IN THE COURT OF APPEALS OF IOWA
No. 16-1366 Filed December 6, 2017
STATE OF IOWA, Plaintiff-Appellee,
vs.
MATTHEW SHAWN VICTOR BRIDGES, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Jasper County, Terry R. Rickers,
Judge.
A defendant challenges his conviction for robbery in the first degree, as well
as his convictions for two counts of using a juvenile to commit robbery.
JUDGEMENT AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
FOR NEW TRIAL AND RESENTENCING.
Mark C. Smith, State Appellate Defender, and Melinda J. Nye, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant Attorney
General, for appellee.
Heard by Vogel, P.J., and Tabor and Bower, JJ. 2
TABOR, Judge.
Police determined that twenty-four-year-old Matthew Bridges enlisted two
friends, both under eighteen years of age, to help rob a convenience store. The
State charged Bridges with aiding and abetting robbery in the first degree and two
counts of using a juvenile to commit robbery. A jury convicted Bridges of all three
crimes.
On appeal, Bridges first seeks dismissal of all three convictions on the basis
of insufficient evidence. Because we find substantial evidence to corroborate the
accomplice testimony, we affirm on that ground. Alternatively, Bridges seeks a
new trial on the first-degree robbery count, alleging his attorney should have
objected to jury instructions outlining the elements of conspiracy when the State
had not charged Bridges with conspiracy under Iowa Code section 706.1 (2015).
Because those jury instructions—combined with a flawed trial information and the
prosecutor’s closing argument—allowed the jury to consider a form of vicarious
liability not charged, we find a breach of duty and resulting prejudice. Accordingly,
we reverse and remand for a new trial on the robbery conviction. We reject
Bridges’s remaining grounds for reversal, and affirm his convictions on the two
counts of using a minor to commit robbery.
I. Facts1 and Prior Proceedings
In November 2015, Bridges was forced to leave his father’s home in Eldora
because a no-contact order prohibited him from interacting with his brother, who
also lived there. When Bridges moved out both his girlfriend, T.H., then seventeen
1 A reasonable jury could have found the following facts based on T.H.’s trial testimony. 3
years old, and his friend, G.C., then sixteen years old, left with him. The three
checked into the AmericInn in Iowa Falls. After a couple nights at that hotel, they
ran out of money, and Bridges’s father paid for one night’s stay at the Super 8.
After their funds were depleted, Bridges concocted a plan to rob a
convenience store and suggested G.C. act as the gunman. According to T.H.,
Bridges provided G.C. with a ski mask and BB gun. But G.C. expressed concern
about getting into a shootout and preferred to have more imposing weaponry
before moving forward. So they drove back to Eldora to get “a real gun” from the
home of Bridge’s father. Bridges sent G.C. into the house, telling him where to
find the weapon.
Bridges next instructed T.H. to drive to State Center where he pointed out
the Casey’s General Store for G.C. to rob. T.H. recalled that G.C. objected to the
location as having too much “open space,” fearing he would be easily caught. So
Bridges diverted the operation to Newton, where he had previously lived. In fact,
Bridges had rented an apartment behind the Casey’s General Store and was
familiar with that Newton neighborhood. Bridges assured G.C. the new location
would be easier to rob.
As part of the planning, Bridges walked with his two associates down a
neighborhood bike path where he advised G.C. to “ditch” the gun and apparel after
the robbery. T.H. testified Bridges assigned her to be the lookout because G.C.
“didn’t want to go in if there was customers” in the store. Back at the convenience
store parking lot, T.H. gave the all-clear signal to Bridges and G.C. once the area
was deserted. T.H. and Bridges then walked around the front of the building and 4
across the street to the Newton 66, another convenience store, while G.C. robbed
the Casey’s.2
After the threesome reunited, Bridges directed them to a friend’s apartment
where they divided up piles of crumbled bills between Bridges and G.C. They left
once word of the robbery spread. According to T.H., Bridges eventually collected
the cash and hid it along a gravel road. Later, Bridges and T.H. retrieved the
money and spent it on restaurant meals, marijuana, clothing, and various other
expenses.
Police arrested Bridges on November 6, two days after the Casey’s robbery.
A detective interviewed Bridges after his arrest and suggested several times during
the recorded interview that Bridges was lying.3 The State charged Bridges with
robbery in the first degree, a class “B” felony, in violation of Iowa Code sections
711.1(a) and 711.2. The trial information alleged Bridges “either directly
committed, or aided and abetted in the commission of, or conspired with or entered
into a common scheme or design with one or more others to unlawfully commit a
robbery against Casey’s General Store.” The State also charged Bridges with two
counts of using a juvenile to commit certain offenses, class “C” felonies, in violation
of Iowa Code section 709A.6.
Facing her own robbery charge and hoping to work out a plea deal, T.C.
testified for the State at the jury trial, describing Bridges as the driving force behind
the robbery. Bridges also testified, claiming ignorance of G.C.’s plan to rob the
2 The State offered security camera video footage from the Newton 66 showing Bridges and T.H. walking in front of the Casey’s and G.C. entering the store before it was robbed. 3 The State played an audio-recording of the interrogation at trial over Bridges’s objection. 5
Casey’s and attributing the cash haul to his marijuana dealing. The jury convicted
Bridges on all three counts.
The district court sentenced Bridges to concurrent indeterminate ten-year
terms on the class “C” felonies and ran those consecutively with the twenty-five-
year term for robbery. Bridges now appeals his convictions and sentences.
II. Scope and Standards of Review
We employ varied standards of review to address the claims raised by
Bridges on appeal. We review for errors at law Bridges’s challenge to the
sufficiency of the evidence corroborating accomplice testimony and the district
court’s refusal to submit a requested lesser-included-offense jury instruction. See
Herbst v. State, 616 N.W.2d 582, 585 (Iowa 2000); State v. Bugley, 562 N.W.2d
173, 176 (Iowa 1997). We also review sentencing challenges for legal error;
sentences within the statutory limits will only be set aside for an abuse of discretion.
State v. Thomas, 547 N.W.2d 223, 225 (Iowa 1996).
We review de novo Bridges’s claims of ineffective assistance of counsel.
See State v. Ondayog, 722 N.W.2d 778, 783 (Iowa 2006). And we look for an
abuse of discretion when evaluating his evidentiary challenge to the admissibility
of an audio recording of a police interview. See State v. Harrington, 800 N.W.2d
46, 48 (Iowa 2011). Although to the extent the evidence claim is based on the
hearsay rules, we review for the correction of errors at law. See State v. Plain,
898 N.W.2d 801, 810 (Iowa 2017). 6
III. Analysis
A. Evidence Corroborating T.H.’s Accomplice Testimony
Bridges alleges the State offered insufficient evidence to corroborate T.H.’s
testimony connecting him to the armed robbery. 4 He contends he was effectively
convicted based on her word alone.
The State must corroborate accomplice testimony “by other evidence which
shall tend to connect the defendant with the commission of the offense.” See Iowa
R. Crim. P. 2.21(3). “[T]he corroboration is not sufficient if it merely shows the
commission of the offense or the circumstances thereof.” Id. We view
corroborating evidence in the light most favorable to the State, including every
legitimate inference that may be deduced. See Bugely, 562 N.W.2d at 176. “[T]he
corroboration of an accomplice’s testimony need not be strong, nor must it confirm
every material fact testified to by the accomplice. It need only tend to connect an
accused with the commission of a given crime.” State v. King, 256 N.W.2d 1, 10
(Iowa 1977). Corroborating evidence may be direct or circumstantial. State v.
Brown, 397 N.W.2d 689, 695 (Iowa 1986). But corroborative evidence must do
more than “merely raise a suspicion the accused is the guilty party.” State v.
Gillespie, 503 N.W.2d 612, 617 (Iowa Ct. App. 1993).
Bridges discounts two potential sources of corroboration—the testimony of
his brother, Zakk, concerning the gun taken from their father’s house and used in
the robbery and security camera footage showing Bridges outside the Casey’s
moments before the robbery.
4 The State does not contest T.H.’s status as an accomplice. 7
Zakk testified his brother expressed a desire to pick up the gun and later
disclosed he had “already grabbed it” and was headed to Newton. Police
discovered the gun south of the Casey’s following the robbery. According to
Bridges, his brother’s testimony was inadequate corroboration because Zakk
disliked him and was good friends with T.H. But it was for the jury to weigh the
witness’s motivation for testifying when considering the value of the corroborating
evidence. See Bugely, 562 N.W.2d at 176 (noting sufficiency of corroborating
evidence is question for the jury not the court).
Bridges also argues the security footage does not corroborate his
participation in the crimes because he does not deny being in the vicinity. But the
footage shows more than Bridges’s presence outside the Casey’s; it reveals
conduct that T.H. described as reconnaissance. The jury could see Bridges and
T.H. circling the building, T.H. peering around the corner waiting for possible
witnesses to leave, and the pair reappearing after the area is clear, followed closely
by G.C., who enters Casey’s and robs it at gunpoint. The jury was entitled to
interpret the footage and decide if Bridges’s conduct was consistent with a clueless
bystander, as he claims, or an active participant, as T.H. claims.
Even setting aside the corroboration provided by Zakk and the security
footage, the State offered other evidence to bolster T.H.’s testimony. T.H. testified
that before the robbery, the threesome walked a nearby bike trail and Bridges told
G.C. to “ditch” his clothes along the trail after the robbery. An officer testified to
finding sweatpants and a sweatshirt along the trail shortly after the robbery. The
State also introduced several photos of the bike trail, strewn with clothing
consistent with that worn by G.C. during the robbery. 8
The State also presented evidence to corroborate Bridges’s financial motive
for planning the robbery. T.H. testified Bridges was broke. His father testified he
gave Bridges money for a hotel room. T.H. testified, when the threesome met up
after the robbery, they went to the apartment of Bridges’s friend and divided the
proceeds in a bedroom. Bridges’s friend testified he walked into his bedroom and
saw the three sorting “small dominations of crumpled-up cash” shortly after the
Casey’s was robbed.
The State offered sufficient evidence to corroborate T.H.’s testimony from
multiple sources—Zakk’s testimony, the security footage, and the discarded
clothing, as well as the testimony about Bridges’s financial motivation. The jurors
were free to review the totality of the evidence and determine if it connected
Bridges to the crimes independently from T.H.’s testimony. See id. The district
court properly denied the motion for judgment of acquittal on all three offenses
because the jury’s verdicts were supported by substantial evidence.
B. Counsel’s Failure to Object to Conspiracy Instructions
The State charged Bridges with robbery, either as the principal5 or an aider
and abettor. The trial information—which the prosecutor read to the jury at the
start of the trial—included a third alternative: Bridges “conspired with or entered
into a common scheme or design with one or more others” to commit the robbery.
5 The State did not present any evidence showing Bridges acted as the principal, but Bridges does not challenge the sufficiency of the evidence for that alternative theory. 9
On appeal, the State admits that passage was “erroneous” because the State did
not charge Bridges with conspiracy under section 706.1.6
Against that backdrop, Bridges challenges his trial counsel’s failure to object
to a series of jury instructions setting out the law of conspiracy.7 To prove he
6 “A conspiracy to commit a public offense is an offense separate and distinct from any public offense which might be committed pursuant to such conspiracy.” Iowa Code § 706.4 (emphasis added). 7 At issue are the following six instructions: Instruction No. 19 The State alleges that [Bridges], [G.C.], and [T.H.] were co-conspirators. The State must prove all the following elements in order to prove that [Bridges] participated in a conspiracy: 1. On or about the November 4, 2015, [Bridges] agreed with [G.C.] and [T.H.] a. that one or more of them would commit a robbery, or solicit another to commit the robbery; or b. attempt to commit the robbery 2. [Bridges] entered into the agreement with the intent to promote or facilitate a robbery. 3. [Bridges], or [G.C.], or [T.H.] committed an overt act.
Instruction No. 20 In order to prove that [Bridges] conspired to commit a robbery with [G.C.] and [T.H.], the State must prove [Bridges] and [G.C.] and [T.H.] came to a mutual understanding that a robbery would be attempted or committed. The agreement can be oral or written, informal or formal, and need not be detailed. It may be proven by direct or circumstantial evidence of a person’s words, actions or gestures.
Instruction No. 21 Merely because two or more persons associate with each other, or meet to discuss common interests or goals does not, by itself, establish an agreement or make one a member of a conspiracy.
Instruction No. 22 An “over act” is any act indicating a person’s intent to accomplish the robbery. The overt act itself does not prove a conspiracy. A person who commits an overt act cannot be a conspirator unless that person also agreed and intended the robbery would be committed.
Instruction No. 23 The State does not have to prove [Bridges] knew all the details of the conspiracy nor all the other persons who had agreed to commit a robbery. However, the State must prove [Bridges] knowingly participated in the agreement at some time. If a person performs an act that promotes or facilitates the purpose of the conspiracy without knowledge of the conspiracy, he or she is not a conspirator. 10
received ineffective assistance of counsel, Bridges must show (1) trial counsel
breached an essential duty when he lent his approval to the proposed jury
instructions on conspiracy and (2) Bridges suffered prejudice as a result. See
Strickland v. Washington, 466 U.S. 668, 687–88 (1984). Here, the record is
adequate to address the claim on direct appeal. See State v. Soboroff, 798 N.W.2d
1, 8 (Iowa 2011).
1. Breach of Duty
We turn first to the performance prong. Bridges argues his attorney had a
duty to “know the applicable law” and to protect him from a conviction stemming
from a mistaken application of the law. He contends counsel was remiss in not
objecting to the conspiracy instructions because they had “no relevancy” to his
robbery case and would have been “confusing and misleading” to the jurors.
The State insists counsel had no duty to object to the conspiracy
instructions. Citing State v. Tonelli, 749 N.W.2d 689, 691–92 (Iowa 2008), the
State argues the court may instruct the jury on concepts of conspiracy even when
the State has not charged the defendant under section 706.1. The State also
asserts the disputed instructions gave the jury “particularized directives on what
evidence of the conspiracy they could use to find Bridges guilty of robbery and
when they could do so.”
Instruction No. 24 Whether a person is a conspirator depends upon his or her own conduct or statements. If, however, you find [Bridges] agreed the robbery would be committed, then the conduct or statements of the others who agreed to commit robbery may be considered as evidence against him, providing the conduct or those statements promoted or facilitated the purpose of the conspiracy and occurred before the conspiracy ended. It is not necessary the conduct or statement of the others occurred in Bridges’s presence. 11
The State reads Tonelli too broadly. Tonelli addresses what constitutes a
“conspiracy” sufficient to trigger the rule of evidence concerning the admissibility
of co-conspirator statements. 749 N.W.2d at 691 (discussing Iowa Rule of
Evidence 5.801(d)(2)(E)). Tonelli held the definition of “conspiracy” for purposes
of rule 5.801(d)(2)(E) was distinguishable from the definition of criminal conspiracy
under section 706.1. Id. at 693. The court further concluded the rule on
admissibility of co-conspirator statements would apply where the record included
“evidence of a conspiracy to accomplish a criminal or unlawful act, or to do a lawful
act in an unlawful manner, but not to combinations or agreements in furtherance
of entirely lawful goals advanced by lawful means.” Id. at 694. But Tonelli did not
hold that a trial court may instruct a jury on the elements of an uncharged
conspiracy.
The State further argues counsel was not obliged to object because “the
jury instruction package as a whole” did not mislead the jurors as to the availability
of the conspiracy alternative. The State points out neither the robbery marshalling
instruction nor the verdict form mentioned a conspiracy alternative.
A defense counsel’s failure to recognize an instructional error breaches an
essential duty. See State v. Hopkins, 576 N.W.2d 374, 379–80 (Iowa
1998). Here, counsel had a duty to object to these free-floating conspiracy
instructions—which had no valid connection to the robbery charge—though they
immediately preceded the robbery marshalling instruction. Instructing the jury
regarding a separate crime, not charged, creates a troubling due process question:
How can the accused adequately prepare a defense against a phantom offense?
The short answer is the accused cannot and due process protections ensure he or 12
she is not placed in that precarious position. See State v. Hernandez–Lopez, 639
N.W.2d 226, 241 (Iowa 2002) (“At the very least, due process requires the
defendant to receive formal notice of the charges against him and an opportunity
to be heard at a meaningful time in a meaningful manner.”); State v. Griffin, 386
N.W.2d 529, 531 (Iowa Ct. App. 1986) (noting due process requires a defendant
to be “apprised of the crime charged with sufficient certainty to enable him to
prepare his defense”). By not objecting to the conspiracy instructions, defense
counsel failed to perform an essential duty. See Ondayog, 722 N.W.2d at 785.
2. Prejudice
Next, we must determine if counsel’s failure to object to the conspiracy
instructions resulted in prejudice to Bridges. See id. (“The question becomes
whether there was a tactical reason for not objecting to the instruction.”). The State
suggests the record is “foggy” as to counsel’s motivations for not objecting. The
State contends even if the conspiracy instructions were inapplicable to the robbery
charge, they “could only have worked to Bridges’ advantage” by placing “an
additional hurdle” in front of the prosecution.8 The State further argues Bridges
was not prejudiced because the prosecution offered “overwhelming evidence” to
support his conviction for aiding and abetting the robbery, “for which the jury was
given a correct instruction.”
8 The State asserts the instructions created “a prerequisite that the jury had to reach the conclusion that a conspiracy existed prior to considering T.H.’s testimony or G.C.’s out-of- court statements.” We disagree with this assertion. The instructions placed no parameters on the jury’s consideration of T.H.’s in-court testimony and the admissibility of G.C.’s coconspirator statements was a threshold legal question for the court. See Iowa R. Evid. 5.801(d)(2)(E). 13
We address the State’s last point first. Flawed jury instructions “cannot
necessarily be overcome” by giving other instructions that correctly state the law.
State v. Hanes, 790 N.W.2d 545, 552 (Iowa 2010). Here, the jury returned a
general verdict finding Bridges “guilty of robbery in the first degree, as charged in
count one of the trial information” without specifying which theory or theories each
juror relied upon. Of course, the trial information mistakenly included the
conspiracy alternative, as well as aiding and abetting. Moreover, the court
instructed the jurors that “[w]here two or more theories are presented, or where
two or more theories would produce the same result, the law does not require each
juror to agree as to which theory leads to his or her verdict.” On the available
record, we are left to guess whether the jury improperly gravitated to the State’s
conspiracy theory of robbery.
Aiding-and-abetting liability and conspiracy liability, while both allowing
vicarious responsibility for another’s actions, are distinct concepts governed by
separate code sections. Compare Iowa Code § 703.1 with § 706.1; see State v.
Huser, 894 N.W.2d 472, 504 (Iowa 2017) (noting “aiding and abetting and
conspiracy are different concepts”). Our court has explained “[t]he law of aiding
and abetting must be differentiated from a charge of conspiracy.” Shelton v. State,
No. 08-1962, 2011 WL 441932, at *4 (Iowa Ct. App. Feb. 9, 2011). “In conspiracy,
a defendant engaged in a criminal act is liable for the acts of his coconspirators
which were done in the furtherance of the common plan. However in aiding and
abetting, the guilt of each person must be determined alone from the part he played
in the transaction.” Id. In other words, even though a defendant may be found
guilty under a theory of conspiratorial liability based solely on an agreement to 14
commit a crime and a coconspirator’s overt act, a defendant may not be convicted
of aiding and abetting unless the State offers proof he has engaged in conduct
designed to assist another in the commission of a crime. See Iowa Code § 703.1
(“The guilt of a person who aids and abets the commission of a crime must be
determined upon the facts which show the part the person had in it, and does not
depend upon the degree of another person’s guilt.”)
The jury could have concluded Bridges was guilty of conspiring with G.C.
and T.H. from evidence that he secured their agreement to commit a robbery and
then they engaged in acts indicating their intent to accomplish the crime, for
example, obtaining a weapon or casing convenience store locations. The burden
to prove robbery by aiding and abetting was arguably more onerous. The State
was required to prove Bridges “lent countenance and approval” to G.C.’s criminal
act “either by active participation in it or by some manner encouraging it prior to or
at the time of its commission.” See State v. Vesey, 241 N.W.2d 888, 891 (Iowa
1976). “[N]either knowledge nor proximity to the scene is—standing alone—
enough to prove aiding and abetting.” State v. Lewis, 514 N.W.2d 63, 66 (Iowa
1994). Because Bridges offered a counter-narrative that he had proximity to the
robbery without knowledge or participation, we cannot be confident all of the jurors
settled on the aiding-and-abetting theory rather than latching onto the alternative
theory of conspiracy. Instructing the jury on the elements of conspiracy thus posed
a risk that Bridges would be convicted of an uncharged crime.
The prosecution injected the theory of conspiracy liability into the trial—from
the reading of the trial information to closing arguments. In closing, the prosecution
made at least nine references to conspiracy as a method of convicting Bridges of 15
robbery.9 The prosecutor highlighted the conspiracy instructions: “In this case the
State has presented two separate theories as the Judge has read the jury
instructions to you. One is conspiracy. . . . The second theory has to do with Mr.
Bridges and his aiding and abetting of what happened.” When reviewing the
specific intent element of the robbery marshalling instruction, the prosecutor told
the jurors that it was proven if Bridges “conspired with” G.C. The prosecution’s
closing arguments contribute to our finding of prejudice.
Competent counsel should have lodged an objection to the conspiracy
instructions, especially considering the defense pursued by Bridges—which
attempted to thread the needle between associating with the gunman both before
and after the robbery, yet disclaiming liability. We find no strategic reason for trial
counsel not to object to the irrelevant series of instructions on conspiracy.
A party is prejudiced when the district court’s instructions materially misstate
the law or confuse and mislead a jury. See Anderson v. Webster City Cmty. Sch.
Dist., 620 N.W.2d 263, 267–68 (Iowa 2000). When reviewing instructions in the
context of an ineffective-assistance-of-counsel claim, we require the defendant to
show a reasonable probability the outcome of the trial would have been different if
the jury had not been led astray. We find Bridges has satisfied that burden here.
9 On appeal, the State argues any misstatements by the trial prosecutor are of no consequence because the court instructed the jurors that closing arguments are not considered evidence. But the concern is not that the arguments would be viewed as evidence, the concern is the prosecutor misstated the law and exacerbated the faulty instructions on conspiracy. See State v. Clay, 824 N.W.2d 488, 497 (Iowa 2012) (“A prosecutor can argue the law, but cannot instruct the jury on the law.”). 16
While the State offered substantial evidence Bridges aided and abetted in
the robbery, it was also within the jurors’ prerogative to believe Bridges’s version
of events. Even if the jury rejected Bridges’s story, it could have found the State
proved conspiracy liability—rather than accomplice liability—and rendered its
guilty verdict on a faulty basis. Had the jury not been instructed on the elements
of conspiracy, we think there is a reasonable probability the outcome of his trial
would have been different. See Soboroff, 798 N.W.2d at 9–10 (quoting language
from Strickland that reasonable probability test for prejudice requires only a
showing that the probability of a different result is “sufficient to undermine
confidence in the outcome”).
Because our confidence in the jury’s verdict is shaken, we conclude
counsel’s failure to object resulted in prejudice and Bridges is entitled to relief. We
reverse his conviction for first-degree robbery and remand for a new trial.
C. Requested Lesser-Included-Offense Instruction
Having concluded Bridges was not entitled to judgment of acquittal on any
of the three offenses, and having also determined a new trial is warranted on his
first-degree robbery conviction, we turn to his claims involving the two remaining
convictions for using a juvenile to commit robbery. He again attacks the jury
instructions.
Bridges requested a jury instruction on contributing to the delinquency of a
minor10 as a lesser included offense to using a juvenile to commit certain
10 “It shall be unlawful: . . . To knowingly encourage, contribute, or in any manner cause such child to violate any law of this state, or any ordinance of any city.” Iowa Code § 709A.1(3). 17
offenses.11 The trial court refused to submit the requested instruction, relying on
our unpublished case of State v. Rockwood, No. 15-0289, 2016 WL 2745906, at
*2 (Iowa Ct. App. May 11, 2016). On appeal, Bridges argues the district court was
mistaken in not giving the jury the option of finding he was only guilty of contributing
to the delinquency of a minor, which is a simple misdemeanor.
Iowa courts use the “impossibility test” to determine if one crime qualifies as
a lesser included offense of another. State v. Miller, 841 N.W.2d 583, 588 (Iowa
2014). Under the impossibility test, we ask if the offender can commit the greater
offense without also committing all elements of the lesser included offense. Id.
We don’t require the legislature to have described the elements of the two offenses
in an identical manner. See State v. Waller, 450 N.W.2d 864, 866 (Iowa 1990)
(equating elements statutorily described differently in greater and lesser offenses).
To determine the existence of a lesser included offense, we first look at the
elements of the marshaling instruction submitted to the jury. See Miller, 841
N.W.2d at 590. We then compare the elements described in the marshalling
instruction to the statutory elements of the proposed lesser included offense. Id.
The marshalling instructions submitted at Bridges’s trial for using a minor to
commit certain indictable offenses under section 709A.6(2) required the State to
prove:
1. That on or about November 4, 2015, [Bridges] acted with, or entered into a common scheme or plan with, or conspired with, or recruited or used; 2. A person under age 18, namely [T.H. or G.C.];
11 “It is unlawful for a person to act with, enter into a common scheme or design with, conspire with, recruit or use a person under the age of eighteen, through threats, monetary payment, or other means, to commit an indictable offense for the profit of the person acting with, entering into the common scheme or design with, conspiring with, recruiting or using the juvenile.” Iowa Code § 709A.6(2). 18
3. To commit a robbery; 4. Through threats or monetary payment or other means; 5. For the profit of [Bridges]. By comparison, it is unlawful under section 709A.1(3) (the proposed lesser
included offense of contributing to delinquency) (1) to knowingly encourage,
contribute, or in any manner cause (2) a child under eighteen years of age (3) to
violate any law of this state, or any ordinance of any city.
Offense Elements
709.6(2)/ Entered Through A person To commit For the Marshalling into a threats or under age a robbery profit of the Instruction common monetary eighteen defendant scheme or payment plan with, or other or means conspired with, or recruited or used 709A.1(3) Knowingly encourage, Any child To violate (Contributing contribute or in any under any law of to the manner cause eighteen the state, delinquency years of or any city of a minor) age ordinance
Bridges contends it was impossible for him to violate section 709A.6(2), as
marshaled at his jury trial, without also contributing to the delinquency under
section 709A.1(3). He points out both crimes involve enlisting (recruiting or using
through threats or payment vs. encouraging or in any manner causing) someone
under the age of eighteen to commit a crime (here robbery). The extra element in
the greater offense is the profit motive for the defendant.
The State defends the district court’s decision not to submit the proposed
lesser included offense instruction. The State claims contributing to the 19
delinquency is not a lesser included offense of using a minor to commit robbery
because the proposed lesser included offense requires proof of an extraneous
element—knowledge that the other participant is under eighteen. The State
asserts the phrase “knowingly encourage . . . such child” in section 709A.1(3)
means the defendant must have knowledge the other person is a child. The State
contends the absence of the word “knowingly” in section 709A.6(2) creates strict
liability for the age element of the greater offense. Under the State’s reasoning, a
defendant could be convicted of the class “C” felony—using a juvenile to commit
an indictable offense—regardless of whether the defendant knew the “used”
person was a juvenile, but a defendant could not be convicted of the simple
misdemeanor—contributing to the delinquency—without proof the defendant knew
the “encouraged” person was a juvenile.
We are skeptical the legislature intended such a strange dichotomy—
requiring knowledge of age for the non-indictable offense, but not for the felony.
Iowa—like all other states—enacted its “contributing to delinquency” statute “to
eliminate any variety of Fagin-Oliver Twist relationship” in our society. See James
N. Kourie, Annotation, Mens Rea or Guilty Intent as Necessary Element of
Contributing to the Delinquency of a Minor, 31 A.L.R.3d 848 (1970). The
legislature enacted a forerunner of section 709.6A.1(3) in 1921. State v. Simpson,
118 N.W.2d 606, 609 (1962). The legislature “made this offense practically all
inclusive to cover the field of all possible acts or series of acts that would contribute
to or cause the delinquency of a child under 18 years of age . . . it took in the entire
field of criminal law, both state and local.” Id. “The intent of the legislature was to
protect children.” Id. Given that clear motivation for the law, we cannot read the 20
term “knowingly” as requiring proof that the defendant knew the age of the victim.
Cf. State v. Tague, 310 N.W.2d 209, 212 (Iowa 1981) (rejecting mistake of fact as
to victim’s age as a defense to the charge of sexual abuse in the third degree and
describing People v. Atchison, 583 P.2d 735 (Cal. 1978), which held that trial court
erred in instructing jury that knowledge of age is immaterial to the charge of
contributing to the delinquency of a minor, as minority view). To do so would
provide less protection for children.
Moreover, when the legislature wants to make knowledge of age an element
of the offense, it knows how to do so explicitly. See Iowa Code § 123.47
(prohibiting a person from selling, giving or otherwise supplying “alcoholic liquor,
wine, or beer to any person knowing or having reasonable cause to believe that
person to be under legal age” (emphasis added)). In the absence of such clear
language, we decline to find the proposed lesser included offense requires a
greater showing of mens rea than the greater offense. Contrary to the State’s
position, neither section 709A.6(2) nor section 709A.1(3) requires proof that a
defendant knew the person that he encouraged or recruited person was a minor.
The State pulls an additional arrow from its quiver. It asserts section 709A.1
is not subject to a lesser included offense analysis because of the anti-merger
language in section 709A.2. Section 709A.2 provides “A violation of section
709A.1 is a simple misdemeanor. A conviction does not bar a prosecution of the
convicted person for an indictable offense when the acts which caused or
contributed to the delinquency or dependency of the child are indictable.” See
Simpson, 118 N.W.2d at 609 (describing legislature’s recognition that conviction
of contributing to delinquency, a non-indictable misdemeanor, “should not bar a 21
prosecution for an indictable offense”). The State interprets section 709A.2 as
allowing convictions under both 709A.1 and 709A.6, thus foreclosing a lesser-
included-offense structure. We disagree with the State’s interpretation. When
discussing the possibility of two prosecutions, section 709A.2 is referring to the
“indictable offense” the child is encouraged to commit. It is not referring to the
later-enacted, indictable offense of using a minor in section 709A.6.12 Section
709A.2 is not relevant to our lesser-included-offense analysis.
The only case examining whether contributing to delinquency should be
instructed as a lesser included offense of using a juvenile to commit certain
offenses is Rockwood, 2016 WL 2745906 at *1–2 (concluding contributing to
delinquency under Iowa Code section 709A.1(1) is not a lesser included offense
of using a juvenile to commit certain offenses). That case involved subsection (1)
rather than subsection (3) of section 709A.1. Id. at *2. Subsection (1) makes it a
crime “[t]o encourage any child under eighteen years of age to commit any act of
delinquency defined in chapter 232.” Iowa Code § 709A.1(1). Rockwood asserted
the verb “encouraged,” as used in subsection (1), fell within the using “other
means” language in section 709A.6(2). Rockwood, 2016 WL 2745906, at *2. Our
court concluded while “encouraging” the commission of a delinquent act could
qualify as “other means” under section 709A.6(2), it was still possible to commit
12 Section 709A.6 was originally enacted in 1992 as part of an omnibus juvenile justice package, much of which was vetoed by the governor due to budgetary and staffing limitations. H.F. 2452, 74th Gen. Assemb., 2d Sess. (Iowa 1992). The legislature criminalized using a minor to commit certain offenses as part of the Juvenile and Criminal Justice Act. Id. The act was intended to establish and increase penalties for offenses involving minors. See id. Originally, the legislature classified using a minor to commit certain offenses as a class “D” felony, but in 1995 it was amended and reclassified as a class “C” felony. Compare id., with H.F. 528, 76th Gen. Assemb., Reg. Sess. (Iowa 1995). 22
the greater offense by means other than encouragement, thus the simple
misdemeanor under section 709A.1(1) was not a lesser included offense. Id.
We find Rockwood distinguishable because subsection (3), at issue here,
features more all-encompassing terminology than subsection (1). Subsection (3)
prohibits a person from knowingly encouraging, contributing, or in any manner
causing such child to violate any state law or city ordinance. Iowa Code
§ 709A.1(3). We believe it would be impossible to commit the greater offense of
using a juvenile to commit a robbery without also knowingly encouraging,
contributing, or in any manner causing that juvenile to violate a state law.
Accordingly, we find the district court erred in not submitting the lesser included
offense to the jury.
But that finding does not end our inquiry. An instructional error does not
automatically warrant reversal. State v. Negrete, 486 N.W.2d 297, 298 (Iowa
1992). The omission of the proffered instruction is considered prejudicial if selling
the jury on the reduced culpability offered by the lesser included offense formed “a
primary part” of the defense. Miller, 841 N.W.2d at 596 (in prosecution for escape,
finding omission of lesser included offense instruction on absence from custody
was prejudicial because Miller’s primary defense was that he failed to check back
into facility after furlough).
Here, the difference between the proposed lesser included offense and the
marshalled offense was the “for profit” element. See Iowa Code § 709A.6(2).
Within section 709A.6 “‘profit’ means a monetary gain, monetary advantage, or
monetary benefit.” Id. at § 709A.6(1). Bridges’s defense did not center on that
element. Instead he denied any involvement in the robbery and claimed the cash 23
came from his marijuana sales. Because Bridges pursued an all-or-nothing
defense, and the State offered substantial evidence from which the jury could find
Bridges profited from G.C.’s robbery of Casey’s, we find the instructional error to
be harmless.
D. Prosecution’s Use of Interrogation Recording
1. Admission of Recording Over Bridges’s Objection
Bridges filed a motion in limine to exclude the audio recording of his
interrogation—arguing his statements were inadmissible hearsay. While arguing
the motion, counsel for Bridges asserted his client was prejudiced by Detective
Wing repeatedly calling Bridges a liar during the interrogation. The district court
admitted the recording, and it was played for the jury during trial.
On appeal, Bridges focuses on the detective’s statements during the
interrogation, claiming they constituted impermissible commentary on Bridges’s
credibility. Our supreme court rejected a similar argument in State v. Enderle. See
745 N.W.2d 438, 442–43 (Iowa 2007) (concluding officer statements provide
context for defendant’s answers). In Enderle, the court concluded police officer
statements “made during interrogations are not ‘testimony’ given by witnesses at
trial and [are] not offered to impeach the defendant.” Id. at 443. The officer
statements provide context for the defendant’s responses. Id.
The district court properly allowed the jury to hear Bridges’s statements on
the audio recording. See Iowa R. Evid. 5.801(d)(2)(A); State v. Odem, 322 N.W.2d
43, 47 (Iowa 1982) (“It is basic that a party may place into evidence the admissions
of a party-opponent.”). And the detective’s statements were admissible to provide 24
context for Bridges’s statements. See Iowa R. Evid. 5.106;13 Enderle, 745 N.W.2d
at 443.
The district court also properly weighed the probative value of the recording
against the risk of undue prejudice as required by Iowa Rule of Evidence 5.403.14
See State v. Davis, No. 13-1099, 2014 WL 5243343, at *7 (Iowa Ct. App. Oct. 15,
2014) (noting district court must consider rule 5.403 after applying rule 5.106). The
jury was entitled to assess how Bridges responded to the detective’s assertions
Bridges was reformulating his account as the interview progressed. As the State
argues on appeal, the detective’s accusations were the necessary “connective
tissue” to explain Bridges’s shifting recollections. We afford district courts broad
discretion in conducting the rule 5.403 balancing test. See State v. Taylor, 689
N.W.2d 116, 124 (Iowa 2004) (recognizing “wise judges may come to differing
conclusions” and giving “much leeway to trial judges who must fairly weigh
probative value against probable dangers” (citation omitted)). We do not believe
the district court abused its discretion in allowing the jury to hear the twenty-two
minute recording.
2. Failure to Request a Limiting Instruction
13 “When [a] . . . recorded statement, or part thereof, is introduced by a party, any other part . . . is admissible when necessary in the interest of fairness, a clear understanding, or an adequate explanation.” Iowa R. Evid. 5.106. Recordings of police interrogations may be presented in whole to place statements by the defendant in context. See State v. Esse, No. 03–1739, 2005 WL 2367779, at *3 (Iowa Ct. App. Sept. 28, 2005). 14 “The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Iowa R. Evid. 5.403. 25
Bridges next argues his trial attorney was ineffective for not requesting a
limiting instruction to address the purpose for which the jurors could consider the
detective’s statements on the audio recording. A limiting instruction is required
when evidence is admissible for one purpose but not another. See Iowa R. Evid.
5.105.15 Bridges contends the jury should have been cautioned to use the
detective’s statements only for context and not for the truth of the matter asserted.
In a factually similar case, our court concluded a limiting instruction was necessary.
See State v. Esse, No. 03-1739, 2005 WL 2367779, at *3 (Iowa Ct. App. Sept. 28,
2005) (holding defendant was entitled to a new trial when district court denied a
request for limiting instruction and appellate court couldn’t determine if jury relied
on the interrogator’s repeated claims Esse was lying about his involvement in the
crime).
Because his counsel did not request a limiting instruction, Bridges must
demonstrate counsel omitted an essential duty and Bridges was prejudiced by the
omission. See Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001). Assuming
competent counsel should have requested a limiting instruction as described in
Esse, we find Bridges is unable to establish prejudice on this record.
The test for prejudice is whether “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694.
15 “If the court admits evidence that is admissible . . . for a purpose—but not . . . for another purpose—the court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly.” Iowa R. Evid. 5.105. 26
We find no reasonable probability of a different outcome had counsel
requested a limiting instruction concerning the proper use of the detective’s
statements accusing Bridges of lying during the interrogation. Bridges admitted
at least six times during his own testimony that he lied to the detective. Bridges
claimed he lied to hide his marijuana dealings, but nevertheless he confirmed the
detective’s accusations that he was not being truthful. Even with a limiting
instruction concerning the detective’s statements, the jurors would have been able
to consider the truth of the matter asserted in Bridges’s own admissions. Bridges
is not entitled to relief on this claim of ineffective assistance of counsel.
E. Sentencing
1. Imposition of Consecutive Sentences
The district court sentenced Bridges to an indeterminate term of prison not
to exceed twenty-five years for first-degree robbery and indeterminate terms of ten
years each for two counts of using a minor to commit robbery. The later counts
were to run concurrently to each other but consecutively to the robbery count. On
appeal, Bridges challenges the district court’s consecutive sentencing. Because
we reverse Bridges’s first-degree robbery conviction, his particular challenge to the
consecutive sentences is moot. We remand for resentencing on the remaining two
counts. See State v. Nall, 894 N.W.2d 514, 525 (Iowa 2017) (“When only one of
several convictions is reversed on appeal, an appellate court may remand the
entire case for resentencing.”).
2. Consideration of Juvenile Record
The presentence investigation (PSI) report, which the district court reviewed
before the sentencing hearing, contained information related to delinquency 27
adjudications received by Bridges. On appeal, Bridges contends the district court
should have weighed the mitigating factors set out in State v. Lyle, 854 N.W.2d
378, 404 n.10 (Iowa 2014) when considering his juvenile record. We find no
mandate in Lyle for Bridges’s contention. In fact, Lyle specified: “This case does
not move any of the lines that currently exist in the sentencing of adult offenders.”
Id. at 403. We decline to get ahead of our supreme court on this issue. See State
v. Bruegger, 773 N.W.2d 862, 886 (Iowa 2009) (acknowledging “Bruegger’s
conduct as a juvenile” was relevant to sentencing).
F. Conclusion
To recap, we find the district court properly denied the motion for judgment
of acquittal on all three counts. But we conclude Bridges received ineffective
assistance of counsel when his attorney failed to object to the conspiracy
instructions impacting the first-degree-robbery conviction. We reverse and
remand for a new trial on the robbery count of the trial information.
As for the other appellate claims, we conclude the court should have
submitted the lesser included offense of contributing to delinquency, but we find
the error was harmless considering Bridges’s defense denying any involvement in
the robbery. The district court properly admitted the audio recording of the
interrogation, and while counsel should have requested a limiting instruction in
relation to the detective’s statements on the recording, Bridges cannot show
prejudice as a result of counsel’s inaction. We remand for resentencing on the two
remaining counts and express no requirement that the district court apply the Lyle
factors when considering Bridges’s juvenile history. 28
JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED FOR NEW TRIAL AND RESENTENCING.