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Date: 04-06-2017

Case Style:


Case Number: 16-1161

Judge: Mary Ellen Tabor


Plaintiff's Attorney:

Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney General

Defendant's Attorney:

Mark C. Smith, State Appellate Defender, and Brenda J. Gohr, Assistant Appellate Defender

Description: Jazmond and Keenan are brothers; Kendale is their cousin. One evening
in late August 2015, they were “hanging out” on Pershing Avenue in Davenport.
They saw Ramon, who they knew sold marijuana, take something out of his trunk
and enter the house where he lived with his father, Raymond March. Kendale
recalled discussing with his two companions a plan to take marijuana from
Ramon without paying for it. To be sure nothing went wrong and they left the
house with the marijuana, they decided Jazmond and Keenan would enter the
house to outnumber Ramon while Kendale waited in his silver Chevy Impala to
aid the getaway. After leaving his two companions at the March house, Kendale
parked near the Sav-A-Lot grocery store a few blocks away.

Raymond was across the street talking with a neighbor as he saw his son
go into the house with two young men who pulled up in a Chevy. When the two
men came back out, one was carrying several shoe boxes. A few moments later,
Ramon emerged from the house and ran toward his father looking scared and
saying he had been robbed at gunpoint. As a first instinct, Raymond yelled “drop
my son’s shit” and started to chase the young men, but he soon gave up. He
testified: “I’m sixty years old. I knew I couldn’t catch them.” Raymond saw the
pair run up an alley and get into a silver Impala.
According to Kendale, after he picked up Jazmond and Keenan, they
drove to another friend’s house with the marijuana stolen from Ramon. A few
hours later, they returned to the alley to retrieve three or four pairs of “Jordans”
kept in the shoeboxes that Keenan had stashed in a dumpster.
Meanwhile, the Marches called the police to report a robbery. Davenport
police officers interviewed both Ramon and Raymond at their home. During the
follow-up investigation, the Marches both identified Jazmond and his
accomplices from photographic lineups.
In January 2016, the State filed a joint trial information, charging Keenan,
Jazmond, and Kendale with robbery in the first degree and conspiracy to commit
a forcible felony. The State also charged Jazmond with possession of a firearm
as a felon. Jazmond waived his right to a jury trial and was tried jointly with
Keenan. In exchange for a plea deal, Kendale agreed to testify for the State at
the April 18 bench trial. After hearing testimony from Kendale, Raymond, and
several police officers, the district court acquitted Jazmond on the robbery and
felon-in-possession counts, but it found him guilty of conspiring to commit the
forcible felony of robbery in violation of Iowa Code section 706.3(1) (2015).
Jazmond appeals that conspiracy conviction.
II. Scope and Standards of Review
We review Jazmond’s challenge to the sufficiency of the evidence for the
correction of legal error. See State v. Hansen, 750 N.W.2d 111, 112 (Iowa
2008). We view the record in the light most favorable to the State, and we make
all legitimate inferences and presumptions that may reasonably be inferred from
the evidence. See State v. Quinn, 691 N.W.2d 403, 407 (Iowa 2005). We will
uphold the district court’s ruling as long as substantial evidence supports it. See
State v. Howse, 875 N.W.2d 684, 688 (Iowa 2016). “Evidence is substantial if it
would convince a rational trier of fact the defendant is guilty beyond a reasonable
doubt.” Hansen, 750 N.W.2d at 112.
III. Substantial-Evidence Analysis
The district court determined the State’s proof met the following elements
of conspiracy to commit a forcible felony: (1) Jazmond agreed with one or more
people that one or more of them would commit a robbery or attempt to commit a
robbery; (2) Jazmond entered the agreement with the intent to promote or
facilitate a robbery, which is a forcible felony; (3) Jazmond or another of the
conspirators committed an overt act “evidencing a design to accomplish the
purpose of the conspiracy by criminal means”; and (4) the others involved in the
conspiracy were not law enforcement agents or assisting law enforcement
agents. See Iowa Code § 706.1.
On appeal, Jazmond attacks the district court’s ruling on three grounds:
(1) the State presented insufficient evidence to corroborate Kendale’s testimony,
(2) the State presented insufficient evidence to prove Jazmond agreed to commit
the forcible felony of robbery as opposed to a basic theft, and (3) it is impossible
to prove conspiracy to commit robbery when the intent is to take contraband. We
will address each of his claims in turn.
Corroboration of Accomplice. There is no question that Kendale was
an accomplice.2 Accordingly, the State could not rely solely on his testimony to
convict Jazmond. See Iowa R. Crim. P. 2.21(3) (providing a person may not be
convicted upon the testimony of an accomplice “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”). Jazmond contends Kendale’s
testimony was the only evidence the State presented concerning the existence of
an agreement among Jazmond, Kendale, and Keenan.
“Corroborative evidence may be direct or circumstantial.” State v. Bugely,
562 N.W.2d 173, 176 (Iowa 1997). And it may be a combination of
circumstances that allows the trier of fact to reach the conclusion the
accomplice’s testimony has been sufficiently corroborated. State v. Nepple, 211
N.W.2d 330, 332 (Iowa 1973). Further, corroborative evidence need not be
strong nor confirm every material fact or element of the crime charged. State v.
Cuevas, 282 N.W.2d 74, 78 (Iowa 1979).
Here, the testimony of Raymond March—identifying Kendale as the driver
and identifying Jazmond and Keenan as the two men who entered his home in
2 “In general, a person is an accomplice if he or she could be charged and convicted of the same offense for which the defendant is on trial.” State v. Barnes, 791 N.W.2d 817, 823 (Iowa 2010).
August 2015 and then fled carrying his son’s shoe boxes—provided sufficient
corroboration for Kendale’s accomplice testimony. Raymond’s testimony
regarding the route Jazmond and Keenan took from his house also confirmed
Kendale’s testimony about the location where the shoes later were retrieved from
a dumpster. See State v. Jennings, 195 N.W.2d 351, 358 (Iowa 1972) (holding
non-accomplices’ testimony that established defendant’s connection to places
where elements of conspiracy occurred was sufficient to corroborate
accomplice’s testimony defendant was involved in the scheme). Raymond’s
testimony, which showed the close association and overt actions of the three
men involved in the robbery scheme, was adequate circumstantial evidence to
corroborate the accomplice testimony regarding Jazmond’s connection to the
conspiracy. Thus, we reject this claim.
Agreement to Commit a Robbery. Jazmond next argues the State’s
evidence was insufficient to prove an agreement to commit a forcible felony. In
his estimation, “[t]he only conclusion that can be reached about the agreement
between the co-defendants, if one occurred, was that they would not pay for the
marijuana—the basic definition of theft not robbery.”
During his testimony, Kendale recalled that when he and his two
companions were formulating the agreement to steal from Ramon, they
“specifically said” they would use “any means necessary” to obtain the marijuana.
Kendale’s exchange with the county attorney on direct examination outlined the
contours of the agreement, as follows:
Q. And what was the agreement between you and Jazmond Turner and Keenan Lewis? A. The agreement just was that we were going to rob him for the marijuana, get it by any means, make
sure we—that they come out with the marijuana however you got to come out with it. Q. And when you say “by any means,” that would include keeping Ramon physically from stopping them from removing the marijuana. . . . A. Yes, if needed. However we got to get it, just make sure you come out with the marijuana.

In the district court, the county attorney argued it did not matter whether
an assault actually occurred at the March residence if the plan was to commit a
theft by any means necessary, including physically stopping the victim from
interfering with the unlawful taking. We find Kendale’s testimony concerning the
explicit terms of their agreement was sufficient to prove Jazmond conspired with
him and Keenan to commit a forcible felony.
A conspiracy is an inchoate offense, for which there can be liability even if
the object crime is not completed. See Inchoate Offense, Black’s Law Dictionary
(10th ed. 2014) (defining as “[a] step toward the commission of another crime,
the step in itself being serious enough to merit punishment”). The agreement
among Jazmond, Keenan, and Kendale was to “rob” Ramon of his marijuana. A
person commits a robbery if he has the intent to commit a theft and commits an
assault upon another “to assist or further the commission of the intended theft or
the person’s escape from the scene thereof with or without the stolen property.”
Iowa Code § 711.1.3 The three companions agreed to commit acts that, if
completed, would have fit the definition of robbery. Even if they had been able to
take the marijuana without assaulting Ramon, reaching the agreement to commit
an assault if necessary was the essence of the conspiracy offense.
3 Both first- and second-degree robbery fall under the definition of forcible felony. Iowa Code § 702.11(1). The aggravated misdemeanor offense of third-degree robbery was not yet in effect at the time of the crime or trial in this case. See id. § 711.3A (effective July 1, 2016).
“[C]onspiracy does not depend on the fulfillment of the agreement, only that there
is an agreement.” State v. Ross, 573 N.W.2d 906, 914 (Iowa 1998). Jazmond is
not entitled to relief on this argument.
Theft of Contraband. Finally, Jazmond advances the novel argument
that Ramon “could not have ownership of the marijuana because it was
contraband per se” and “one cannot commit robbery if the intended theft is of
contraband per se.” Jazmond acknowledges Iowa’s theft statute does use the
term “owner,” but he suggests because contraband cannot be legally possessed,
Ramon had no valid ownership interest. See State v. Ludtke, 446 N.W.2d 797,
800 (Iowa 1989) (discussing forfeiture law).
The State counters that property, for purposes of the theft and robbery
chapters, means “anything of value.” See Iowa Code § 702.14 (defining
property); see also id. ch. 711 (robbery), 714 (theft). While contraband may not
be legally possessed, the State asserts it nevertheless has value and therefore
can be the object of a theft or robbery. We agree contraband may be considered
property when prosecuting criminal offenses such as robbery and theft.4 We
have found no jurisdiction that abides by a different rule. See, e.g., Taylor v.
Phillips, 2016 WL 5678582, at *7 (E.D.N.Y. Sept. 30, 2016) (“New York
precedent indicates that marijuana is considered property for the purpose of
robbery convictions.”); People v. Dillon, 668 P.2d 697, 704 n.5 (Cal. 1983) 4 It is not unusual for our appellate courts to analyze criminal cases where marijuana is the item to be taken in a robbery. See, e.g., State v. Lyle, 854 N.W.2d 378, 380 (Iowa 2014) (addressing constitutionality of sentence for juvenile who committed seconddegree robbery by taking small bag of marijuana); Fryer v. State, 325 N.W.2d 400, 406 (Iowa 1982) (finding sufficient proof of attempted robbery where brothers discussed their plans to take the marijuana by force); State v. Clay, No. 14-0864, 2015 WL 4935606, at *4 (Iowa Ct. App. Aug. 19, 2015) (finding factual basis for guilty plea to robbery where defendant admitted she went into house to steal marijuana).
(“Today the rule is universal that by prohibiting possession of an item, the
government does not license criminals to take it by force or stealth from other
criminals.”); State v. Morant, 701 A.2d 1, 5 (Conn. 1997) (finding defendant could
be convicted of robbery after he took contraband from another person); Say v.
State, 623 N.E.2d 427, 428 (Ind. Ct. App. 1993) (finding marijuana fit within state
statute defining property as “anything of value” because it is “bought and sold
daily and hence has value, although its possession is unlawful”); Woods v. State,
883 So. 2d 583, 588 (Miss. Ct. App. 2004) (holding rule “contraband goods such
as illegal narcotics are declared to be of no value to the possessor such that the
possessor has no property interest in such goods” does not apply for purposes of
robbery statute); State v. Dwyer, 411 N.W.2d 341, 345 (Neb. 1987) (holding
marijuana, though contraband, could be the subject of robbery if shown to have
“any value whatever”); State v. Clementi, 272 N.W. 29, 33 (Wis. 1937) (holding
“chattel kept for an unlawful purpose . . . the possession of which is prohibited,
may be the subject of larceny” (citation omitted)).


< Finding no merit in Jazmond’s challenges to the sufficiency of the evidence, we affirm his conspiracy conviction.

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