STATE OF IOWA vs. KEVIN EUGENE JOHNSON

The State charged defendant Kevin Johnson with Count 1: burglary in the

third degree of a Family Dollar store on March 17, 2014; Count 2: burglary in the

third degree of a Jehovah’s Witness Church on March 17, 2014; Count 3:

burglary in the third degree of the L & K Laundry on January 24, 2014; Count 4:

theft in the first degree for property taken at the L & K Laundry; and Count 5: theft

in the second degree for property taken at the Family Dollar. The State also

alleged Johnson was subject to the habitual offender enhancement on each

count. On December 30, 2014, Johnson stipulated he had been previously

convicted of at least two felonies and was subject to the habitual offender

enhancement.

Johnson waived a jury, and a trial to the court commenced on January 6,

2015. On May 24, 2015, the trial court filed its findings of fact, conclusions of law

and verdict—guilty on all counts as charged with the habitual offender

enhancement. Johnson was sentenced on September 18, 2015, to

imprisonment for a period not to exceed fifteen years on each count. Count 1

was ordered to be served consecutively to Count 3. Johnson filed a timely notice

of appeal on September 21, 2015. On appeal, he claims (1) the convictions

cannot stand as the testimony of the accomplice was not corroborated, and (2)

the trial court abused its discretion in sentencing him to consecutive terms of

imprisonment.







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I. Corroboration Issue.

When the defendant challenges the trial court’s determination that

corroborating evidence existed to warrant submission of the case to the trier of

fact, our review is for correction of errors of law. See Iowa R. App. P. 6.907.

A. Legal standard for corroboration of accomplice testimony.

Iowa Rule of Criminal Procedure 2.21(3) provides that a person may not

be convicted “upon the testimony of an accomplice or a solicited person, unless

corroborated by other evidence which shall tend to connect the defendant with

the commission of the offense; and the corroboration is not sufficient if it merely

shows the commission of the offense or the circumstances thereof.”

Corroborative evidence need not be strong nor confirm every material fact. State

v. Berney, 378 N.W.2d 915, 918 (Iowa 1985). And it need not confirm all the

elements of the crime charged. State v. Cuevas, 282 N.W.2d 74, 78 (Iowa

1979). Such evidence may be direct or circumstantial. State v. Bugely, 562

N.W.2d 173, 176 (Iowa 1997). Any corroborative evidence tending to connect

the defendant to the commission of the crime supports the credibility of the

accomplice and is sufficient. State v. Vesey, 241 N.W.2d 888, 890 (Iowa 1976).

The only requirement is that the accomplice’s testimony be supported in some

material fact tending to connect the defendant to the crime charged. State v.

Aldape, 307 N.W.2d 32, 41 (Iowa 1981). It must be inculpatory but need not be

entirely inconsistent with innocence. State v. Larson, 512 N.W.2d 803, 806 (Iowa

Ct. App. 1993).

The corroboration requirement serves two purposes: “First, it

independently tends to connect defendant to the crime. Second, it supports the

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credibility of an accomplice whose motives are clearly suspect because of the

accomplice’s self-interest in focusing blame on the defendant.” State v. Brown,

397 N.W.2d 689, 694 (Iowa 1986). The existence of corroborative evidence is a

question of law for the court, but its sufficiency is a question of fact for the fact

finder. Bugely, 562 N.W.2d at 176. Each case must be governed by its own

circumstances, and evidence that merely raises a suspicion the accused is the

guilty party is not sufficiently corroborative of the testimony of an accomplice to

warrant a conviction. State v. Gillespie, 503 N.W.2d 612, 617 (Iowa Ct. App.

1993).

When evaluating sufficiency challenges, we do not resolve conflicts in the

evidence, assess the credibility of witnesses, or weigh evidence. State v.

Nitcher, 720 N.W.2d 547, 559 (Iowa 2006). Rather, we view all the evidence in

the light most favorable to the State, even if contradicted, and indulge in every

legitimate inference that may be fairly and reasonably deduced from this

evidence. State v. Robinson, 288 N.W.2d 337, 340 (Iowa 1980). The fact-finder

decides which evidence to accept or reject. State v. Williams, 695 N.W.2d 23, 28

(Iowa 2005).

B. Discussion.

At trial Johnson did not dispute that the crimes had occurred but denied

his involvement. Evidence produced by the State at trial that Johnson was

involved in the burglaries and thefts was substantially based on the testimony of

an accomplice, Jimmy. Johnson claims that Jimmy’s testimony was not

corroborated as required by rule 2.21(3) and, therefore, the evidence was

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insufficient to convict him, his convictions must be reversed, and the case must

be remanded for dismissal.

In its written findings, the trial court set out the evidence establishing the

burglaries and thefts occurred, as well as the evidence the court found

corroborated the accomplice’s testimony that Johnson participated in these

crimes. Jimmy testified that he and Johnson committed all three burglaries, and

Johnson does not challenge the trial court’s findings of fact as not being

supported by evidence.

Since Johnson does not challenge the crimes occurred, we find it only

necessary to look at the district court’s findings as to evidence of corroboration

connecting him to these crimes and determine if it meets the legal requirement to

establish defendant’s guilt.

C. Burglaries and investigation.

1. L & K Laundry. During the night of January 24, 2014, L & K Laundry in

Sioux City was burglarized. When the laundry opened for business in the

morning, the owner discovered the break-in and reported it to the Sioux City

police. In investigating, police observed damage to the back door and a

bar/brace inside the door indicating the door had been pried open. Additionally,

officers found that the phone line on the outside of the building and wires

connected to two alarms inside the building were cut. A safe inside the laundry

office area had been moved, pried open, and the contents stolen. An

identification technician processed the laundromat. No fingerprints were

discovered; however, a partial shoe print consistent with Nike Shox shoes was

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obtained from on top of the safe. As of March 17, 2014, no arrests had been

made in regard to this burglary.

2. Jehovah’s Witness Church. In the early morning hours of March 17,

2014, sometime before the burglary of the Family Dollar store, there was a

break-in at the Jehovah’s Witness Church in Sioux City, Iowa. At approximately

4:30 a.m., Tom Callender, a volunteer minister at the church, received a phone

call at his home from Midwest Alarm System informing him the signal from the

church had been lost and Midwest Alarm had been unable to restore that signal.

Because the alarm company was unable to determine any specific cause for the

lost signal, Callender did not immediately contact the police.

At approximately 9:00 a.m., another church member discovered the

church break-in, and the police were called. Investigation disclosed that locked

cabinets and desk drawers were broken open and appeared to be ransacked.

An alarm was broken off of a wall. On the outside of the building, the hinge pins

in a side door had been removed and there were pry marks to the door. Security

lights near that side door and on a garage were broken. Phone lines that were

also used for the Midwest Alarm system had been cut. A binder and paperwork

were missing from one of the offices, the garage door opener was missing from a

storage room inside the church, and a lawn mower blade was missing from

inside the garage.

3. The Family Dollar Store. At 5:12 a.m. on March 17, 2014, Sioux City

police were notified the door to the Family Dollar store was open and noise was

coming from inside. Due to the significance of the evidence surrounding this

crime, the district court’s findings are set out here in detail:

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Officer Noltze arrived first and parked on the east side of the Family Dollar Store where he observed the open door. . . . Officers Fleckenstein and Hansen arrived just after Officer Noltze. As Officers Fleckenstein and Hansen pulled in on the west side of the building, they both observed two individuals wearing dark clothing and appearing to be carrying something running out of the front door of the store on the south side of the building, then running west and then north around the building, and then going down into a ravine that ran approximately east-west to the rear or north of the store. . . . Officer Noltze crossed a bridge and parked on the north side of the ravine. From his position on the north side of the ravine, Officer Fleckenstein could hear noises down in the ravine under the bridge; however, he could not see any persons because it was still dark at that time of the day. He then called his K-9 Eik and gave a standard verbal K-9 warning to the persons under the bridge. Immediately after giving this warning, one of the persons began running in a northwesterly direction within the ravine; however, Officer Fleckenstein and K-9 Eik were unable to get down into the ravine and catch up to this person due to the darkness, the difficult terrain, and the brush or thickets growing in the bank of the ravine. Officer Fleckenstein and K-9 Eik then returned to the bridge, and he gave another K-9 warning to the other person who was still hiding in the ravine. Officer Fleckenstein then found an area for Eik to go down into the ravine, and K-9 Eik shortly thereafter apprehended that person. The person apprehended under the bridge was Jimmy . . . . After Jimmy . . . was apprehended and taken into custody, Officer Fleckenstein located under the bridge cash in an ATM box in the amount of $4,380, two plastic money bags of cash in the approximate amount of $1,000, and a duffel bag containing a hammer, pry bar, and a lawn mower blade which was later determined to be consistent with the lawn mower blade missing from the garage at the Jehovah’s Witnesses Church. Officers Noll and Harstad also responded to the call and assisted in the investigation of the Family Dollar Store. Within the brush leading down into the ravine from the store, officers found a black mask and white cotton glove that had been worn by Jimmy . . . . They also located wire cutters outside the Family Dollar Store which were believed to have fallen out of a hole in the duffel bag. . . . While Officers Harstad and Reed were investigating the store, the store manager, Cheryl Kollbaum, was called, and she walked around the inside and outside of the building with the officers. . . . They noted damage to the electrical system and cut phone lines in a back room area of the store and damage to a heat sensor on the ceiling . . . (Jimmy . . . testified that he thought the heat sensor was a camera). Directly beneath the heat sensor, they

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observed a footstool with a shoe print. . . . [Kollbaum] also identified the cash bags and ATM box that were located underneath the bridge. After Officer Noltze cleared the inside of the store and Officers Harstad and Reed arrived at the store, Officer Noltze then used his K-9 in an effort to “track” the other person who had run away from under the bridge. Officer Noltze and his K-9 tracked that person in the ravine and through underground culverts. Officer Noltze and his K-9 lost the scent of the person on the street level above the culvert in the area of South Rustin Street. . . . . During this time, Officer Finken was dispatched to the Regency Trailer Park located northeast from the Family Dollar Store in response to a report of a suspicious van parked in front of an abandoned trailer. The van was registered in the name of Theresa Aguirre who had also just reported the van as being stolen. It was later discovered that Ms. Aguirre and Jimmy . . . were romantically involved and were the parents of the same children. Officer Finken searched the inside of the van and located insurance cards in the name of Jimmy . . . . Officer Finken also found a bag with paperwork and a garage door opener which were later identified as the paperwork and garage door opener that were missing from the Jehovah’s Witnesses Church. As noted above, Carmen Gonzalez-Castro also testified at trial. Ms. Gonzalez testified that in the early morning hours of March 17, Defendant called her asking for a ride because his vehicle had broken down. Ms. Gonzalez further testified that she eventually agreed and picked up Defendant at a location just north of the area where the culvert passes under South Rustin Street. Ms. Gonzalez testified that Defendant was alone and got into the backseat of her van. She further testified that Defendant was wearing dark clothing, was muddy, and sounded and appeared to be out of breath. According to Ms. Gonzalez, Defendant asked her to drop him off at an apartment building located behind his residence, which she did. According to Ms. Gonzalez, she noticed as Defendant got out of her vehicle that his back left pant leg was torn, and his leg appeared to be bleeding. Ms. Gonzalez further testified that the next morning, March 18, her children noticed clothing items in the rear storage area of the van, specifically a pair of muddy Nike Shox tennis shoes, a pair of white cotton gloves, and a black or gray mask. Ms. Gonzalez and Theresa Aguirre then put these items in a plastic bag and took them to Defendant’s residence and left them with Defendant’s spouse, Sherri Johnson. They then contacted the Sioux City Police. Officer Martinez subsequently retrieved and seized the bag of items which had been placed by Sherri Johnson in the backyard of the residence.

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Prior to these events on March 18, Sherri Johnson had already become aware of the burglaries and she suspected involvement of Defendant. In particular, during his interview by Detective Sanders on the 17th, Jimmy . . . stated that Defendant was the second person involved and not Jimmy Merchant as he previously stated. Detective Sanders requested and obtained a warrant to search Defendant’s residence, and such search was executed while Sherri Johnson was present on March 17. No items were located at that time. Based on the information that had been obtained, Detective Sanders also attempted to contact the Defendant and eventually spoke to him by phone. Defendant told Detective Sanders words to the effect that they would not catch him. [Identification] Tech Roach processed evidence obtained at . . . the Family Dollar. No fingerprints were discovered; however, a partial shoe print was taken . . . from the footstool at the Family Dollar. [The] shoe print [was] consistent or otherwise similar in size and pattern to Defendant’s Nike Shox shoes.



D. Corroboration.

1. Family Dollar. The district court recognized the accomplice’s

testimony had to be corroborated to find defendant guilty. Upon our review, we

conclude the trial court did not commit legal error in finding corroborating

evidence and, as a result, finding Johnson guilty of the Family Dollar burglary.

The trial court found the accomplice Jimmy was a credible witness. Jimmy was

caught shortly after being seen running out of Family Dollar with another man.

Items from the church burglary were found in a vehicle registered to Theresa

Aguirre, Jimmy’s significant other, parked not far from the Family Dollar store.

More significant, when the police arrived at the Family Dollar, officers

observed two men running out of the store wearing dark clothing, and the officers

noted the respective sizes of the individuals as they ran into a ravine. The

descriptions fit both Jimmy and Johnson. Using a K-9 police dog, Jimmy was

captured, and the other person was tracked through the ravine until the K-9 lost

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the scent near South Rustin Street. Within the brush leading down into the

ravine from the store, officers found a black mask and white cotton glove that had

been worn by Jimmy.

Sometime around 7:00 a.m. on March 17, Johnson called Carmen

Gonzalez-Castro asking for a ride because his vehicle had broken down. She

agreed and picked Johnson up at a location just north of the area where the

culvert passes under South Rustin Street. He was alone, and he got into the

backseat of her van. He was wearing dark clothing, was muddy, and sounded

and appeared to be out of breath. Johnson asked her to drop him off at an

apartment building located behind his residence, which she did. As he got out of

her vehicle, she noticed that his back left pant leg was torn and his leg appeared

to be bleeding.

The next morning Gonzalez-Castro found clothing items in the rear

storage area of her van, specifically a pair of muddy Nike Shox shoes, a pair of

white cotton gloves, and a black or gray mask. She and Aguirre then put these

items in a plastic bag and took them to Johnson’s residence and left them with

Johnson’s spouse. Officer Martinez later retrieved and seized the bag of items,

which Sherri Johnson had placed in the backyard of their residence.

The white gloves found in the ravine worn by Jimmy were consistent with

those found in the van and the type used at Johnson’s employment. The Nike

Shox shoes were consistent in size and sole configuration with the shoe print

taken from the stool inside the Family Dollar. The trial court acknowledged the

“partial print does not have the same unique characteristics such as a fingerprint

connecting Defendant and only Defendant to the crime; however, it is

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circumstantial evidence pointing to his involvement and supporting the testimony

of Jimmy . . . .”

Johnson argues the failure to establish definitively that the shoe print was

made by his Nike Shox shoes defeats corroboration. We do not agree. This

might be true if the State was relying on this evidence alone to prove Johnson

guilty of the burglary. See State v. Mark, 286 N.W.2d 396, 409 (Iowa 1979) (“In

order to establish a proper foundational connection between defendant and the

crime scene shoe prints, it was necessary that the State establish that similarities

existed between the distinctive characteristics exhibited by defendant and the

characteristics exhibited by the maker of the crime scene shoe prints.”). Here,

the State is only relying on this as evidence of corroboration to satisfy the rule,

and it only needs to tend to connect Johnson to the crime. See Bugely, 562

N.W.2d at 176-77 (“The existence of a second, small set of footprints at these

burglaries confirms that a second person was involved. These prints, which

match those present at [the first] residence, show the same person who

committed the [first] burglary was present at the [second] burglar[y].”). In Bugely,

the defendant’s shoes were not found and were not available for comparison to

the shoe prints. The shoe evidence was still deemed sufficient corroboration of

the accomplice’s testimony to justify submission to the jury. The defendant’s

shoes found by Gonzalez-Castro, together with the other items and

circumstances of her giving defendant a ride at a location near where the police

K-9 lost the scent within the time frame of his fleeing the Family Dollar,

sufficiently connected defendant to the Family Dollar burglary as to corroborate

Jimmy’s testimony.

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In addition to the foregoing, the State presented evidence that Johnson

did not return to his employment on or after March 17. Further, Detective

Sanders called Johnson on March 17 using Jimmy’s cellphone. Sanders

testified, “I told him that I needed to speak with him at the police department.

Basically, he said that he wasn’t going to come in. Then I told him that I would

issue warrants for his arrest, and his comments were basically, ‘Good luck trying

to find me.’” Johnson again argues this evidence does not establish his guilt.

This evidence alone would not be sufficient corroboration. But our supreme court

has recognized there may be a combination of circumstances, singularly

unpersuasive but in totality sufficient, to entitle the trier of fact to conclude that

the accomplice’s testimony has been corroborated in accordance with the

statutory requirement. See State v. Willman, 244 N.W.2d 314, 315 (Iowa 1976).

And there is a difference in the quantum of proof of identity necessary for

evidence being used as substantive proof of guilt as opposed to evidence being

used to corroborate an accomplice. State v. Gates, 67 N.W.2d 579, 583 (Iowa

1954). Rather, “inculpatory facts in testimony of an accomplice or accomplices

were corroborated by evidence showing the defendant’s association with the

accomplice or accomplices, proximity to the crime scene and additional

suspicious circumstances suggestive of the defendant’s participation in the

offense.” Vesey, 241 N.W.2d at 891. The evidence of corroboration as found by

the trial court was sufficient as to the Family Dollar store burglary to support the

finding of guilt. The district court is therefore to be affirmed as to Counts 1 and 5.

2. Jehovah’s Witness Church. The trial court initially noted that Jimmy

was involved in both the burglary at Family Dollar and the burglary at the

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Jehovah’s Witness Church. The trial court also found the extent of damage and

other observations made at the church suggested that at least one other person

was involved in the church break-in with Jimmy. Based on these circumstances,

the trial court found the same corroborating evidence proving Johnson’s

involvement in the Family Dollar burglary indirectly corroborated the testimony of

Jimmy that Johnson was the other person involved in the burglary of the church.

We cannot agree when these findings are evaluated in light of the Vesey

case. Corroboration of testimony that is not inculpatory is not corroboration of a

material fact tending to connect the accused with the crime. Id. The extent of

damage may indicate that more than one person burglarized the church, but it

does not place Johnson there.

The trial court also found that the facts and circumstances of the Family

Dollar burglary were strikingly similar to the facts and circumstances of the

church burglary to be considered evidence identifying Johnson as one of the

perpetrators of the church burglary. We cannot agree. The trial court

acknowledged that similarity between two crimes must be so strikingly similar or

of a unique nature that involvement in the prior crime makes it more likely that

defendant was involved in the present crime. See State v. Butler, 415 N.W.2d

634, 636 (Iowa 1987) (“When prior crimes evidence is offered to prove identity,

‘the test of relevancy is whether the prior crime and the crime for which

defendant is being charged reveal circumstances that are ‘strikingly similar’ or of

a ‘unique nature,’ such that involvement in the prior crime makes it more likely

that defendant was involved in the present crime.’”). The circumstances of the

two burglaries are not so similar or unique so as to establish Johnson’s

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participation in the Family Dollar proves he also participated in the church

burglary.

The trial court also found that Jimmy used Aguirre’s van to drive from the

church to the area of the Family Dollar and, therefore, it was reasonable to

conclude that Johnson was with Jimmy at the church since no means of

transportation explained how Johnson got to the Family Dollar. The trial court

stated:

To conclude otherwise would mean that Jimmy . . . either accomplished the church burglary by himself and then picked up Defendant in the middle of the night on his way to the Family Dollar; or, that Jimmy . . . and a third person committed the burglary at the church, then that third person left or was dropped off somewhere by Jimmy . . . before [he] then picked up Defendant to go to the Family Dollar. These scenarios are certainly possible; however, they are not likely or reasonable.



No corroborating evidence was found to indicate Johnson was in the van

or at the church. The trial court found the scenarios were only possible.

Evidence which merely raises a suspicion the accused is the guilty party is not

sufficiently corroborative of the testimony of an accomplice to warrant a

conviction. Gillespie, 503 N.W.2d at 617.

The sole connection between Johnson and the burglary of the church is

the temporal connection—the church burglary occurring within hours of the

Family Dollar burglary. Using that link, the court stated, “Based on these

circumstances, the same corroborating evidence proving Defendant’s

involvement in the Family Dollar burglary indirectly corroborates the testimony of

Jimmy . . . that Defendant was the other person involved in the burglary of the

church.” The accomplice’s testimony must be supported in some material fact

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tending to connect the defendant to the crime charged. See Aldape, 307 N.W.2d

at 41. The temporal connection does not eliminate the need to connect Johnson

to the particular charge. Bugely, 562 N.W.2d at 176-77.

Since the State did not present evidence to corroborate Jimmy’s testimony

that Johnson was involved in the church burglary, the trial court erred as a matter

of law in holding there was corroboration. Johnson’s conviction as to Count 2

must be reversed and the case remanded with direction to dismiss this count.

3. L & K Laundry. In regard to Johnson’s involvement in the L & K

Laundry burglary, the trial court initially concluded the facts and circumstances of

the burglaries at the Jehovah’s Witness Church and Family Dollar were strikingly

similar to this burglary, which occurred within the same general time frame as the

other two burglaries. Additionally, the court relied on the fact that Jimmy was

involved in all three burglaries and its previous conclusion Johnson had

committed the church and Family Dollar burglaries with Jimmy.

As discussed above, the facts and circumstances of the burglaries are not

so strikingly similar or unique that such a connection can be made. The laundry

burglary was two months prior to the church and Family Dollar burglaries. As we

have already held above, the State did not present adequate corroborative

evidence to connect the defendant to the Jehovah’s Witness Church burglary.

The trial court found, even ignoring the evidence of the other burglaries,

that the damage to the laundry, including the moving and forced entry into the

safe, proved that Jimmy did not act alone. Again, evidence that someone must

have helped with the burglary is still not corroborative evidence connecting

Johnson to the crime. The trial court also noted that Johnson was familiar with

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the laundry, its layout, and the owner’s practice of having cash available to cash

customers’ payroll checks. Additionally, Johnson was at the laundry the day

before the burglary. None of these findings place him at the laundry at the time

of the burglary. Moreover, no evidence of this burglary (cash, jewelry, or

cigarettes) was discovered during the search of Johnson’s residence.

Finally, the trial court found the partial shoe print identified on the top of

the safe was consistent with the shoe print found at Family Dollar and Johnson’s

Nike Shox shoes. But the trial court recognized the “partial print does not have

the same unique characteristics such as a fingerprint connecting Defendant and

only Defendant to the crime.” The trial court went on to state that this was

“circumstantial evidence pointing to [Johnson’s] involvement and supporting the

testimony of Jimmy.” The trial court thus concluded “that Jimmy’s testimony,

along with this other evidence corroborating such testimony and linking

Defendant to the crime, proves [Johnson’s] guilt beyond a reasonable doubt.”

We agree with the district court that the Nike Shox shoe print, by itself,

does not connect Johnson to the crime. But when considered with the other

evidence of the similar shoe print found at the Family Dollar store and the

corroborative evidence connecting Johnson to the Family Dollar burglary, this is

sufficient corroborative evidence to tie him to the L & K Laundry burglary. There

was no legal error as to Counts 3 and 4, and those verdicts and judgments are

affirmed.

II. Consecutive Sentences.

“We review sentencing decisions for an abuse of discretion or defect in the

sentencing procedure.” State v. Hopkins, 860 N.W.2d 550, 553 (Iowa 2015).

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“An abuse of discretion will only be found when a court acts on grounds clearly

untenable or to an extent clearly unreasonable.” Id.

A sentencing court is required to “state on the record its reason for

selecting the particular sentence.” Iowa R. Crim. P. 2.23(3)(d); State v. Formaro,

638 N.W.2d 720, 724 (Iowa 2002). Sentencing courts are encouraged to “give

more detailed reasons for a sentence specific to the individual defendant and

crimes.” State v. Hill, 878 N.W.2d 269, 275 (Iowa 2016). Further, courts “should

also explicitly state the reasons for imposing a consecutive sentence, although in

doing so the court may rely on the same reasons for imposing a sentence of

incarceration.” Id. at 275. Here, the trial court imposed consecutive sentences

for Count 1, the burglary of the Family Dollar store, and Count 3, the burglary of

the L & K Laundry. Johnson contends the trial judge failed to articulate on the

record the reasons for imposing these consecutive sentences.

Upon our review of the record, we find the trial court met the requirements

of rule 2.23(3)(d) and adequately stated not only the reasons for imposing prison

sentences, but also consecutive sentences. We find no error or reason to

remand the case for resentencing. Except for Count 2, the trial court’s sentences

should be affirmed.

The convictions and sentences in Counts 1, 3, 4 and 5 are affirmed. The conviction is reversed as to Count 2, and the case is remanded to the district court for dismissal of Count 2 for the reasons set forth in this opinion.