from the Iowa District Court for Polk County, Karen A.
Nyomah appeals his convictions of second-degree robbery and
assault while participating in a felony, arguing the
convictions should have merged.
C. Smith, State Appellate Defender, and Nan Jennisch,
Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, and Timothy M. Hau, Assistant
Attorney General, for appellee.
Considered by Vogel, P.J., and Doyle and Bower, JJ.
Nyomah entered Alford pleas to second-degree robbery and
assault while participating in a felony, among other things.
He now appeals those two convictions, arguing the convictions
should have merged under the merger doctrine, codified in
Iowa Code section 701.9 (2017). That section provides:
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.
we generally review a challenge under the merger statute for
correction of errors at law, see State v. Ceretti,
871 N.W.2d 88, 92 (Iowa 2015), insofar as an unconstitutional
sentence is alleged, our review is de novo, see State v.
Zarate, 908 N.W.2d 831, 840 (Iowa 2018).
the merger and double jeopardy context, the threshold
question is whether it is legally impossible to commit the
greater crime without also committing the lesser."
State v. Stewart, 858 N.W.2d 17, 21 (Iowa 2015).
"If the robbery and assault charges were predicated on a
single assault, the two crimes should merge." See
State v. Wilson, 523 N.W.2d 440, 441 (Iowa 1994).
However, "[i]t is well established in Iowa law that a
single course of conduct can give rise to multiple charges
and convictions." State v. Velez, 829 N.W.2d
572, 584 (Iowa 2013) (citing State v. McKettrick,
480 N.W.2d 52, 57 (Iowa 1992)). Ultimately, a merger claim
turns on whether the two offenses at issue "involve the
same offense." State v. Lewis, 514 N.W.2d 63,
69 (Iowa 1994).
amended trial information alleged Nyomah committed robbery in
the second degree, in violation of sections 711.1 and .3, and
assault while participating in a felony, in violation of Iowa
Code section 708.3. Under sections 711.1 and .3, a defendant
is guilty of second-degree robbery when that defendant
committed a robbery with the intent to commit a theft and, to
assist or further the commission of the intended theft or the
defendant's escape from the scene thereof, the defendant
either committed an assault upon another, threatened another
with or purposely put another in fear of immediate serious
injury, or threatened to commit immediately any forcible
felony. Under section 708.3, a defendant is guilty of assault
while participating in a felony if he committed "an
assault within the meaning of Iowa Code section 708.1
[(2017)] while participating in a felony other that a sexual
abuse." A person commits an assault
without justification, the person does any of the following:
a. Any act which is intended to cause pain or injury to, or
which is intended to result in physical contact which will be
insulting or offensive to another, coupled with the apparent
ability to execute the act.
b. Any act which is intended to place another in fear of
immediate physical contact which will be painful, injurious,
insulting, or offensive, coupled with the ...