State of Iowa v. Raymond Duke Birden ( 2023 )

IN THE COURT OF APPEALS OF IOWA
No. 21-0890
Filed February 8, 2023
STATE OF IOWA,
Plaintiff-Appellee,
vs.
RAYMOND DUKE BIRDEN,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Linda Fangman,
Judge.
Raymond Duke Birden appeals his conviction for first-degree murder.
CONVICTION CONDITIONALLY AFFIRMED, SENTENCE VACATED, AND
REMANDED FOR FURTHER PROCEEDINGS.
Robert P. Montgomery of Parrish Kruidenier Dunn Gentry Brown &
Bergmann L.L.P., Des Moines, for appellant.
Brenna Bird, Attorney General, and Genevieve Reinkoester, Assistant
Attorney General, for appellee.
Heard by Bower, C.J., Tabor, J., and Gamble, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2023).
2
BOWER, Chief Judge.
Raymond Duke Birden appeals his conviction for first-degree murder, in
violation of Iowa Code section 707.2(1)(a) (2018). He asserts the court erred in
not submitting to the jury the question of whether DeQundes Glasper was an
accomplice whose incriminating testimony requires corroboration. Birden also
contends the trial court erred in denying his motion for new trial based on the
weight of the evidence. We find no error in the court’s ruling that Birden failed to
meet his threshold burden to prove by a preponderance of the evidence Glasper
was an accomplice. We conditionally affirm Birden’s conviction, but we remand
for the district court to consider the motion for new trial employing the appropriate
standard.
I. Background Facts and Proceedings.
At about 5:30 a.m., May 31, 2018, Shavondes Martin’s body was found lying
in an alley, which ran between several residences. He had been shot nine times
with two types of ammunition. Neighbors along the alley told investigating officers
they heard gun shots around 3:30 a.m.
A convenience store and restaurant lie on the northern end of the alley, and
police were able to obtain surveillance video from each location. The body was
found about three-quarters of a block down the alley, around a bend from the
southern end where Danaesha Martin lived.1 Danaesha and Shavondes were
cousins who spoke “[s]ocially, occasionally.”
1 Because Shavondes and Denaesha share the last name Martin, we will refer to
them by their first names for the remainder of this opinion.
3
The subsequent investigation led detectives to believe Danaesha;
Danaesha’s friend, DeQundes Glasper; Glasper’s brother, Shaquan Coffer;
Coffer’s girlfriend, Hanna Widdel; and Coffer’s friend, Raymond Birden, all had
information about Shavondes’s death. Birden was eventually charged with first-
degree murder; the State theorized Danaesha was asked by her former boyfriend,
Birden, to lure Shavondes into a vehicle and bring him to the alley where
Shavondes was ambushed by Birden and Coffer.
At trial, Officer Charles Nichols testified he arrived at the alley around
5:35 a.m. and observed a body lying in the alley with “multiple spots of blood” and
a pool of blood on the ground next to the body. The body was in a “very awkward
position,” and gravel was stuck to the dried blood, as if the body had been turned
over. The decedent was wearing socks but no shoes. A cell phone charging cord
which had been torn in half was near the body, but no cell phone was found. As
Officer Nichols walked back toward his patrol car, which was parked at the
southern end of the alley, he came across a pair of black Nike sandals about twenty
yards from the body. Officer John Heuer testified he found no wallet on or near
the body but he was able to identify the person as Shavondes via a tattoo
database. Further testimony established Shavondes had been shot a total of nine
times in his neck, head, torso, and legs with a 9-millimeter pistol and a .38-caliber
revolver.
Danaesha testified she had known Birden, Coffer, Widdel, and Glasper for
ten years as they had been in school together. She and Glasper were friends, she
4
knew Coffer, and she had been in a relationship with Birden that ended in 2014.
Before May 30, 2018, the five had not hung out together.
Danaesha explained she and a person she believed to be the mother of
Birden’s children arranged to “get high” together the evening of May 30. Danaesha
asked who the person was with, and the response was “Duke.” Both Coffer and
Birden were known as “Duke.” Danaesha was picked up at her residence by a tan
Jeep driven by Widdel—Coffer was in the front passenger seat, Birden was in the
rear seat behind the driver, and Danaesha sat in the rear passenger-side seat.
They drove around Waterloo drinking alcohol, smoking marijuana, and listening to
music via her cell phone, which was connected to the vehicle’s sound system by
an auxiliary cord. The four went to Coffer’s grandmother’s house and parked in
the backyard.
Glasper came out of the grandmother’s house and got in the car next to
Danaesha in the back seat of the Jeep. Danaesha stated the five then took the
Jeep to Walgreens and Glasper went in and came back “with a bottle of alcohol.”
Widdel then “dropped herself off” and another person Danaesha did not know got
into the Jeep.
Danaesha testified Birden had taken her phone before Glasper joined them.
She stated she had seen both Birden and Coffer with guns that evening. Birden
had a “police officer gun” and Coffer had a “cowboy gun.” According to Danaesha,
Birden and Coffer were using her phone to message Shavondes on Facebook
messenger. Birden held her phone on speaker mode and told Danaesha to call
5
Shavondes and ask him where he was. Shavondes told Danaesha he was on the
west side and gave a location.
The prosecutor continued with his direct examination of Danaesha:
Q. At this time, is that unknown individual still with you?
A. Yes.
Q. Is [Glasper] still with you? A. Yes.
Q. What was the plan then with regard to Shavondes? A. For
me to pick him up.
...
Q. At this point in time, do you have a belief about what is
going on? A. Yes.
Q. What is that? A. That they wanted me to pick him up.
Q. With regard to why they wanted to pick him up— A. Okay.
To my knowledge, at the time, they wanted to pick him up to kill him.
Q. And you knew that? A. I didn’t know because they didn’t
tell me, but my common knowledge would tell me that.
Q. That was your belief at the time? A. Correct.
Q.. Where—so do you ultimately then go pick up Shavondes?
A. Yes, I do.
Danaesha testified, “Everyone who was in the Jeep after [Widdel] got
dropped off” went to her apartment, where Birden, Coffer, and she left the Jeep
and got in a black Mitsubishi Danaesha had rented a few days prior. Danaesha
first stated she and Glasper were in the Jeep, but when asked how she knew the
Mitsubishi headed toward Shavondes’s location, she testified “I know that the
rental was by the Westminster because I was the one driving.” Glasper and the
unknown person were in the Jeep and apparently followed the Mitsubishi because
Danaesha testified she returned to the Jeep where Glasper “was in the trunk,” i.e.,
“the far back of the Jeep.” While driving the Jeep, Danaesha picked Shavondes
up from the side of the street near Westminster, and he got in the front passenger
6
seat. She testified she and Shavondes were going to “meet up to get high.” When
Danaesha arrived to pick up Shavondes, other people were with him.2
Danaesha testified she and Shavondes then went to drop Glasper off near
Hammond Street and he gave her directions.
Q. Is Hammond close to your residence? A. Yes.
Q. Do you drive then towards wherever it is on Hammond that
you stated he wants to get dropped off? A. Yes.
Q. Do you park the vehicle or what happens? A. Yes, I
parked.
Q. Were you in a driveway or on the street? A. On the street.
Q. Was there much traffic out and about at that time? A. No.
....
Q. Was it after midnight? A. Yes.
Q. What happens then after you park the vehicle? A. [Coffer]
came to Shavondes’ window with a gun, and the third unknown party,
he came and took me out of the vehicle and walked me to the rental
with Birden.
....
Q. How close were the Jeep—the tan Jeep and the rental? A.
A couple of feet away from each other.
Q. How is it that you’re taken from the Jeep to the rental?
A. The third party walked—well, basically, escorted me to the car.
Q. Did he have a gun? A. Yes, he did.
Q. Did [Coffer] have a gun? A. Yes.
Q. Where was [Birden] situated in the rental? A. [Birden] was
in the passenger seat.
Q. Anybody else in the vehicle? A. No.
Danaesha testified, “They were gonna—apparently trying to murder [Shavondes.]”
Danaesha sat in the driver’s seat, and Birden got out of the Mitsubishi and went to
the Jeep. Coffer got in the Mitsubishi with Danaesha and told her to “pull off.”
Q. Would it have been towards the vicinity of your house?
A. Not really.
Q. Could you have got to your house from where they left?
A. Yes.
2One of the men looked into the Jeep and asked Danaesha who was in the back.
She told them it was “Muff,” Glasper’s nickname.
7
Q. Does [Coffer] say anything to you? A. [Coffer]—well, when
me and [Coffer[ was in the car by ourself, he was holding a gun up
to me asking me do I think Birden love me.
Q. Is the tan Jeep still there or has it left? A. The tan Jeep
had moved off.
Q. As far as you know, is [Glasper] still in the tan Jeep?
A. Correct.
Q. Did the unknown male get back into the tan Jeep after he
escorted you to the rental? A. To my knowledge, the unknown male
was driving the tan Jeep. Shavondes was in the passenger seat,
Birden was in the rear passenger, and [Glasper] was in the rear
driver’s seat.
Q. Where do you and [Coffer] go? A. For a ride. We’re riding
around.
Q. Did you ever hear anything? A. I heard a single shot.
Danaesha testified she and Coffer drove around for about fifteen minutes
and then returned to the street where Coffer and Glasper’s grandmother lived.
Birden and the unknown person then pulled up in the Jeep. Glasper was not with
them. For the next several hours, Danaesha, Coffer, and Birden were together in
the Mitsubishi.3 Danaesha testified she did not get her cellphone back from Birden;
he “[s]mashed it, stepped on it.” They made several stops, switched drivers, and
eventually drove to Cedar Rapids. With Coffer driving and Birden in the front
passenger seat, from the backseat Danaesha heard Birden tell Coffer that
Shavondes had said, “ah-hah, you got me or something like that.”
The three returned to Waterloo on May 31. They discussed Danaesha
leaving town, and on June 1, Danaesha—wearing a wig of long hair—attempted
to board a bus out of Waterloo, but her bag was too large. Birden later drove her
to Chicago, where she got on a bus. Police located her several months later in
3The unknown person was with them for some portion of this time according to
Danaesha, but was not with them when they drove to Cedar Rapids.
8
Virginia.4 She returned to Iowa and was facing a conspiracy charge at the time of
trial with a possible ten-year suspended sentence.
Danaesha testified she believed Glasper was helping Coffer and Birden.
When asked why she believed that she stated, “Because he accepted my phone
from him, and if he was my real friend, he would have gave me my phone instead
of holding my phone.” She was asked if anything else led to her believe Glasper
was involved, “When he told me to drop him off and the car was right there, that
that car had came, that’s another reason.”
Widdel testified she and Coffer were picked up by Birden, who was driving
a tan Jeep. Widdel then started driving and Birden directed her to pick up
Danaesha in front of Danaesha’s residence on South Street. After they picked up
Danaesha from her home on South Street, they picked up Glasper at Glasper and
Coffer’s grandmother’s house. At that point in the early evening, Widdel and Coffer
were in the front seats; Birden was in the rear seat behind Widdel, Danaesha was
in the middle of the back seat, and Glasper was in the rear passenger seat.
Together, the group went to Walgreens on Kimball Avenue where Glasper
purchased liquor. Video from Walgreens indicates the purchase happened about
1:00 a.m. After they left Walgreens, Widdel drove herself home. Widdel testified
Glasper started driving when she got out.
Widdel testified Birden contacted her via Facebook Messenger sometime
after May 31—having never done so before—and told her he did not want anyone
4 In two phone calls Danaesha had with law enforcement while she was en route
to Virginia, she first denied knowing anything about Shavondes’s death, then
provided a bit of information but was not “all the way honest.”
9
to know that he was with Danaesha. She also testified she saw Danaesha texting
on her own phone while the five were driving around.
Jaryous Cooper testified that on the evening of May 30, he, Shavondes and
two others were at an apartment near a church on Waterloo’s west side playing
video games. Shavondes “took a phone call” and said he was going to leave and
was getting a ride with his cousin. Shavondes had his flip phone with him when
he left the apartment. Cooper was outside with Shavondes when Shavondes’s
cousin arrived; there was a male identified as Muff (Glasper) asleep in the
backseat of the vehicle.
Investigator Nick Sadd testified about several Facebook Messenger
communications between Birden and Shavondes beginning May 10, 2018,
recovered from Shavondes’s Facebook account.5 On May 10 and 11, messages
between the two appear to be taunts. Then, on May 29, the messages start up
again: Shavondes sent a rap audio clip to Birden, followed by a few other
messages. At 5:42 p.m. on May 30, Shavondes sent this message to Birden, “We
the same type of [n*****] but I’m a different breed I know how to move you don’t
take notes and all that dissin gone get you a spot by yo brother.” At 8:54 p.m.,
Birden responded, “I Bet Yu Meet Him Before I Do.” At 12:47 a.m. on May 31,
Shavondes sent Birden a message, “Drop yo location I’ll pull up dolo,” which
Investigator Sadd explained “is an expression for doing it solo or by himself.”
5Birden’s Facebook Messenger account during the relevant time period had been
deleted.
10
Investigator Sadd also testified concerning Facebook messages between
Danaesha and Shavondes on May 30 that indicate they exchanged phone
numbers.
Glasper testified that on May 30, he and a friend were riding around “day
drinking.” He was dropped off at his grandmother’s in the afternoon. He went
inside, “grabbed my bottle,” and went out back. Glasper later saw Coffer come out
of the house. Glasper testified Danaesha, Birden, and Widdel were in a SUV
parked in the back of the house. After some conversation, Glasper got in the SUV.
Danaesha was driving, Birden was in the front passenger seat, Coffer was in the
rear passenger-side seat, Widdel was in the middle back seat, and Glasper got in
behind Danaesha. They went “rollin’ around, people talking, listening to music,
drinking.” He stated he did not normally hang out with Danaesha or Birden.
Glasper stated he remembered going to Walgreens and getting a bottle of
Grey Goose, riding around some more, and then falling asleep. Glasper testified
when he woke up, he was alone in the SUV near Westminster Church. Danaesha
walked up to the vehicle, and Glasper told her he was supposed to be going to a
friend’s, but she “need[ed] [him] to go somewhere with [her].” Glasper and
Danaesha started to ride around the neighborhood and when asked where they
were going, Danaesha told Glasper she needed to pick up her cousin. After driving
around for a bit, Danaesha returned to the area around Westminster Church where
Glasper had woken up.6 Shavondes was outside waiting with Cooper and another
6 Glasper said this “confused” him because she “pretty much” drove in a circle
around the neighborhood before returning to pick up Shavondes.
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male. Glasper got into the backseat and Shavondes sat in the front seat. Glasper
heard Danaesha tell someone it was Muff in the backseat.
Glasper said Danaesha “started tweaking . . . doing weird stuff . . . like
hitting the brakes” and “swerving,” then she told Glasper and Shavondes she
needed to “pee.” Shavondes told her to stop at Kwik Star, which was right around
the corner. But, Danaesha “just instantly threw the car in park[ ], hopped out the
car and went between the garages.” Glasper could not see her in the dark.
Danaesha returned to the Jeep and continued to drive erratically and said she still
had to pee, so she was going to go to her house. Glasper found her driving odd
because she was acting “drunk,” but she’d “been driving around all day and never
had [a] problem with it . . . and now all of a sudden she [is] just driving outta whack.”
Danaesha drove to her residence, parked in an alley at the back of the house, and
went inside. Danaesha was gone longer than the men in the car felt was necessary
to use the restroom, and Shavondes got nervous. Glasper got into the driver’s
seat to take over the driving, Shavondes moved to the rear passenger seat, and
they continued to talk while they waited for Danaesha.
Glasper heard a voice “come out of nowhere” that said, “Yeah, bitch ass
n****. We got you.” Glasper said he looked in the rearview mirror and saw
Shavondes putting his head down and shaking it. Shavondes said, “Damn, y’all
got me; y’all got me.” Glasper then saw a black “police gun” come through the rear
passenger window pointed at Shavondes. Glasper was “scared” and he “froze.”
He did not look up but believed the voice he heard was Birden’s. Glasper testified
he heard the person start listing off names of people he believed Shavondes had
12
wronged, including Tavis, Birden’s brother.7 Glasper was told to get his “bitch ass
out of the car before I blow your head off, too.” Glasper got out of the car, and, as
he was walking away, he saw “multiple people coming outta nowhere.” Glasper
then heard someone say, “Get this bitch ass out of the car,” and he turned to see
Shavondes being grabbed out of the car and taken down the alley behind
Danaesha’s residence. Glasper said he got back in the SUV, reversed it, and took
off toward the highway.
Glasper was questioned by police and was not “completely honest” at first.
He testified he was scared and did not want to be involved. He stated he was in
the wrong place at the wrong time.
When the defense moved for a directed verdict, it argued both Danaesha
and Glasper were accomplices to Shavondes’s killing and their testimony could
not be used to corroborate each other. The following exchange occurred:
THE COURT: I’m asking what facts are you asking the court
to rely upon to make a finding that Mr. Glasper would be an
accomplice.
[Defense Counsel]: . . . The testimony of Danaesha Martin is
that they were all in it together. Her testimony as an accomplice is
to try to cast blame on someone other than herself, and that can
include other accomplices.
She testified that Mr. Glasper held her phone, kept her phone.
She testified that throughout this evening of May 30th into May 31,
2018, she was under duress. But it is entirely clear that when she
picked up Shavondes Martin that neither Mr. Birden or Mr. Coffer is
around with a weapon.
There’s nothing compelling her to act under duress other than
the only person with her other than Shavondes was DeQundes
Glasper. So we’re asking the court to look at her testimony regarding
that as she tries to basically point fingers at everybody else.
7 Otavious “Tavis” Brown was shot and killed in July 2016. Shavondes was one of
three charged with his death, but he was acquitted in February 2018.
13
She’s pointing fingers at what we believe somebody—at
someone who can be found factually to be an accomplice to this
murder. We also—the evidence shows that Mr. Glasper is the
person who asked them to go to Hammond which is where the
ambush occurred.
The court ruled the defense had failed to prove by a preponderance of the
evidence that Glasper could be found to be an accomplice, explaining merely
holding a phone or giving directions to a location could not support a charge of
first-degree murder.
The accomplice issue arose again during the court and counsels’ discussion
concerning jury instructions. The defense objected to the court’s proposed
instruction, which allowed the jury to determine if Danaesha Martin was an
accomplice, but did not allow the same for DeQundes Glasper:
We had a previous discussion when the defense made its
motion for judgment of acquittal regarding the testimony of
Danaesha Martin. I can repeat that, but I believe that is already on
the record. In addition to the evidence of—the testimony of Ms.
Martin, there are three videos that the State introduced into evidence.
One is a video of DeQundes Glasper at Walgreen’s. He’s wearing a
lighter-colored shirt, I believe light gray. That was taken earlier in the
evening of May 30th into May 31st. I believe the timestamp is about
1:00 in the morning May 31, 2018.
The State then introduced a video of Kwik Star for
approximately 2:50 a.m. on May 31st. In that video a person
identified by Investigator Sadd as . . . Shaquan Coffer gets out of the
passenger side of the vehicle. From the front view of the tan-colored
Jeep, which is the vehicle, it appears that the driver has a light-
colored shirt on.
The evidence is that Mr. Birden, who does not appear in any
of the videos in Waterloo, was wearing a dark-colored shirt later on
the date of May 31st. . . . Then there’s video behind the Gyro Hut. I
believe the timestamp is about 2:54. Investigator Sadd said that the
times are not entirely synced, but it is the second part of the video
going from Kwik Star into the alley where the body of Shavondes
Martin is found.
It is our position that the jury could find, as finders of fact, that
DeQundes Glasper is the driver of the vehicle because he’s wearing
14
a light-colored shirt. He is Shaquan Coffer’s brother; he testified to
that. He also testified that there were people who came out into that
alley from either side. Those people would have needed to have
gone to the alley.
It is our position that the jury could determine that DeQundes
Glasper was an accomplice in dropping off Shaquan Coffer to shoot
Shavondes Martin in that alley and that there is sufficient evidence
to instruct the jury that they may determine that DeQundes Glasper
is an accomplice and his testimony would also need to be
corroborated.
The prosecution asserted there was no evidence Glasper could be found
an accomplice, pointing out:
I believe the specific question during cross-examination of
Danaesha Martin was “Do you believe that DeQundes Glasper was
helping Shaquan Coffer and Raymond Birden?” Her answer was
something to the effect of “I believe so.” And the response was
because he was continuing to hold her phone. There’s been nothing
else in the record with regard to that.
The only other thing that would be considered would be
Danaesha Martin’s testimony that DeQundes Glasper was
instructing her where to go after they picked up Shavondes Martin.
Other than that, there simply is nothing in this record.
We contest Counsel’s assertions about what can be observed
on the front seat passenger of the Jeep at Kwik Star. We believe
that even if the court were to find that he is, in fact, the driver, that is
not enough to amount to someone that could be charged and
convicted. We would, for purposes of the record, state that it’s the
State’s theory that they left Kwik Star approximately [thirty] to [forty]
minutes before the shots were fired. Other than that, Judge, there’s
simply nothing in this record that could support any conclusion or any
inference that Mr. Glasper was, in fact, an accomplice as defined.
Noting it is the defense’s burden to prove by a preponderance of the
evidence that someone is an accomplice, the court found insufficient evidence “to
prove that Mr. Glasper aided or abetted or assisted in any way other than his mere
presence being there.”
After the jury returned a verdict finding Birden guilty of first-degree murder,
the defense filed a motion for new trial, again asserting the accomplice issue
15
rendered the evidence insufficient to support the conviction. In the alternative, the
defense argued the verdict was against the weight of the evidence.
II. Scope and Standard of Review.
We review the accomplice claim for correction of errors at law. See State
v. Douglas, 675 N.W.2d 567, 570–71 (Iowa 2004).
When reviewing the district court’s denial of a motion for new trial under
Iowa Rule of Criminal Procedure 2.24(2)(b)(6), we look only to see if the court
abused its wide discretion. See State v. Reeves, 670 N.W.2d 199, 202 (Iowa
2003). “On a weight-of-the-evidence claim, appellate review is limited to a review
of the exercise of discretion by the trial court, not of the underlying question of
whether the verdict is against the weight of the evidence.” Id. at 203 (noting the
appellate court does not judge witness credibility or reweigh evidence). “However,
we review a claim that the district court failed to apply the proper standard in ruling
on a motion for new trial for errors at law.” State v. Ary, 877 N.W.2d 686, 706
(Iowa 2016).
III. Discussion.
Accomplice testimony. The State cannot convict a defendant based solely
on accomplice testimony. Iowa R. Crim. P. 2.21(3). In addition, the testimony of
one accomplice may not be used to corroborate the testimony of another
accomplice. State v. Barnes, 791 N.W.2d 817, 824 (Iowa 2010); but see State v.
Harris, 589 N.W.2d 239, 242 (Iowa 1999) (“We may affirm a conviction based on
the testimony of an alleged accomplice in the absence of corroboration if a properly
instructed jury might have found from the evidence that the witness was not an
16
accomplice.”). When relying on accomplice testimony, the State must offer
corroborating evidence that independently links the defendant to the crime.
Douglas, 675 N.W.2d at 568–69. “Corroboration need not be strong nor need it
go to the whole case so long as it confirms some material fact connecting the
defendant with the crime.” State v. Liggins, 524 N.W.2d 181, 187 (Iowa 1994).
An accomplice is someone who “could be charged with and convicted of the
specific offense for which an accused is on trial.”8 Douglas, 675 N.W.2d at 571(citation omitted). The trial court correctly noted it is the defense’s burden to show
by a preponderance of the evidence the purported accomplice was somehow
involved in the commission of the crime. See id. “When the facts and
circumstances are undisputed and permit only one inference, whether a witness is
an accomplice is a question of law for the court.” Id. But if the facts are disputed
or give rise to different inferences, the accomplice question is for the jury. Id.“A preponderance of the evidence is the evidence ‘that is more convincing
than opposing evidence’ or ‘more likely true than not true.’” In re K.D., 975 N.W.2d
310, 320 (Iowa 2022) (citation omitted). “The evidence may preponderate, and yet
8Our supreme court has explained the test to determine whether an individual is
an accomplice:
We have defined an accomplice as a person who willfully unites in,
or is in some way concerned in the commission of a crime. 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. It
is not enough, however, to show mere knowledge of the
contemplation of a crime or mere presence at the time and place of
the crime; it must be established by a preponderance of the evidence
the witness was in some way involved in the commission of the
crime.
Barnes, 791 N.W.2d at 823 (internal citations and quotation marks omitted).
17
leave the mind in doubt as to the very truth. In such cases the evidence does not
fairly set the question at rest, but merely preponderates in favor of that side
whereon the doubts have less weight.” Walthart v. Bd. of Dirs. of Edgewood-
Colesburg Cmty. Sch. Dist., 694 N.W.2d 740, 744 (Iowa 2005) (citation omitted).
On our review, we find no error in the court’s ruling that Birden failed to meet his
threshold burden to prove by a preponderance of the evidence Glasper was an
accomplice.
Danaesha testified she was coerced into calling her cousin by Birden. She
testified Birden and Coffer were armed. Danaesha said “they wanted me to pick
him up” and “they wanted to pick him up to kill him.” There is nothing in this record
showing Glasper was even present during Danaesha’s call to Shavondes.
Glasper was the last of the five to join the “party” on May 30. He had already
consumed significant amounts of liquor, and he, Danaesha, and Cooper all
testified he was asleep in the back of the vehicle when Danaesha picked
Shavondes up. Glasper did not see any guns until he and Shavondes were parked
behind Danaesha’s house waiting for her to return. The person holding a gun told
Glasper get out of the vehicle and leave or he would be shot. Nothing in this record
shows Glasper knew of or was part of any plan to kill Shavondes. Glasper wasn’t
with Birden, Coffer, and Danaesha after the killing when they drove to Cedar
Rapids. His mere presence at the scene of the killing is not sufficient to prove
someone is an accomplice. See Douglas, 675 N.W.2d at 571; see In re D.F., No.
12-0820, 2013 WL 2146458, at *3 (Iowa Ct. App. May 15, 2013) (“D.M.’s mere
18
presence at the time and place of the crime or knowledge of the crime, . . . is not
sufficient to prove he was an accomplice.”).
Any evidence that Glasper was an accomplice is marginal at best. Most
evidence suggested Glasper was not involved. The defense asserts Glasper
would have the same motive to kill Shavondes as Birden, who was purportedly
avenging Tavis, but there is no evidence Glasper considered Tavis his “brother” or
that they had any relationship. Glasper did not see any guns before one was
pointed through the vehicle window while he and Shavondes were parked behind
Danaesha’s house. Glasper testified, “I don’t play with guns. My sister died from
a gun.” When Glasper told another of his brothers after the killing that he was
afraid, Glasper testified it wasn’t that he was afraid of being charged, but of having
his life threatened.
We conclude Birden did not prove by a preponderance of the evidence
Glasper was somehow involved in Shavondes’s murder. We find it is highly
unlikely that the jury would have found Glasper to be an accomplice.
Consequently, we find no error on the trial court’s part in instructing the jury only
Danaesha could be found an accomplice whose testimony must be corroborated.
See State v. Parker, No. 21-0414, 2022 WL 2160677, at *3 (Iowa Ct. App. June
15, 2022).9
9 In Parker, the court acknowledged the victim, Hoffman, was in the defendant’s
truck because he knew the alleged accomplice, Clayton, but concluded, “There is
a lack of evidence that Clayton intended to murder and rob [Hoffman.]” 2022 WL
21606677, at *3. The court concluded “uncontested evidence from Clayton and
Gonzalez suggested that Clayton intended to work with Hoffman to sell drugs in
Creston,” and “Clayton reached out to a friend asking if Hoffman could stay at the
19
Motion for New Trial. Birden contends the trial court erred in denying his
motion for new trial based on the weight of the evidence. Iowa courts have the
discretion to grant a new trial when “the verdict is contrary to law or evidence.”
Iowa R. Crim. P. 2.24(2)(b)(6). Our supreme court has held the phrase means
“contrary to the weight of the evidence.” State v. Ellis, 578 N.W.2d 655, 659 (Iowa
1998). “In contrast to a motion for new trial brought under the sufficiency-of-the-
evidence standard, a motion for new trial brought under the weight-of-the-evidence
standard essentially concedes the evidence adequately supports the jury verdict.”
Ary, 877 N.W.2d at 706. The weight-of-the-evidence standard “is broader than the
sufficiency-of-the-evidence standard in that it permits the court to consider the
credibility of witnesses.” Id. “A verdict is contrary to the weight of the evidence
only when ‘a greater amount of credible evidence supports one side of an issue or
cause than the other.’” Id. (citation omitted). Birden contends the trial court failed
to independently evaluate the credibility of the witnesses. He seeks a remand for
reconsideration applying the proper standard.
In ruling on the motion for new trial, the court stated:
As to the request to have a new trial based on the weight of
the evidence, the court is using the weight of the evidence standard
and specifically the Ellis standard, 578 N.W.2d 655 (Iowa 1998).
That test is greater than the sufficiency of the evidence test because
it involves questions of credibility and requires the district court to
determine whether more credible evidence supports one side or the
other. Trial courts are cautioned to exercise this discretion carefully
and sparingly because of the deference owed to the jury’s credibility
determinations.
In this particular case, in looking at the weight of the evidence
and the credibility, there is more credible evidence on the side that
friend’s residence while he was in Creston,” which “is inconsistent with Clayton
knowing about or participating in the murder and robbery.” Id.20
Mr. Birden was involved. Starting first, obviously, with the motive and
the reason behind it, including in there that even though Ms. Martin
seemed to want to distance herself, she admitted that she was the
one who set up Shavondes Martin for this meeting, that she was
aware that he was going to be killed. There’s the evidence that
includes the Facebook and phone messaging. There is the evidence
that Mr. Glasper says they were sitting outside and two men walked
up and he believed the voice to be that of Mr. Birden and that then
those two individuals took Mr. Birden down the alleyway and he was
shot multiple times. The fact that then you have Mr. Birden, Mr.
Coffer, and Danaesha Martin going to Cedar Rapids and driving
around and getting out of town and their activity down there. Looking
at all of that evidence as well as giving deference to the jury’s
decision on the credibility, which is solely their responsibility to find,
the court finds that the weight of the evidence does support the jury's
verdict in this matter.
(Emphasis added.)
The correct standard when considering the motion for new trial requires the
court make its own credibility determination. Id. While initially reciting the correct
standard, the court then twice deferred to the jury’s credibility determination. We
vacate the ruling on the motion for new trial and remand for application of the
correct standard. If, after applying the correct standard, the district court
determines the motion for new trial should be overruled, then judgment should be
affirmed. Conversely, if the district court grants the motion for new trial, the
judgment and sentence shall be vacated and a new trial granted. We express no
opinion as to whether the verdict is supported by the weight of the evidence.
CONVICTION CONDITIONALLY AFFIRMED, SENTENCE VACATED,
AND REMANDED FOR FURTHER PROCEEDINGS.