrying-weapons offense. Accordingly, it is possible to commit the greater offense without committing the lesser. Further, because the lesser offense requires proof Clark carried his weapon within city limits and burglary lacks that element, the lesser offense is not wholly contained in the greater offense. We therefore conclude merger is not required under Iowa Code section 701.9. I. Background Facts and Procedures Phillip Clark lived in an apartment in Cedar Falls with his girlfriend, Jaclynne Chizewsky. Although he was not listed on the lease, Clark stayed at the apartment most nights before the pair ended their relationship. The break-up occurred between June 7 and early June 8, 2010, at which point Clark moved out. During the late hours of June 8 and early morning of June 9, Chizewsky was "hanging out" in her apartment with two friends, Natasha Butler and Lucas Vandenberg. While the three were in the bedroom, Chizewsky heard Clark's truck pull into the parking lot and saw him running toward the apartment. She

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rushed to lock, chain, and deadbolt the apartment door before Clark could enter. Then Chizewsky and Clark engaged in a "yelling match" through the door. Despite Chizewsky's pleas for Clark to "go away," he kicked in the door. Clark started to strangle Chizewsky, and held a gun to her head. Butler entered the living room when she heard the door kicked in, but Vandenberg remained in the bedroom. During his attack on Chizewsky, Clark noticed Vandenberg's

sandals in the entryway, and asked, "Whose are those?" Clark then moved to the bedroom, "racked" his gun, and pointed it at Vandenberg. Chizewsky jumped onto Clark's back, as Vandenberg joined in the fray. The ensuing three -way wrestling match spilled out into the hallway and living room. Eventually Clark was able to return to his feet and leave the apartment. A police investigation revealed Clark's father owned a .40 caliber handgun, which was missing that night. On June 21, 2010, the county attorney charged Clark with first-degree burglary, in violation of Iowa Code section 713.3; two counts of assault while participating in a felony, in violation of section 708.3; and carrying weapons, in violation of section 724.4(1). After a three-day trial beginning on August 31, 2010, a jury found Clark guilty on all counts. On October 25, 2010, the district court sentenced Clark to indeterminate prison terms of twenty-five years--with a five-year mandatory minimum--for first-degree burglary, two years for carrying weapons, and five years for each count of assault while participating in a felony. The court ordered that the sentences be served concurrently.

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Clark filed a notice of appeal on October 26, 2010. He contends that because the elements submitted to the jury for the carrying-weapons offense coincided with the elements of first-degree burglary, the offenses should merge. Further, he asserts the legislature did not intend for first-degree burglary and carrying weapons to be punished cumulatively. II. Scope and Standard of Review We review merger challenges under section 701.9 for correction of legal error. 1 State v. Belken, 633 N.W.2d 786, 794 (Iowa 2001); see Iowa R. App. P. 6.907. III. Analysis At issue is the following statute: No person shall be convicted of a public offense which is necessarily included in another public offense of which the person is convicted. If the jury returns a verdict of guilty of more than one offense and such verdict conflicts with this section, the court shall enter judgment of guilty of the greater of the offenses only. Iowa Code

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