review from Iowa Court of Appeals.
from the Iowa District Court for Black Hawk County, George
defendant appeals his conviction for first-degree robbery.
Audlehelm of Audlehelm Law Office, Des Moines, for appellant.
J. Miller, Attorney General, Martha E. Trout, Assistant
Attorney General, Brian Williams, County Attorney, and
Bradley Walz, Assistant County Attorney, for appellee.
getaway driver be convicted of first-degree robbery under the
dangerous weapon alternative without knowing or intending
that the robbery does involve a dangerous weapon? In our
view, the answer to this question is no.
the defendant agreed to be the getaway driver for two others
who were going to rob a pharmacy. The robbery took place, but
the defendant never gave a ride to his compatriots because
they were apprehended by the police before any rendezvous
gun had been used, all three individuals were charged with
first-degree robbery. Iowa Code § 711.2 (2015). After a
joint trial, all three were convicted of that charge. The
defendant appealed, arguing among other things that the
record did not contain substantial evidence he knew a gun
would be used in the robbery. The court of appeals affirmed.
further review, we reverse the defendant's conviction for
robbery in the first degree under Iowa Code section 711.2 and
remand for entry of judgment and sentencing for robbery in
the second degree under section 711.3. We hold that the
defendant's conviction under an aiding and abetting
theory required the State to prove the defendant not only
participated in or encouraged the crime, but also
knew of it, including the dangerous weapon element.
Because the State failed to prove defendant had knowledge or
intent of the use of a gun, a motion for judgment of
acquittal on this basis would have been meritorious, and the
defendant's trial counsel rendered ineffective assistance
in failing to move for acquittal on this basis.
Facts and Procedural Background.
February 9, 2015, the defendant K'von Henderson and his
friends, Riley Mallett, Cody Plummer, Myles Anderson, and
Dayton Nelson, were hanging out at Plummer's home. At
some point, Mallett suggested robbing the Greenwood Pharmacy
in Waterloo. The group agreed and spent the rest of the
evening hashing out the details, including each
participant's respective role in the robbery. The initial
plan was for Anderson and Mallett to enter the pharmacy, and
Henderson and Nelson to be drivers. Henderson would take
Anderson and Mallett away from the scene in a white
Oldsmobile, and Nelson would drive the drugs and money away
in a separate vehicle-a black BMW.
parties also discussed how they would perpetrate the robbery
itself. According to Nelson,  they decided not to use a gun.
Instead, they intended to use a threatening note.
Q. Now, when you made this plan to rob this pharmacy, you
know very well that there was supposed to be no guns at all
involved in this robbery, correct?
A. Yes, sir.
Q. That was made certain at this house, Cody Plummer's
A. Yes, sir.
Q. And it's fair to say that nobody was supposed to even
get hurt in this robbery, correct?
A. Yes, sir.
. . . .
Q. In doing so, during that planning, how were you- how were
the people that entered the pharmacy going to attempt to get
the employees at Greenwood Pharmacy to give them anything
without showing a weapon or without using any kind of force.
A. A note.
Q. And what was the nature of the note going to be?
A. Just so you didn't have to use anything else.
following day, February 10, was a flurry of activity and
communication for the group. Cellphone records revealed that
the parties called each other frequently that day, and the
timing of the calls coincided with later trial testimony as
to when the men were together and when they were apart.
Mallett texted Anderson in the early hours of the morning to
confirm that both had obtained masks for the robbery.
Approximately an hour and a half before the robbery, Anderson
backed out of his role as one of the two entrants into the
pharmacy. Plummer took his place.
group brought two vehicles to the pharmacy parking lot: the
BMW and the Oldsmobile. Mallett drove Anderson and Plummer in
the BMW, while Nelson and Henderson went separately in the
Oldsmobile. After everyone arrived in the pharmacy parking
lot, Nelson exited the Oldsmobile and got into the
driver's seat of the BMW. Henderson split off from the
group and drove the Oldsmobile by himself to the meeting
point where he was supposed to pick up Plummer and Mallett
after the robbery.
to Nelson, after Henderson had left, and immediately before
Plummer and Mallett were to enter the pharmacy, Anderson
produced a firearm similar to a police-issued firearm.
Anderson referred to this gun as ...