Opinion
No. 2-302 / 01-0292.
Filed July 3, 2002.
Appeal from the Iowa District Court for Polk County, LINDA R. READE, Judge.
Defendant appeals from the judgment and sentence entered upon a jury verdict finding him guilty of second-degree robbery as an habitual offender. AFFIRMED.
Charles W. Hendricks and Jeffrey M. Lipman of Lipman Law Firm, P.C., Des Moines, for appellant.
Thomas J. Miller, Attorney General, Kristin Mueller, Assistant Attorney General, John P. Sarcone, County Attorney, and Susan Cox, Assistant County Attorney, for appellee.
Heard by MAHAN, P.J., and ZIMMER and EISENHAUER, JJ.
James Gamble appeals from his conviction for robbery in the second degree as a habitual offender. He contends there was insufficient evidence to support the finding that he committed a robbery by threatening an immediate serious injury. We affirm.
I. BACKGROUND FACTS.
From the evidence presented at trial, the jury could have found the following facts. On October 11, 2000, Mark Hart got off work at approximately 11:30 p.m. and planned to go to his girlfriend Jennifer's apartment following work. On his way to her house, he stopped at a convenience store in Des Moines to get gas. Hart testified that after paying for his gas and exiting the store, he noticed a group of people standing near his car. He later learned that one member of this group was defendant James Gamble. Gamble asked Hart for a cigarette, which Hart gave him. Gamble then entered the passenger side of Hart's vehicle, without invitation to do so, and asked Hart for a ride for a couple of blocks. Hart stated he tried to persuade Gamble to get out of the car because he was in a hurry, but Gamble insisted on a ride. Not knowing what else to do, and wanting to avoid confrontation, Hart decided to give Gamble the ride.
At some point, Gamble asked to borrow some money from Hart. Hart gave Gamble twenty dollars to try and get Gamble out of his car, but was unsuccessful. Gamble gave Hart directions for a few blocks and Hart stopped the vehicle assuming Gamble would get out. However, Gamble stated the person he was looking for was not there and gave Hart additional directions. After driving and stopping in this manner five or six times, Gamble told Hart to pull over by a group of people. Gamble asked the group if any of them knew a particular person. Betty Cross stated she knew the person, and Gamble invited her into the car.
Once Cross was in the vehicle, she and Gamble began talking and laughing as if they knew each other. Hart continued to follow directions from Gamble and Cross and eventually stopped in an alley. Hart then noticed Gamble take forty dollars from the pocket of his work apron. However, Hart did not say anything to Gamble because he felt intimidated by Gamble and Cross and the whole situation. Once stopped in the alley Gamble left the vehicle for a few minutes to talk with some people. Hart phoned Jennifer to let her know he would be late. While only Hart and Cross were in the car, Cross asked Hart for some money, but he told her he had none. Hart asked Cross to exit the vehicle, but she instructed him to wait for Gamble. Cross then stepped out of the car leaving the door open, yelled something to Gamble, and got back into the vehicle. Gamble returned to the car shortly thereafter.
Once Gamble and Cross were both back in the vehicle, Hart was ordered to drive to another alley. In the alley, Gamble got into the back seat with Cross and they began to smoke crack. Hart asked them again to leave the vehicle because he did not condone drug use. The pair refused to leave and accused Hart of being a police officer. Gamble asked for Hart's identification. Hart gave the pair his driver's license and a library card. They then demanded fifty dollars from Hart and asked him to join them in smoking crack. Although Hart initially declined the offer to smoke crack with them, he eventually did smoke a little to prove he was not a police officer. Hart had never smoked crack before.
During this time Jennifer called Hart on his cell phone to see where he was and he told her he was going to be really late and that he was in trouble. Gamble took the phone away from Hart and told Jennifer that Hart was coming and not to worry about it. Cross then took the phone and asked who it was on the phone, and she subsequently hung up on Jennifer. After this call the pair kept the phone in the backseat with them.
Gamble then demanded money from Hart again and told him to go to Hart's residence and obtain more money. Hart resisted this request, but then Cross told him, "If you don't do what my man says, you're going to die," and informed Hart she had a .44 caliber gun and she had given a gun to Gamble as well. Once they arrived at Hart's residence, Cross threatened harm to his family and stated, "If you're in there too long, one of us is going to come in." Gamble kept the keys to Hart's car while Hart went inside to get the money. Hart went inside, got the fifty dollars, and told his mother he had a couple of drug addicts in his car, they had a gun, and they wanted money. Hart told his mother to call the police and have his car pulled over.
Upon Hart's return to the vehicle, he gave the pair fifty dollars, and Gamble insisted on driving. Shortly after departing Hart's residence, the vehicle was pulled over by the police. Gamble and Cross both stated to the police they knew each other prior to that night, but neither had known Hart previously.
Gamble and Cross were charged as codefendants with robbery in the second degree in violation of Iowa Code sections 711.1 and 711.3 (1999). The charges were later amended to also allege they were habitual offenders as defined in section 902.8. The case proceeded to jury trial, and the jury found both defendants guilty of robbery as charged. Gamble stipulated he was a habitual offender. The district court sentenced Gamble to an indeterminate, fifteen-year term of imprisonment. Gamble appeals. We recently affirmed Cross's conviction on direct appeal. State v. Cross, No. 01-0291 (Iowa Ct.App. May 31, 2002).
II. SCOPE AND STANDARD OF REVIEW.
Because a jury verdict is binding on this court when supported by substantial evidence, appellate review of Gamble's sufficiency-of-the-evidence argument is for the correction of errors at law. Iowa R. App. P. 6.4; State v. Speicher, 625 N.W.2d 738, 740 (Iowa 2001). Evidence is substantial if a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. State v. Casady, 597 N.W.2d 801, 804 (Iowa 1999). The jury was entitled "to give as much weight to the evidence as, in its judgment, such evidence should receive." State v. Liggins, 557 N.W.2d 263, 269 (Iowa 1996). "Direct and circumstantial evidence are equally probative." Iowa R. App. P. 6.14(6)(p). This court reviews the evidence in a light most favorable to the State. Casady, 597 N.W.2d at 804. This includes all legitimate inferences that may fairly and reasonably be deduced from the evidence. Id. We consider all evidence presented, not just that of an inculpatory nature. State v. Randle, 555 N.W.2d 666, 671 (Iowa 1996).
III. MERITS.
Gamble argues there was insufficient evidence to prove the requisite elements of second-degree robbery. Specifically, he contends there was insufficient evidence to support the finding that he committed a robbery by threatening an immediate serious injury.
The district court instructed the jury as follows:
The State must prove all of the following elements of Robbery in the Second Degree
1. On or about October 11, 2000, the defendant had the specific intent to commit a theft.
2. To carry out the defendant's intention or to assist him or her in escaping from the scene, the defendant did any of the following:
a. Committed an assault on Mark Hart; or
b. Threatened Mark Hart with immediate serious injury or
c. Purposely put Mark Hart in fear of immediate serious injury.
If the State has proved all of the elements, the Defendant is guilty of Robbery in the Second Degree. If the State has failed to prove any one of the elements, the Defendant is not guilty of Robbery in the Second Degree and you will then consider the lesser included charge of Assault explained in Instruction No. 26.
The court also instructed the jury on the theory of aiding and abetting. A person aids or abets in a crime when that person assents to or lends countenance and approval to another's criminal act, either by active participation or by encouraging it in some manner prior to or at the time of commission. State v. Wedebrand, 602 N.W.2d 186, 189 (Iowa Ct.App. 1999). An aider and abettor is not required to possess the intent to commit the crime, but is only required to have knowledge that the perpetrator possess the intent. State v. Hustead, 538 N.W.2d 867, 870 (Iowa Ct.App. 1995). The important inquiry is whether the aider and abettor had knowledge that a criminal act was intended, and participated in some way with the intent to encourage that act. Id. Knowledge of the crime may be shown by circumstantial evidence. State v. Buttolph, 204 N.W.2d 824, 825 (Iowa 1972). This evidence may include "presence, companionship, and conduct before and after the offense is committed." Hustead, 538 N.W.2d at 870 (quotation omitted). The subsequent conduct, however, is relevant only as it shows the accused's prior encouragement or participation. Id.
We conclude there is substantial evidence supporting the jury's verdict, whether based on the theory that Gamble was an aidor and abettor or a principal. First, we find substantial evidence that Gamble aided and abetted Cross in the commission of the robbery. Cross told Hart that if he did not do what Gamble said, he was going to die. She then told Hart that she had a .44 caliber gun and that she had given Gamble a gun as well. Hart testified that Cross's statement about him dying "scared the hell out of me," and her statements plus subsequent threats by Cross and Gamble left him in fear of immediate serious injury, a fear that continued until his car was pulled over by the police. Based on this evidence, we conclude that Hart's testimony constitutes substantial evidence from which the jury could find Cross assaulted Hart, threatened him with immediate serious injury, and purposely placed him in fear of immediate serious injury.
Gamble's actions show that he assented to or lent countenance and approval to Cross's criminal act, by actively participating in it or by encouraging it. Gamble entered Hart's vehicle uninvited, and remained there despite Hart's requests that he leave. Gamble invited Cross into Hart's vehicle. Gamble took forty dollars from Hart's apron, and he had previously received twenty dollars from Hart. Gamble took the phone from Hart when his girlfriend called, and the phone was not returned to Hart. Gamble took Hart's driver's license. Gamble wanted more money from Hart, and directed Hart to go to his home. Once there, Gamble took Hart's car keys. After Hart returned to his car and gave Gamble and Cross money, Gamble drove.
Hart testified that though Cross made the threatening statements, she was talking to Gamble, and it seemed as though they were conversing about the situation. Gamble and Hart got along very well, they did not fight, and neither of them said they should not threaten Hart. Gamble did not respond to Cross's verbal threat to kill Hart, which she made directly after Hart objected to Gamble's demand for Hart to get more money and go to Hart's home.
Finally, we also conclude that substantial evidence supports a finding that Gamble threatened Hart with immediate serious injury as a principal. Gamble's actions, both verbal and nonverbal, created a threat of immediate serious injury. In addition to the evidence noted above, Hart testified that as far as he could tell, both were active participants. Hart stated, "I was pretty much frightened of both of them equally." He felt intimidated from the time Gamble got into his car until the police stopped them. Hart went from being intimidated to being scared and fearful of physical harm and what they would do if he did not follow their instructions.
IV. CONCLUSION.
We conclude there is substantial evidence in the record supporting the jury verdict finding Gamble guilty of second-degree robbery, either as principal or as an aidor and abettor. Accordingly, we affirm Gamble's judgment and sentence.
AFFIRMED.