IN THE SUPREME COURT OF IOWA
No. 20–0280
Submitted March 31, 2022—Filed May 20, 2022
STATE OF IOWA,
Appellee,
vs.
JORDAN McKIM CRAWFORD,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Jefferson County, Lucy J. Gamon,
Judge.
The defendant challenges the sufficiency of the evidence to support his
convictions for aiding and abetting robbery and ongoing criminal conduct.
DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT
JUDGMENT OF CONVICTION REVERSED, SENTENCE VACATED, AND
REMANDED FOR RESENTENCING.
Oxley, J., delivered the opinion of the court, in which all justices joined. 2
Martha J. Lucey, State Appellate Defender, Maria Ruhtenberg, Assistant
Appellate Defender, and Allison Adams (argued), law student, for appellant.
Thomas J. Miller, Attorney General, and Zachary Miller (argued), Assistant
Attorney General, for appellee. 3
OXLEY, Justice.
Jordan Crawford participated in a three-week crime spree that involved
using a torch to cut into an ATM, robbing a bank, driving to Oregon with the
proceeds to buy marijuana, and then returning to Iowa to sell the drugs. For his
involvement, Crawford was convicted of first-degree robbery and ongoing
criminal conduct, and sentenced to twenty-five years on each. After the court of
appeals affirmed his convictions, we granted further review to determine whether
this crime spree satisfies the requirements for ongoing criminal conduct.
I. Factual Background and Proceedings.
We recite the facts in the light most favorable to the prosecution in
considering Crawford’s challenge to the sufficiency of the evidence to support his
convictions. See State v. Taylor, 689 N.W.2d 116, 131 (Iowa 2004).
Most of the State’s evidence at trial came from the testimony of Ethan
Spray, who participated in the underlying crimes with Crawford and provided
his testimony in exchange for a plea deal. According to Spray, on May 30, 2018,
he and his associates, Ross Thornton and Jordan Crawford, cut into an ATM
using an acetylene torch. It is unclear whether they were successful in recovering
cash from the ATM, but Crawford was not charged related to that incident even
though Spray identified Crawford as the one operating the torch. In any event,
the trio’s alleged crime spree did not stop with the ATM in Brighton. On June 1,
Spray robbed the Pilot Grove Savings Bank in Packwood, Iowa at gunpoint. He
left the bank with approximately $18,000 in cash and jumped into a getaway car
driven by Thornton. 4
Earlier that morning, Thornton drove his pickup truck to Packwood and
parked it a few miles outside of town. The pickup truck driven by Thornton was
registered to Crawford. Phone records obtained in the ensuing investigation
revealed that during the robbery, Thornton communicated with Crawford, who
was waiting at the Ottumwa residence he shared with Thornton. The roommates
exchanged five phone calls during a twenty-two-minute interval surrounding the
commission of the robbery.
Spray testified that Crawford was supposed to provide him with a face
mask or a hat1 and gloves to wear during the robbery. Crawford supplied the
face mask as directed; however, he forgot the gloves, forcing Spray to cover the
distinctive tattoos on his hands with duct tape instead. After the robbery, the
group removed and burned paper bands that were holding the stolen money
together, along with the two-dollar bills they thought could be traced back to the
bank. When asked if Crawford helped, Spray testified, “Barely. He was in and
out of the room.” Spray identified Thornton as the leader of the group who kept
the money from the robbery. Spray testified the three men had an understanding
as to how the money was going to be used, but he never stated what the
understanding was.
Within days of the robbery, the trio continued their crime spree by taking
a trip to the West Coast to purchase marijuana they intended to sell back in
Iowa. Investigators were able to later follow their movements cross-country
1Spray’s testimony never clarified whether Crawford gave him a hat or a face mask. For
brevity, we will refer to the item as a mask. 5
through Spray’s cell phone records. Facebook messages sent from Crawford’s
account show his attempts to purchase marijuana in Oregon. The messages also
show Crawford soliciting numerous Facebook contacts upon returning to Iowa,
advertising that he “just got back from Oregon and got that fire green for the
low”. The Facebook messages took place right after the robbery and continued
until June 15.
When the trio arrived home from their trip out west, law enforcement was
busy investigating the bank robbery. The investigation ultimately led them back
to Spray based on the identification of his vehicle, physical descriptions of him
from witnesses, and surveillance footage matching his appearance. Law
enforcement executed search warrants in August for the homes of Spray,
Thornton, and Crawford, and for Crawford’s vehicle. They found $50,000–
$55,000 of cash at Thornton’s home. Officers found a handwritten note in
Spray’s home that read, “Im Freaking out Feds are onto us!! Do you know how
to look for wire taps and bugs?” The officers found no incriminating evidence at
Crawford’s home but did find $470 in cash, two phones, and a “personal use”
amount of marijuana in Crawford’s vehicle. The $470 was never linked back to
the robbery. Crawford’s employer testified that he had recently paid Crawford
over $1,200, and Crawford argued that the cash in his car was from his
paycheck.
Ultimately, Crawford was charged with aiding and abetting the Packwood
bank robbery in violation of Iowa Code sections 711.1(1) and 711.2, and section
703.1 (2019), a class “B” felony. Although Crawford was not charged with the 6
attempted ATM theft or distribution of marijuana, the prosecutor used those
alleged crimes, along with the Packwood robbery, to file an amended trial
information adding a charge of ongoing criminal conduct in violation of Iowa
Code sections 706A.2(1)(d) and 706A.1(5), also a class “B” felony.
The jury found Crawford guilty on both counts. Crawford appealed,
arguing that the evidence was insufficient to support either conviction. We
transferred the case to the court of appeals. The court of appeals rejected
Crawford’s arguments and affirmed his conviction for both robbery in the first
degree and ongoing criminal conduct. We granted Crawford’s application for
further review.
II. Standard of Review.
We review sufficiency of the evidence claims for correction of errors at law.
State v. Kelso-Christy, 911 N.W.2d 663, 666 (Iowa 2018). When evaluating the
sufficiency of the evidence, we consider “whether, taken in the light most
favorable to the State, the finding of guilt is supported by substantial evidence
in the record.” Id. (quoting State v. Meyers, 799 N.W.2d 132, 138 (Iowa 2011)).
There is substantial evidence if the evidence “would convince a rational fact
finder the defendant is guilty beyond a reasonable doubt.” Id. (quoting Meyers,
799 N.W.2d at 138). We draw all legitimate inferences in support of the verdict.
Taylor, 689 N.W.2d at 131. However, “[e]vidence which merely raises suspicion,
speculation, or conjecture is insufficient.” State v. Casady, 491 N.W.2d 782, 787
(Iowa 1992) (en banc). The evidence must at least raise a fair inference of guilt 7
as to each essential element of the crime. State v. LaPointe, 418 N.W.2d 49, 51
(Iowa 1988).
III. Error Preservation.
At the close of the State’s case, Crawford made a motion for acquittal and
renewed the motion before the case was submitted to the jury. As the State points
out, Crawford’s motion for acquittal did not specifically identify which elements
of the first-degree robbery charge the evidence failed to prove, and he never
mentioned a lack of evidence about his knowledge that a weapon would be used.
Applying our precedent, the court of appeals agreed with the State that Crawford
failed to preserve error on his challenge to the first-degree robbery conviction.
But after the court of appeals decision, we revisited our precedent
concerning what is needed to preserve a challenge to the sufficiency of the
evidence following a trial. See State v. Crawford, 972 N.W.2d 189, 195–202 (Iowa
2022). In State v. Crawford, we held, “A defendant’s trial and the imposition of
sentence following a guilty verdict are sufficient to preserve error with respect to
any challenge to the sufficiency of the evidence raised on direct appeal.” Id. at
202. Therefore, we may review Crawford’s challenge to the sufficiency of the
evidence for both charges in this case, despite any deficiencies in his motion for
acquittal.
IV. Analysis.
We consider two issues on appeal: (1) whether there was sufficient
evidence to convict Crawford of robbery under an aiding and abetting theory and 8
(2) whether there was sufficient evidence to convict Crawford of committing
ongoing criminal conduct.
A. Aiding and Abetting. Sufficient evidence to support a conviction under
a theory of aiding and abetting exists if there is “substantial evidence the accused
assented to or lent countenance and approval to the criminal act by either
actively participating or encouraging it prior to or at the time of its commission.”
State v. Hearn, 797 N.W.2d 577, 580 (Iowa 2011) (quoting State v. Ramirez, 616
N.W.2d 587, 591–92 (Iowa 2000) (en banc), overruled on other grounds by State
v. Reeves, 636 N.W.2d 22, 25–26 (Iowa 2001)). Knowledge of the crime is
essential; “however, neither knowledge nor presence at the scene of the crime is
sufficient to prove aiding and abetting.” State v. Barnes, 204 N.W.2d 827, 828
(Iowa 1972). “Aiding and abetting may be proven by direct or circumstantial
evidence. Direct and circumstantial evidence are equally probative.” State v.
Huser, 894 N.W.2d 472, 491 (Iowa 2017) (citation omitted).
The jury was instructed on both first- and second-degree robbery, and it
found Crawford guilty of robbery in the first degree. Crawford challenges the
evidence to support a conviction for any robbery. We start with first-degree
robbery.
1. First-degree robbery. A person who “purposely inflicts or attempts to
inflict serious injury, or is armed with a dangerous weapon” during a robbery
commits first-degree robbery; all other robberies are second-degree robbery. Iowa
Code §§ 711.2–.3. The jury instructions required the State to prove the following
elements of first-degree robbery: 9
1. On or about the 1st day of June, 2018, the defendant had the specific intent to commit a theft, either as principal or as aider and abettor.
2. To carry out his intention or to assist another to commit the theft or to escape from the scene, with or without the stolen property, the defendant aided and abetted another in the robbery of the Pilot Grove Savings Bank, during which time Darrell Hoehne was threatened with, or purposefully placed in immediate fear of serious injury.
3. The defendant aided and abetted another who was armed with a dangerous weapon.
“[I]n the context of a first-degree robbery prosecution under the dangerous
weapon alternative, the State must prove the alleged aider and abettor had
knowledge that a dangerous weapon would be or was being used.” State v.
Henderson, 908 N.W.2d 868, 876 (Iowa 2018). “Otherwise, the aider and abettor
may have knowledge or intent to commit a robbery, but not first-degree robbery.”
Id.
Crawford argues the State failed to produce evidence showing he knew
Spray would be armed when he committed the robbery. To this point, Spray
testified that Crawford had nothing to do with the gun. The State produced no
other evidence concerning Crawford’s knowledge about Spray’s use of a weapon.
The State concedes that the record lacked evidence tending to prove Crawford
knew Spray would use a gun, resisting Crawford’s appeal of his conviction for
first-degree robbery only on preservation grounds. Crawford resolved any
potential error preservation issues, and we reject the State’s argument. See 972
N.W.2d 189 at 202. We set aside Crawford’s conviction on the first-degree
robbery charge because the State failed to offer any evidence to satisfy the 10
dangerous weapon element of first-degree robbery. See Henderson, 908 N.W.2d
at 876.
2. Second-degree robbery. Even though the jury did not return a guilty
verdict for second-degree robbery, having found Crawford guilty of first-degree
robbery, the jury was instructed that if it found the first two elements, but not
the dangerous weapon element, it should find Crawford guilty of the lesser
included offense of second-degree robbery.
Crawford argues that the State failed to offer sufficient evidence that he
possessed the specific intent to commit the robbery, the second element listed in
the jury instructions. Specifically, Crawford argues that the State failed to prove
that he provided Spray with the mask with the specific intent it would be used
in the robbery. The State counters that supplying the mask, coupled with phone
records showing his contemporaneous communications with Thornton who was
driving Crawford’s truck, allowed the jury to infer Crawford’s intent to assist in
completing the crime. Intent can seldom be proved by direct evidence. See State
v. Olson, 373 N.W.2d 135, 136 (Iowa 1985). Consequently, proof of intent usually
arises from circumstantial evidence and inferences reasonably drawn from the
circumstances. See id.
Aiding and abetting means to “assent[] to or len[d] countenance and
approval to the criminal act by either actively participating or encouraging it
prior to or at the time of its commission.” Ramirez, 616 N.W.2d at 591–92. The
most incriminating evidence offered by the State was the direct testimony by
Spray as to Crawford’s involvement in the plan to commit, and subsequently 11
conceal, the Packwood bank robbery. But a conviction cannot be based solely on
the testimony of an accomplice; it must be corroborated by other evidence that
demonstrates a connection between the defendant and the commission of the
crime. See Iowa R. Crim. P. 2.21(3). “Corroborative evidence need not be strong
as long as it can fairly be said that it tends to connect the accused with the
commission of the crime and supports the credibility of the accomplice.” State v.
Barnes, 791 N.W.2d 817, 824 (Iowa 2010) (quoting State v. Berney, 378 N.W.2d
915, 918 (Iowa 1985), overruled on other grounds by State v. Bruce, 795 N.W.2d
1 (Iowa 2011)). Phone records offered by the State showed Crawford called
Thornton, who drove Crawford’s truck to commit the crime, five times
immediately before and after the robbery. These independent records sufficiently
corroborate Spray’s testimony about Crawford’s involvement in the crime.
The State also points to evidence of Crawford’s conduct after the robbery,
which allowed the jury to infer his participation in the scheme and establish
intent. Evidence of a defendant’s “ ‘presence, companionship, and conduct before
and after the offense is committed’ may be enough from which to infer a
defendant’s participation in the crime.” State v. Lewis, 514 N.W.2d 63, 66 (Iowa
1994) (quoting State v. Miles, 346 N.W.2d 517, 520 (Iowa 1984)). Crawford helped
burn the money bands after Spray and Thornton returned to the house Crawford
shared with Thornton, which provides additional evidence to support a
reasonable inference he intended to participate in the robbery.
The evidence against Crawford is similar to what we have found sufficient
in other cases to support an aiding and abetting robbery conviction. In State v. 12
Hearn, we upheld a conviction for aiding and abetting second-degree robbery
based on evidence that the defendant was with his brother and cousin shortly
before a carjacking, the defendant admitted to police he knew the people in the
stolen car after it crashed, and he drove another car in an attempt to help the
carjackers escape, at one point swerving at a police car. 797 N.W.2d at 580–81.
Evidence of the defendant’s actions before and after the carjacking provided
substantial evidence to support the verdict by allowing the jury to infer the
defendant’s involvement. Id. We reached a similar conclusion in State v.
Jefferson, 574 N.W.2d 268, 277 (Iowa 1997). In that case, evidence that the
defendant drove to a convenience store with the gunman, parked in an
inconvenient location behind the store, failed to intervene or protest when the
gunman demanded money and forced the clerk into the back of the store, and
then left with the gunman provided circumstantial evidence to support the jury’s
rejection of the defendant’s testimony that he thought they were just stopping
for directions. Id. Here, the State presented evidence comparable to that found
sufficient to establish aiding and abetting second-degree robbery in Hearn and
Jefferson.
We reverse Crawford’s conviction for robbery in the first degree and
remand for the district court to enter judgment and sentence on the lesser
included offense of robbery in the second degree. See Henderson, 908 N.W.2d at
878–79; State v. Ortiz, 905 N.W.2d 174, 182–83 (Iowa 2017) (remanding to the
district court to enter judgment and resentence on the lesser included offense of
third-degree robbery when there was sufficient evidence to support a finding of 13
third-degree robbery but insufficient evidence to support second-degree
robbery).
B. Ongoing Criminal Conduct. Crawford was also convicted of violating
Iowa Code section 706A.2(1), the criminal enterprise prong of Iowa’s ongoing
criminal conduct statute. As relevant to Crawford’s conviction, it is unlawful for
a person to: (1) knowingly conduct or participate in the affairs of an enterprise
(2) through “specified unlawful activity” (3) on a continuing basis. Id. §
706A.2(1)(c). The State’s theory at trial was that Crawford, Spray, and Thornton
engaged in an enterprise to steal money from the ATM in Brighton and the Pilot
Grove Savings Bank in Packwood and use the stolen money to finance a drug
operation by purchasing marijuana in Oregon and reselling it in Iowa. Crawford
does not dispute that his involvement with Spray and Thornton could comprise
an enterprise, so we focus on the other two elements of the offense.
To place Crawford’s conviction in context, we note that Iowa’s ongoing
criminal conduct statute was “patterned after the Model Ongoing Criminal
Conduct Act, which was part of the Report of the President’s Commission on
Model State Drug Laws in 1993.” State v. Olsen, 618 N.W.2d 346, 348 & n.1
(Iowa 2000) (en banc) (noting Iowa as the only state to have enacted an ongoing
criminal conduct statute). The goal of the model act was to “defend legitimate
commerce from organized criminal activity and remedy the economic effects of
crime.” Id. Likewise, “the paramount purpose of Iowa’s ongoing criminal conduct
statute is, like the model act, to combat criminal networks and enterprises.” Id.
at 350 (“This is evident from the overall framework of the statute.”). 14
The statute is built around the phrase “specified unlawful activity.” But
where the model act limits that definition “to racketeering offenses or offenses
that represent the key components of ongoing criminal networks,” the Iowa
statute broadly applies the phrase to “any indictable offense, limited only to those
offenses ‘committed for financial gain on a continuing basis.’ ” Id. (quoting Iowa
Code § 706A.1(5)). The continuing basis requirement serves to limit the statute’s
reach to a course of organized or planned ongoing illegal activity as opposed to
merely isolated criminal acts. See State v. Reed, 618 N.W.2d 327, 334–35 (Iowa
2000) (en banc). A conviction is a class “B” felony, subjecting a defendant to a
twenty-five-year prison term that can be run consecutive to convictions for the
underlying predicate offenses. See Iowa Code § 706A.4; id. § 902.9(1)(b); see also
Anna T. Stoeffler, Note, Iowa’s State RICO Statute: Wreaking Havoc on Iowa’s
Criminal Justice System, 102 Iowa L. Rev. 825, 833 (2017) (discussing the
breadth of activity covered by the Iowa ongoing criminal conduct statute relative
to other state RICO statutes and cautioning that “a conviction under the IOCCA
adds substantial time to the sentence for a defendant’s predicate offense”).
Crawford argues that the State failed to produce substantial evidence that
he participated in “specified unlawful activity” as defined by the statute or that
the illegal activities met the “continuing basis” requirement. These are distinct
terms with specialized meanings.
Crawford first challenges the State’s evidence to support the “specified
unlawful activities” element of an ongoing criminal conduct charge. The State
relied on the following activities: (1) the theft of money from the Brighton ATM; 15
(2) the robbery of the Pilot Grove Savings Bank in Packwood; and (3) the
distribution, either attempted or completed, of marijuana. Crawford argues that
Jury Instruction No. 27, which defined “specified unlawful activity,” required the
activity to be an “indictable offense” and attempted distribution of marijuana is
not an indictable offense in any state. The State counters with Jury Instruction
No. 25, which expressly identified the “specified unlawful activities” the jury
could rely on: “to wit: a) the theft of money from the Brighton, Iowa ATM; and/or
b) the robbery of the Pilot Grove Savings in Packwood, Iowa Bank; and/or c) the
distribution, either attempted or completed, of marijuana.” And since Crawford
did not object to the instruction, the State argues he cannot now complain that
attempted distribution does not satisfy the specified unlawful activity element of
his conviction. See State v. Canal, 773 N.W.2d 528, 530 (Iowa 2009) (explaining
that when a defendant does not “object to the instructions given to the jury at
trial . . . the jury instructions become the law of the case for purposes of our
review of the record for sufficiency of the evidence”).
The parties correctly point out the contradictions between the two jury
instructions, so looking just to the instructions as the State argues does not
simplify the analysis. In the end, we do not need to reconcile these
inconsistencies in light of our conclusion that there was insufficient evidence to
meet the separate continuing basis requirement for Crawford’s ongoing criminal
conduct conviction. We turn to that element instead.
Crawford argues the State failed to show that the specified unlawful
activity was conducted on a “continuing basis.” The State again argues that we 16
are limited to the jury instructions, which do not otherwise define the term
“continuing basis,” because Crawford did not offer an instruction that explained
the legal requirements for a continuing basis. The problem with the State’s
argument is that it cannot point to an incorrect statement of the law in the jury
instructions with respect to the continuing basis requirement to which Crawford
was required to object. Our law of the case doctrine is premised on the failure to
object to an incorrect statement of the law. See, e.g., State v. Harris, 891 N.W.2d
182, 188 (Iowa 2017) (holding that counsel’s failure to object to jury instruction
that omitted “going” element of offense of “going armed with intent” constituted
ineffective assistance); State v. Hopkins, 576 N.W.2d 374, 378–80 (Iowa 1998)
(counsel was ineffective for failing to object to an instruction that was not “a
correct statement of the law”). If a party fails to alert the district court of the
erroneous instructions, he cannot complain that the evidence was insufficient to
support a legal proposition contrary to the one instructed to the jury. When that
happens, we apply the law as set out in the instructions rather than the
applicable law. See, e.g., Canal, 773 N.W.2d at 530 (“[The defendant] did not
object to the instructions given to the jury at trial. Therefore, the jury
instructions become the law of the case for purposes of our review of the record
for sufficiency of the evidence.”).
But failing to fully define a term is a different matter. The State does not
dispute that Jury Instruction No. 25 and Jury Instruction No. 27 both required
the jury to find that the underlying acts were committed on a continuing basis,
a required element of the offense. The failure of the instructions to further 17
elucidate what that term means does not prevent us from applying the correct
law. See, e.g., State v. Banes, 910 N.W.2d 634, 639–41 (Iowa Ct. App. 2018)
(addressing whether evidence was sufficient to support finding of continuing
basis as described in State v. Reed although the term was not further defined).
In State v. Reed, we considered what it means for specified unlawful
activities to be committed on a continuing basis under Iowa Code chapter 706A,
which does not define the phrase. 618 N.W.2d at 334. Given the similarities
between the underlying purposes of chapter 706A and the Federal Racketeer
Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1962(c), we
adopted the United States Supreme Court’s interpretation of “a pattern of
racketeering activity” as a reasonable interpretation of “continuing basis” for
purposes of chapter 706A. See Reed, 618 N.W.2d at 334–35 (discussing H.J. Inc.
v. Nw. Bell Tel. Co., 492 U.S. 229, 241–42 (1989)). As a general matter,
continuing basis means that there must be a sufficient series of related predicate
acts over a significant period of time or, alternatively, “conduct that by its nature
projects into the future with a threat of repetition.” Id. (quoting Midwest Heritage
Bank, FSB v. Northway, 576 N.W.2d 588, 591 (Iowa 1998)).
“ ‘[C]ontinuing basis’ in section 706A.1(5) requires proof of a course of
criminal activity as opposed to an isolated or one-time act.” Id. at 334. To be
considered part of an enterprise conducted on a continuing basis, the predicate
acts must be related in some way and have an element of continuity. Id. (“It is
this factor of continuity plus relationship which combines to produce a
‘pattern.’ ” (quoting Midwest Heritage Bank, 576 N.W.2d at 591)). The 18
relationship element “can be shown if the predicate acts ‘have the same or similar
purposes, results, participants, victims, or methods of commission or otherwise
are interrelated by distinguishing characteristics and are not isolated events.’ ”
Id. (quoting Midwest Heritage Bank, 576 N.W.2d at 591). Crawford does not
argue that the State failed to show a relationship between the predicate acts of
robbing banks and using the stolen funds to fund a drug distribution operation,
so our analysis is focused on the continuity element.
Requiring continuity helps distinguish between isolated events and a plan
of continuing illegal activity. The focus of the statute is the ongoing nature of
planned illegal conduct. Continuity can be shown by either an “open-ended” or
“closed-ended” concept. Id. at 334–35. Continuity refers “either to a closed period
of repeated conduct, or to past conduct that by its nature projects into the future
with a threat of repetition. It is, in either case, centrally a temporal concept.” Id.
(quoting Midwest Heritage Bank, 576 N.W.2d at 591). Crawford argues the
evidence was insufficient to show continuity based on either concept.
1. Closed-ended continuity. The point of requiring a continuing basis is to
show the ongoing nature of the criminal conduct. Illegal activities don’t have to
go on forever to meet the continuing basis requirement. At the same time,
committing a few illegal activities over a short period of time does not indicate
an intent to commit illegal activities on a continuing basis. To avoid sweeping in
multiple, but isolated acts, a closed period of repeated conduct must occur over
a substantial time period before it establishes the activities were committed on
a continuing basis. See id. at 334. 19
The State argues that the attempted ATM theft, the bank robbery, and
attempts to buy and sell marijuana satisfy the closed-ended concept. The jury
instructions identified the time period as May 29, 2018, to June 15, 2018, less
than three weeks. In Reed, we recognized that without a threat of future criminal
conduct, predicate acts extending over a few weeks or months are insufficient
for establishing continuity. Id. at 335. That is because the ongoing criminal
conduct statute, like RICO, is concerned with “long-term criminal conduct.” Id.
(quoting Midwest Heritage Bank, 576 N.W.2d at 591).
This conclusion is supported by federal cases considering the length of
time necessary to satisfy a closed-ended concept of continuity for purposes of
RICO. See, e.g., Wisdom v. First Midwest Bank, of Poplar Bluff, 167 F.3d 402, 407
(8th Cir. 1999) (holding six-month period too short to satisfy the closed-ended
analysis of the continuity requirement); Primary Care Invs., Seven, Inc. v. PHP
Healthcare Corp., 986 F.2d 1208, 1215–16 (8th Cir. 1993) (holding eleven
months insufficient to satisfy the closed-ended continuity requirement and
noting that other federal circuit courts consistently hold that schemes less than
one year are too short). It is also consistent with the length of time this court and
the court of appeals have considered sufficient to satisfy the continuing basis
requirement of an ongoing criminal conduct charge. Compare Olsen, 618 N.W.2d
at 347 (a scheme to defraud an elderly couple out of $200,000 through a home
repair scam over a period of nineteen months supported ongoing criminal
conduct conviction), State v. Schindler, No. 19–0138, 2020 WL 2487607, at *2–3
(Iowa Ct. App. May 13, 2020) (twenty-four thefts over three years satisfied closed 20
period of continuity), State v. Wulf, No. 18–0398, 2019 WL 720469, at *4 (Iowa
Ct. App. Feb. 20, 2019) (multiple acts of theft over the course of a year showed
continuity over closed period of repeated conduct), and State v. Frey, No. 05–
0287, 2006 WL 2872492, at *2 (Iowa Ct. App. Oct. 11, 2006) (multiple predicate
acts over a period of almost three years satisfied closed period of continuity),
with Reed, 618 N.W.2d at 333–34 (three drug sales in two months failed to
establish closed-ended continuity), State v. Goodwin, No. 18–1822, 2020 WL
1551149, at *5–7 (Iowa Ct. App. Apr. 1, 2020) (five robberies over three days did
not satisfy continuity requirement), Banes, 910 N.W.2d at 640–41 (three
commercial burglaries over the span of one month insufficient to meet continuity
requirement), and State v. Agee, No. 02–0967, 2003 WL 22087479, at *2 (Iowa
Ct. App. Sept. 10, 2003) (five counts of forgery over eight days did not satisfy
continuity requirement).
The three-week period between the attempt to cut into the Brighton ATM
and the last Facebook post about selling marijuana clearly does not satisfy the
substantial time period required by Reed. 618 N.W.2d at 334–35. Therefore, the
evidence is insufficient to establish the continuing basis element of ongoing
criminal conduct under the closed-ended concept.
2. Open-ended continuity. “[A] continuing basis may be found, even where
predicate acts occur over a short period of time, if there is a demonstrated
relationship between the predicate acts and a threat of continuing criminal
activity.” Banes, 910 N.W.2d at 640–41 (alteration in original) (quoting Agee,
2003 WL 22087479, at *2). This is referred to as the open-ended theory of 21
continuity. An open-ended time period is demonstrated by “past conduct that by
its nature projects into the future with a threat of repetition.” Reed, 618 N.W.2d
at 334 (quoting Midwest Heritage Bank, 576 N.W.2d at 591). Under an open-
ended theory, “liability depends on whether the threat of continuity is
demonstrated.” Id. at 335 (emphasis omitted) (quoting Midwest Heritage Bank,
576 N.W.2d at 591). This requires “a realistic prospect of continuity over an
open-ended period yet to come.” Home Orthopedics Corp. v. Rodríguez, 781 F.3d
521, 531 (1st Cir. 2015) (quoting Feinstein v. Resol. Tr. Corp., 942 F.2d 34, 45
(1st Cir. 1991)) (discussing open-ended continuity under RICO).
There are two general scenarios where the continuity requirement is
satisfied through open-ended conduct. One arises where there is evidence that
the illegal activity would have continued for a sufficient time to meet the closed-
ended time period but the defendant’s conduct was cut short, generally by an
arrest or other law enforcement intervention. The other is where the nature of
the illegal activity itself reveals an intent for the illegal activities to continue.
Reed provides an example of the first scenario. Reed committed “at least
three completed offenses of dealing drugs over a two-month period,” but his drug
dealing ended when he was arrested. 618 N.W.2d at 335. The two-month period
was too short to support closed-ended continuity, so we considered the nature
of Reed’s illegal activity to determine whether there was evidence that, had Reed
not been arrested, he would have continued his illegal drug trade. Id. at 334–35.
We concluded that evidence of a dealer quantity of drugs seized from the
defendant along with evidence that he made monthly payments to store his drug 22
stash at someone else’s house were sufficient to show that Reed intended to
continue dealing drugs if not caught. Id.
State v. Banes provides a proper contrast to Reed. In Banes, the defendant
was convicted of burglary, theft, and criminal mischief after he and a friend broke
into two different businesses in Lee County on Christmas Day and a third
business a few days later. 910 N.W.2d at 637–39. They stole tools, guns, clothes,
jewelry, and electronic equipment and then sold some of the stolen items to a
third party. Id. at 637–38. A week later, one of the business owners, who
suspected Banes was involved, saw him driving in Keokuk and chased him,
calling the police along the way. Id. at 638. The police found Banes’s jeep
abandoned at his grandfather’s house with some of the stolen items inside. Id.
In overturning Banes’s separate conviction for ongoing criminal conduct, the
court of appeals recognized that committing several commercial burglaries over
a period of a few days could not satisfy the requirement for evidence of a
continued threat of future criminal conduct. Id. at 641. Nor was that requirement
satisfied by the fact that the defendant was unemployed. Id. Whereas being
unemployed does not itself indicate a defendant intends to continue to support
himself through illegal activity, id., paying someone on a monthly basis to stash
drugs does indicate the defendant intends to continue selling drugs, Reed, 618
N.W.2d at 334–35.
Evidence that an otherwise unemployed defendant makes a living through
criminal activity might provide evidence to support a threat of continuing
activity, but being unemployed in and of itself does not. Banes, 910 N.W.2d at 23
641. We think the same is true for selling drugs. That a defendant engages in
more than one drug sale does not, in and of itself, establish the evidence needed
to support a finding of a threat of continuing illegal conduct into the future. If it
was, the three sales of drugs in Reed would have been enough to support the
ongoing criminal conduct conviction and we would not have needed to rely on
the monthly payments for a stash house to establish a continued threat of future
criminal conduct. The statute criminalizes an intentional scheme of ongoing
criminal conduct, not merely a series of isolated criminal acts that may or may
not continue into the future. See Reed, 618 N.W.2d at 334–35 (noting the statute
does not cover isolated criminal activity).
Here, the State relies on evidence that Crawford communicated with a
number of people through Facebook to make multiple marijuana sales, arguing
this reveals an ongoing drug-dealing operation. But Reed makes clear that
multiple drug sales over a short period of time are insufficient without additional
evidence to support a threat of continuing illegal activity. The State’s evidence of
drug sales through Facebook only shows activity through June 15; there is no
evidence that sales continued beyond that point.
The State relies on evidence that Spray and Thornton feared the police
were on to them based on a note found in Spray’s house during execution of the
August search warrant to argue that the illegal activity was cut short by law
enforcement. We reject this argument for two reasons. First, as in Reed, there
must still be evidence beyond the prior short-lived drug sales to support a finding
of a threat of continuing illegal activity, even when there is an explanation for an 24
end to the illegal activity. The State’s case is lacking that additional piece of
evidence we found crucial in Reed.
Second, the note was not found until August, at least six weeks after the
last evidence of any drug sales, and Crawford was not arrested until nearly a
year later. Yet, the State presented no evidence that he continued any illegal
activities during the interim—before or after execution of the August search
warrants through the time of his arrest. Instead, the evidence revealed he was
gainfully employed and possessed only a user quantity of marijuana. While
courts have excused the lack of continuing illegal activity when it is stopped by
law enforcement, the rationale of those cases does not extend to the facts here.
The defendant in Reed was arrested just one day after selling drugs to a
confidential informant, his third predicate offense, but the evidence of renting a
stash house revealed he would have continued selling but for the arrest. 618
N.W.2d at 330, 335; see also United States v. Torres, 191 F.3d 799, 807–08 (7th
Cir. 1999) (four acts of kidnapping over a short period of time as efforts to collect
drug debts supported RICO charges as part of a larger plan that was halted only
upon the participants’ arrests). Here, we have the opposite. Investigators found
over $50,000 in cash at Thornton’s house but never found dealer quantities of
marijuana. It is just as likely that the three had sold all of the drugs they bought
in Oregon, ending their crime spree. That the co-conspirators may have laid low
to avoid arrest cannot be used to excuse the lack of any evidence of ongoing
illegal activity. 25
While the nature of the illegal activity itself can reveal an intent for the
illegal activities to continue, this is not such a case. The Supreme Court has
found the necessary threat of continuity when the illegal “acts themselves
include a specific threat of repetition extending indefinitely into the future.” H.J.
Inc., 492 U.S. at 242–43 (giving as an example a neighborhood hoodlum who
offers to provide “insurance” against vandalism to area businesses in exchange
for a “premium”). Relatedly, “the threat of continuity may be established by
showing that the predicate acts or offenses are part of an ongoing entity’s regular
way of doing business.” Id. at 242. We do not have that here. See, e.g., United
States v. Browne, 505 F.3d 1229, 1263 (11th Cir. 2007) (holding evidence
sufficiently satisfied the threat prong of open-ended continuity because the
predicate acts of fraud were part of the defendant’s “regular way of doing
business”); United States v. Simmons, 923 F.2d 934, 950–52 (2d Cir. 1991)
(holding that evidence indicating the murders were intended to maintain
discipline in a narcotics operation was sufficient to show the acts threatened
repetition by their nature). Spray testified that at the time the trio was
committing their alleged crime spree, he was using $100 of methamphetamines
a day. He even admitted to smoking methamphetamines just two hours before
the bank robbery. These facts are more indicative of a drug-induced crime frenzy
than a regimented criminal operation that displayed no signs of stopping.
At most, the State proved a plan to steal from an ATM and rob a bank, use
the proceeds to purchase drugs out west, and then resell them in Iowa, a plan
that was carried out over a period of three weeks. But there is no evidence the 26
coconspirators had a plan to continue that pattern once the initial drugs ran
out. See, e.g., Banes, 910 N.W.2d at 641 (“Both Vawter and Banes testified at
trial, and neither testified regarding any plan for future conduct.”). Without
evidence of a plan to continue the illegal conduct beyond the last attempted June
15 marijuana sale, the State presented insufficient evidence to establish the
continuing basis element of the ongoing criminal conduct charge. Crawford’s
conviction for ongoing criminal conduct cannot stand.
V. Disposition.
We vacate Crawford’s conviction and sentence for ongoing criminal
conduct. We also vacate Crawford’s conviction for robbery in the first degree and
remand for entry of judgment and sentencing for robbery in the second degree.