State of Iowa v. Jermaine Gregory Miller ( 2023 )

IN THE COURT OF APPEALS OF IOWA
No. 22-0832
Filed July 26, 2023
STATE OF IOWA,
Plaintiff-Appellee,
vs.
JERMAINE GREGORY MILLER,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Jeffrey D. Bert, Judge.
Jermaine Miller appeals his criminal convictions. AFFIRMED.
Jamie Hunter of Dickey, Campbell & Sahag Law Firm, PLC, Des Moines,
for appellant.
Brenna Bird, Attorney General, and Olivia D. Brooks and Thomas J. Ogden,
Assistant Attorneys General, for appellee.
Heard by Ahlers, P.J., Badding, J., and Mullins, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2023).
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MULLINS, Senior Judge.
Jermaine Miller appeals his convictions—following a bench trial—for first-
degree robbery, conspiracy to commit a forcible felony, first-degree theft, going
armed with intent, assault while participating in a felony, and assault while
displaying a dangerous weapon. He challenges the sufficiency of the evidence
supporting each conviction, argues the court erred in overruling his objection to the
admission of his seized clothing as evidence, and claims the court abused its
discretion in denying his motion for a new trial “on the ground that he did not
receive a fair trial.”
I. Background Facts and Proceedings
On December 5, 2019, Adam Dugan was working alone at a Davenport
Verizon cell phone store. At around 7:14 p.m., he “was robbed at gunpoint.” He
explained that as he was counting out the drawer, two men wearing masks came
into the store. He didn’t think much of the masks since it was cold out, but then he
“saw the gun.” The men told him to put his hands up and “cattled [him] into the
back room, in which then they opened a safe door and then told [him] to lie down
on the ground.” As the masked duo loaded up a trash bag with merchandise, “they
would double back and either put the gun to [Dugan’s] back or the back of [his]
head.” On one occasion, one of the individuals placed the gun to the back of
Dugan’s head and advised the other: “This motherfucker looks like he wants to
move.” Dugan testified he feared for his life and thought he might be shot. After
a short time, the duo exited the back door with their loot.
3
A series of videos that were captured by the store’s interior surveillance
system and admitted as evidence at trial show the following.1 The first video shows
the interior entry of the store, through which the perpetrators entered at roughly
7:14 p.m. One—who we will refer to as Mr. Green—was wearing a dark green
hooded jacket or windbreaker with the hood up, black pants, black shoes, and what
appears to be a black ski mask. The other—Mr. Blue—donned black pants; black
shoes; an unzipped black, full-zip hooded sweatshirt with the hood pulled up over
a blue hooded underlayer garment, and some sort of face covering.
The second and third videos were captured by cameras behind the counter
and over the showroom. These vantage points capture Dugan’s work space as
well as the front door area shown in the first video. The videos show that as Mr.
Green approached the counter from the entry way, he pulled a firearm from his left
pant pocket, pointed it at Dugan, and gestured him to come out from behind the
counter. Mr. Green then led the way to the back room. Mr. Blue, with one hand
on Dugan’s back and the other in his pocket, led Dugan into the back room in a
pushing fashion.
The final two videos show the back room. Consistent with the other videos,
Mr. Green, Mr. Blue, and Dugan entered the back room not long after 7:14 p.m.
Mr. Green immediately points the firearm at Dugan’s head and gestured him to the
ground. Meanwhile, Mr. Blue opened the safe, locked the door to the room,
grabbed a large black garbage bag or two, and began unloading the contents of
the safe into the bags. As Mr. Blue unloaded the safe, Mr. Green largely kept his
1 None of the videos have audio.
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firearm pressed to Dugan’s back. Mr. Green and Mr. Blue exited the back door of
the store about a minute after they entered the back room.
Not long after they left, one of the two customers who the videos show
entered the store while the safe was being unloaded knocked on the door to the
back room, which prompted Dugan to get up off the floor and respond. After
apparently explaining the situation to the customers, Dugan called the police. The
value of the items taken from the safe totaled $22,516.70. Dispatch reported the
armed robbery and identified the suspects as two black males in ski masks.
Various officers were already nearby on a report of a shooting and responded to
the area in short order.
After responding to the area, Officers Ryan Leabo and Murphy Simms of
the Davenport Police Department were advised by dispatch that a 911 call was
received from 1725 Locust Street “that a black male was walking through yards
and that they thought it was suspicious.” Officer Leabo testified they then observed
a black male wearing a blue hooded sweatshirt, black pants, and black shoes
walking eastbound in the 1800 block of Locust Street. They pulled up next to him
and exited their squad car, upon which the subject “fled on foot.” Officer Leabo
testified the subject “ran south across Locust Street, and then, continued south in
an alley to the west of Davie Street, and then, back east through a couple houses.”
The following image depicts where Officer Leabo recalled originally seeing the
subject on the corner of Locust Street and Wilkes Avenue marked with an X, the
path he took in fleeing shown by a dotted line, and where he was apprehended
shown by a circled X on Davie Street. It also shows the location of the Verizon
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store in the southwest corner of Locust and Division Streets, marked with a blue
icon.
The fleeing subject was identified as Miller. Officer Leabo was later directed by
detectives investigating the Verizon incident to collect Miller’s clothing when he
was booked into jail on a separate charge of interference with official acts. He did
so and placed those items in evidence. Those items included a blue Nike hooded
sweatshirt, a black tee shirt he wore underneath, a black pair of jeans, a black pair
of pajama pants he had on under the jeans, and a black pair of boots.
Officers Nate Kelling and Kevin Remley were the first to respond to the
Verizon store. Officer Kelling testified that while they were speaking with Dugan,
“[a] call came in a block away to the west, there was a male walking back and forth
in the alley.” Officer Kelling looked in that direction to see if he could see anything,
and he observed a male subject walking on the sidewalk on the north side of Locust
Street. Another squad car approached that male, apparently being Officers Leabo
6
and Simms, upon which the subject fled southeast on foot. Officer Kelling gave
chase to cut him off and was ultimately the first officer to reach the subject, Miller,
after he surrendered. Miller reported to Officer Kelling that he was just in the area
to buy marijuana. The following image depicts where Officer Kelling testified he
thought he first observed Miller,2 what direction he fled to, and where he was
apprehended on Davie Street.
Officer Randy Hegg and his partner were a few blocks away from the store
when the call went out about the robbery around 7:15 p.m. After they turned west
on 17th Street from Division Street while they were canvassing the area, they “saw
a black male walking out of” an alley a few blocks southwest of the store. The
2 Officer Kelling could not recall specifically where Miller was located when he first
saw him, and he may have been east or west of Wilkes Avenue.
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following image shows the officers’ course of travel, with an X showing where they
saw the male coming out of the alley.
That individual was detained and identified as Lynn Brooks. A search of his person
didn’t turn up anything. Officer Hegg searched the alley he came out of. In the
rear of the residence circled on the above image, Officer Hegg found a black pistol
placed on top of a garbage can near the garage and two black garbage bags
containing multiple phones that were brand new and still in their boxes.
Officer Simms, who had been riding with Office Leabo, was “flagged down”
by Sara Hipsman after Miller was placed into custody. Hipsman testified she was
parked in the alley west of Davie Street by her boyfriend’s house. While parked,
she observed “someone standing behind one of the garages further down the
alley” and, since she was on “high alert” due to her knowledge of a shooting earlier
that day, she decided to call it in because “it looked out of place.” She testified the
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person was standing and appeared to be holding a duffel bag. After she called the
police, she saw a second person come around the corner and run southbound
toward 17th Street. She said that person was holding something and threw it. She
“assumed it was a gun,” but couldn’t be sure because it was dark. The person she
originally saw went west toward Wilkes Avenue through a yard. The following map
shows an X where Hipsman testified she was parked, a circle with a directional
line showing where the first individual she saw proceeded to Wilkes Avenue, and
a triangle where she initially saw the second person.
Hipsman later added that both individuals originally came down the alley
from the area of Locust Street and proceeded south. Both had their hoodies up.
She testified she thought the circle was a black male wearing “a gray jacket or
hooded sweatshirt,” and the triangle was wearing “a blue jacket, hoodie.” After
9
Hipsman interacted with officers, she was taken near the Verizon store to
potentially identify suspects, but she didn’t recognize any of them.
Detective Craig Stone was assigned to investigate the robbery. He met with
Miller the night of the robbery and took photographs of him. Those photographs
show Miller was wearing a blue hooded sweatshirt, black jeans, and black boots.
Investigator William Thomas reviewed the case and, after comparing the video
evidence with the photos taken by Detective Stone, testified the person in the video
was wearing the same hooded sweatshirt, shoes, and pants that Miller was when
he was taken into custody.
On the morning of December 6 at roughly 9:45 a.m., Officer Robert Bytnar
was dispatched in response to a call from a woman who reported she received a
message from Brooks through social media requesting her to pick him up and give
him a ride to the area of Locust and Wilkes. Officer Bytnar referred her to
detectives and began looking around the area near the Verizon store. In the front
bushes of an unoccupied home located at 1725 Davie Street, Officer Bytnar found
a green jacket, a black sweatshirt, a gray long-sleeved tee shirt, a black mask, and
two black stocking caps. The house at which the items were found is circled on
the following map.
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Ultimately, Miller was charged by trial information with (1) first-degree
robbery, (2) conspiracy to commit a forcible felony, (3) first-degree theft, (4) going
armed with intent, (5) dominion and control or possession of a firearm by a felon,
(6) assault while participating in a felony, and (7) assault while displaying a
dangerous weapon.3
The evidence is undisputed that Brooks was the person brandishing the gun
at the Verizon store. Turning to evidence about the identity of the second
participant, Miller’s fingerprints were found on the garbage bags in which the
phones were located. Furthermore, messages from Miller’s Facebook account
show he spoke with various individuals about trying to “make some bread” by
3 With the exception of counts two and five, each charge pled the statutes for aiding
and abetting and joint criminal conduct.
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“doing phones.” In one, he messaged another individual questioning: “Wya[4] tryna
do these phones wit me.” He messaged another individual, “trynna make some
money.” When asked how, Miller advised, “Phones.” When the other individual
advised he or she already did Sprint and AT&T, Miller stated, “Verizon then.” Miller
advised yet another individual: “By getting these phones for me Ima pay you and
pay for the phones.” He told another individual, “Ima pay you to put these phones
in yo name.” Miller messaged several others about trying to “make some bread”
by “doing phones.”
After hearing the State’s evidence, Miller testified he “had just come from
buying some weed” when the officers approached him on the night in question.
He said the officers didn’t find any drugs on him because it probably fell out of his
pocket. He said he didn’t know the individuals who pulled up on him were the
police, and he ran because there had “been a lot of shootings going on” and he
“didn’t know what to expect.” He noted he stopped running and surrendered after
one of them cut him off and he realized he was a police officer. He also explained
when he was walking through the alley between Wilkes and Davie on his way to
buy marijuana, he saw “a guy, he sits a bag down, and he cuts through the house,
like in between the house, like he was looking for something.” Miller said he looked
through this black trash bag that contained boxes, decided to leave it there, and
then “continued walking on [his] way.” Miller denied being in the Verizon store with
Brooks. As to his Facebook messages, Miller explained:
4 “WYA is an acronym that means where you at, and it is used mostly in texting
and social media.” WYA, Dictionary.com, https://www.dictionary.com/e/acronym
s/wya/ (last visited July 21, 2023).
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So pretty much, I was messaging people to see if they would
put a phone in their name. I told them I would pretty much pay them
and pay for the phones. I never said anything about, like stealing the
phones. All they had to do is pretty much get approved, like credit-
wise. I don’t have good credit, so I was trying to get them to use their
credit I guess.
....
It would be my phone, because I’m technically, paying them
for the phone, and I’m paying them for getting the phone. I’m paying
for the phone, too, so it would be my phone. It would just be in their
name.
During Miller’s testimony, the State admitted a certified record of Miller’s
prior conviction for armed robbery in Illinois in February 2019, which also involved
robbing an employee of a Verizon store of currency and various cell phones.
Following a bench trial, the court found Miller guilty as charged on all counts
except possession of a firearm by a felon. The court specifically found Miller’s
explanation for his prints being on the garbage bags not credible and essentially
determined the only reasonable conclusion that could be drawn from the evidence
was that Miller and Mr. Blue were the same person. The court explained the
clothes Miller was wearing in the photos taken at the police station in comparison
to the clothes worn by Mr. Blue in the videos and the still photo taken therefrom
shared “undeniable similarities,” namely the identical shoes and “the way the jeans
hug Miller’s body.” The court also highlighted the quick response by the police,
Miller’s vicinity in the area, his flight, and the absence of others in the area, except
Brooks. The court also found Miller’s “prior conviction to be probative for purposes
of impeachment as well as to show identity and opportunity.” Lastly, the court
noted Miller’s Facebook messages served as circumstantial evidence of his
involvement.
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Miller filed a motion for a new trial, claiming, among other things, he did not
receive a fair trial due to (1) testimony from Hipsman that was beyond the minutes
of evidence and (2) the admission of “evidence illegally obtained by the State,”
namely his clothing. The motion was heard at the time of sentencing, at which
point Miller raised an additional claim concerning purported newly discovered
evidence—Brooks’s supposed statement to law enforcement that he was with
someone else during the robbery. Defense counsel essentially conceded the
complaint about the seizure of clothing should have been raised in a pre-trial
motion to suppress. The State responded any error was harmless because the
clothes were depicted in other photographic evidence. The State added
Hipsman’s testimony was consistent with the minutes of evidence. Agreeing with
the State, the court denied the new-trial motion. At sentencing, the court merged
Miller’s conviction for conspiracy with his conviction for robbery. On the robbery
conviction, the court sentenced Miller to twenty-five years in prison with a
mandatory minimum of fifty percent and ordered the prison sentences on all other
counts to run concurrently.
Miller appeals.
II. Analysis
A. Admission of Clothing
Before delving into Miller’s challenges to the sufficiency of evidence, we first
address his claim that “the district court erred in overruling [his] objection to his
illegally seized clothing.” During trial, the State requested to admit the clothing
Miller was wearing when he was booked into jail. The defense objected for the
following reasons: (1) “the only way he fit the description at that time was a black
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male,” (2) there was no probable cause to arrest him at that time for interference
because he may not have known the contacting officers were the police, and (3)
he had not yet been charged with the robbery. The court overruled the objection.
In his motion for a new trial, he argued “[t]he officers did not have probable cause
or authority to seize his clothing.” On appeal, Miller only claims his clothes were
illegally seized without probable cause.
Miller seems to acknowledge this claim should have been raised by a pre-
trial motion to suppress. See Iowa R. Crim. P. 2.11(2)(c); State v. Ortega,
No. 19-1948, 2021 WL 1907132, at *3 (Iowa Ct. App. May 12, 2021) (noting
challenges to admission of evidence based on illegal seizure “must be made by
pretrial motion to suppress”). While Miller hints at good cause for raising the issue
late, see Iowa R. Crim. P. 2.11(3), that issue was not litigated below and is
therefore waived and not preserved. See State v. Hrbek, 336 N.W.2d 431, 435
(Iowa 1983) (finding failure to “allege or establish good cause for having failed to”
file a motion to suppress amounts to waiver of the objection). To the extent Miller
argues his counsel was ineffective on this front, he also seems to acknowledge
such a claim must be brought in a postconviction-relief proceeding and cannot be
considered on direct appeal. See Iowa Code § 814.7 (2020).
In any event, even alleged constitutional error does not entitle Miller to relief
if we are “able to declare it harmless beyond a reasonable doubt.” State v.
Gibbs, 941 N.W.2d 888, 900 (Iowa 2020) (citation omitted). Here, we declare that
to be the case. The evidence was merely cumulative of basically identical
evidence that was actually even more probative than Miller’s physical clothes. See
State v. Newell, 710 N.W.2d 6, 27 (Iowa 2006) (finding harmless error based on
15
cumulative evidence). Specifically, photographs of Miller actually wearing the
identifying clothing were admitted as evidence, without objection. They showed
how the clothing fit Miller in comparison to how the clothing fit Mr. Blue in the video
evidence and still photo taken therefrom. As the district court later stated in ruling
on Miller’s motion for a new trial, the physical clothes themselves were
insignificant.
Finding this issue should have been raised by a motion to suppress, the
issue of good cause for the late filing was waived and not preserved, and the
alleged error was harmless beyond a reasonable doubt, we affirm on this point.
B. Sufficiency of Evidence
Miller challenges the sufficiency of the evidence supporting his convictions
on all counts. We review challenges to the sufficiency of evidence for errors at
law, giving deference to the verdict, which binds us if it is supported by substantial
evidence. State v. Cahill, 972 N.W.2d 19, 27 (Iowa 2022). We view “the evidence
‘in the light most favorable to the State, including all reasonable inferences that
may be fairly drawn from the evidence.’” State v. Ortiz, 905 N.W.2d 174, 180
(Iowa 2017) (quoting State v. Huser, 894 N.W.2d 472, 490 (Iowa 2017)). All
evidence is considered, not just that of an inculpatory nature. See Huser, 894
N.W.2d at 490. A verdict will be upheld if substantial evidence supports it. State
v. Wickes, 910 N.W.2d 554, 563 (Iowa 2018). “Evidence is substantial if, ‘when
viewed in the light most favorable to the State, it can convince a rational [factfinder]
that the defendant is guilty beyond a reasonable doubt.’” Id. (quoting State v.
Ramirez, 895 N.W.2d 884, 890 (Iowa 2017)). Evidence is not rendered
insubstantial merely because it might support a different conclusion; the only
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question is whether the evidence supports the finding actually made. See State v.
Jones, 967 N.W.2d 336, 339 (Iowa 2021).
1. Error preservation
Before addressing Miller’s specific challenges to the sufficiency of the
evidence, we first address a claim he makes within this overarching argument,
specifically that “the district court considered [his] prior conviction for an improper
purpose.” Miller agrees he did not object to the admission of his prior conviction
at trial, and our review of the record discloses he did not raise the claim he is
raising on appeal in the district court—that the court considered it “as evidence of
identity and opportunity” rather than solely for impeachment—either in his motion
for new trial or otherwise. For these reasons, the State submits Miller has failed
to preserve error. Miller responds in his reply brief that “no further error
preservation was required,” but he does not meaningfully explain why. At oral
argument, Miller essentially took the position that the district court was required to
analyze the evidence on its own motion, despite the lack of an objection, and
determine for what purpose it could be considered. We side with the State for the
following reasons.
First of all, we acknowledge defendants need not preserve error on
sufficiency-of-evidence challenges. See State v. Crawford, 972 N.W.2d 189, 202
(Iowa 2022). But just because Miller labels his claim as one of the sufficiency of
the evidence does not mean that’s what it is. See Lee v. State, 815
N.W.2d 731, 739 (Iowa 2012) (noting “[w]e will not exalt form over substance”
when considering error preservation). Rather, the issue concerns a question of
the permissible use of the evidence as prior bad acts under Iowa Rule of Evidence
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5.404(b), which is an issue that must be preserved. See State v. Mulvany, 603
N.W.2d 630, 633 (Iowa Ct . App. 1999); see also Iowa R. Evid. 5.103(a)(1) (noting
a party may only claim evidentiary error upon a timely objection or motion to strike
accompanied by the specific ground for the objection or motion). While Miller
requested exclusion of 5.404(b) evidence in his pre-trial motion in limine, the court
never explicitly entered a ruling on the paragraph of the motion that addressed
such evidence. Even if that paragraph had been granted, Miller basically agreed
to admission of the prior conviction and offered no reservations about it at trial.
See State v. Hales, No. 19-2028, 2021 WL 211128, at *3 (Iowa Ct. App. Jan
21. 2021) (“[A] stipulation to the admission of [evidence] at trial constitutes a waiver
of any objection to the [evidence] raised prior to trial.”).
“It is a fundamental doctrine of appellate review that issues must ordinarily
be both raised and decided by the district court before we decide them on appeal,”
and “[w]e will not consider an evidentiary complaint unless the complaining party
made their ‘specific objection’ to the evidence ‘known’ in the district court, and the
court had the ‘opportunity to pass upon the objection and correct any error.’” State
v. Trane, 948 N.W.2d 429, 434–35 (Iowa 2023) (citations omitted). Here, Miller
did not object to the evidence, and he did not raise a complaint after the court
noted in its verdict that it found the evidence probative on identity and opportunity.
As a result, the court did not have an opportunity to correct the alleged error, so
neither will we. See State v. Hanes, 981 N.W.2d 454, 460 (Iowa 2022) (noting
appellate courts are courts “of review, not of first view” (citation omitted)).
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2. Identity
Generally, as to all counts, Miller argues the evidence was insufficient to
show he was one of the individuals who participated in the crimes. He points out
that the only recovered ski mask had Brooks’s DNA, he was wearing “standard
attire” when arrested, the black coat did not contain his DNA, no witness identified
him, he ran toward the scene of the crime, his fingerprints were not located at the
scene, he explained why his prints were on the garbage bags and why phones
would be of no value to him, and no connection was established between him and
Brooks.
It’s true that this was a case of circumstantial evidence. But “circumstantial
evidence is as probative as direct evidence.” State v. Brimmer, 983
N.W.2d 247, 256 (Iowa 2022). And, here, there was a lot of it. Specifically, in the
days leading up to the crimes, Miller talked to several individuals about making
money doing phones. One of those messages noted the scheme would be done
at Verizon, where the robbery took place. Miller was apprehended in the area just
minutes after the robbery, after he fled from police, wearing clothes matching the
individual in the videos, save the dark jacket that was found discarded nearby and
a face covering. While Miller maintained he did not know he was running from
police, we give due deference to the district court’s finding that his explanations
lacked credibility. See State v. Wilde, 987 N.W.2d 486, 491 (Iowa Ct. App. 2022).
He only surrendered after he was cut off by another officer coming from the
direction he was heading. And while Miller ran somewhat toward the Verizon store,
he seemed to acknowledge in his testimony he didn’t know his way around the
area very well.
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Comparing the videos and still photos with the photographs of Miller at the
jail, one could reasonably conclude the shoes and pants were identical. The blue
hoodie Miller was wearing at jail was also strikingly similar to the portions of the
hoodie that can be seen in the videos. Of particular note, it’s the exact same color.
Even more compelling, when Mr. Blue walked into the store, the draw strings of
his hoodie can be observed in the video to swing out from under his top jacket,
with the left string being longer than the right. That circumstance is also present
in the photo of Miller at the jail. And the similarities between Miller’s build and
physique when compared to Mr. Blue are undeniable. Finally, Miller’s fingerprints
were found on the garbage bags in which the looted inventory was found and,
again, we defer to the district court’s rejection of Miller’s explanation for that. See
id.On our review, we find the State provided substantial evidence that Miller
and Mr. Blue are indeed the same person and, therefore, his identity was
established beyond a reasonable doubt.5
3. First-degree robbery
As to robbery specifically, Miller argues “the State failed to demonstrate that
[he] had knowledge of a dangerous weapon,” so he cannot be guilty under an
aider-and-abettor theory. As the State points out, “in 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
5 As to first-degree theft and assault while participating in a felony, Miller only
challenges the sufficiency of evidence supporting identity, so we need not address
those convictions separately below.
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would be or was being used.” State v. Henderson, 908 N.W.2d 868, 876
(Iowa 2018). The evidence is sufficient to show Miller, at the very least, knew a
dangerous weapon was being used. Brooks pulled it out as soon as they entered
the store and waved it around, and the masked duo continued the robbery. We
affirm the robbery conviction.
4. Conspiracy to commit a forcible felony
Turning to conspiracy, Miller repeats his identity claim and additionally
argues there was “no evidence of any agreement or communication between [him]
and Brooks.” Given that the conspiracy conviction merged with the robbery
conviction and we have already found the evidence to support the latter conviction
sufficient, this challenge is moot. See State v. LuCore, 989 N.W.2d 209, 219 (Iowa
Ct. App. 2023). In any event, given how the crime was quickly executed as shown
in the videos, we find the evidence sufficient to show Miller and Brooks agreed to
engage in the conduct constituting the crime and Miller agreed to aid in the
planning and commission of the crime. See Iowa Code § 706.1(1).
5. Going armed with intent
As to going armed with intent, Miller argues “there was no evidence that
[he] was aware that Brooks possessed a firearm” or “of an intent [by Brooks] to
actually use or shoot the firearm.” Under the aider-and-abettor theory, the State
had to prove that Miller “either shared the requisite specific intent or knew of
[Brooks’s] mental state before or at the time the offense was committed.” State v.
Pearson, 547 N.W.2d 236, 241 (Iowa Ct. App. 1996). And “the ‘intent to use’
element requires proof of an intent to shoot another person when a firearm is
involved.” State v. Slayton, 417 N.W.2d 432, 434 (Iowa 1987).
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As noted above, the evidence is sufficient to show Miller knew Brooks
possessed a firearm at the time of the crimes. So we turn to whether he shared
or had knowledge of the requisite intent on the part of Brooks. Specific “intent is
seldom capable of direct proof, but may be shown by reasonable inferences drawn
from the facts established.” See State v. Chatterson, 259 N.W.2d 766, 769–70
(Iowa 1977). The only limitation on inferences provided by section 707.8 is that
the requisite intent “shall not be inferred from the mere carrying or concealment of
any dangerous weapon itself, including the carrying of a loaded firearm.” But here,
Brooks did much more, and the evidence shows it was part of he and Miller’s
calculated plan of attack. Specifically, Brooks pointed the gun at Dugan
immediately upon walking into the store. Following that lead, Miller “cattled” Dugan
into the back room, advising: “Go. Go. Get in the back room. Don’t mess around.”
Once there, Brooks held the gun on Dugan while Miller collected the merchandise,
during which Brooks advised: “This motherfucker looks like he wants to move.”
Viewing the video, a reasonable conclusion is that this was all according to the
plan. And we know the firearm had one round in the chamber and four in the
magazine.
In Slayton, the defendant simply “grabbed a shotgun and a single shotgun
shell from the garage and entered his parents’ bedroom while they were sleeping.”
417 N.W.2d at 433. The supreme court first noted the statute requires an intent to
discharge a firearm at another person as opposed to merely using it to frighten,
intimidate, or harass another with no intent to discharge. Id. at 434–35. Viewing
the evidence in the light most favorable to the State, the court found the evidence
sufficient to support the intent element. Id. at 435. The court explained the
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defendant, before his father subdued him, pointed the shotgun at his parents and
chased after his mother while placing a shell in the gun. Id. In the supreme court’s
view, “[a] reasonable jury could infer from this evidence that defendant intended to
use the shotgun against his parents by shooting them.” Id.In Slayton, it could be assumed the defendant would have discharged the
firearm on another if his father had not subdued him. Here, we are dealing with
somewhat of an inverse situation, with a condition precedent—Dugan’s lack of
compliance, as signaled by Brooks’s insinuation that he shouldn’t move while
Brooks was holding the gun to him—triggering the actual discharge of the firearm
at Dugan. And the video evidence does not indicate Miller was phased by that
implied course of action during the window of time that Brooks would have said it,
when Dugan was face down with a gun to his back and head.
Viewing the evidence in the light most favorable to the State, as we must,
on this evidence we find a rational factfinder could reasonably conclude that
Brooks intended to use the firearm and Miller either shared that intent or knew of
Brooks’s intent before or at the time of the offense. While we acknowledge that
merely using a firearm to frighten, intimidate, or harass another with no intent to
discharge is insufficient to establish the intent-to-use element, the evidence here,
when viewed in the light most favorable to the State, showed more than mere intent
to frighten, intimidate, or harass. Rather, it showed an intent to use if Dugan did
not comply. And the evidence shows Miller knew of Brooks’s mental state in that
regard at the time the offense was committed, at the very least. As such, we find
the evidence sufficient to support the conviction under an aider-and-abettor theory.
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6. Assault while displaying a dangerous weapon
As to this conviction, Miller argues “there was no evidence that [he] did
anything to aid or abet [Brooks’s] possession of a gun.” We summarily agree with
the State that it “offered substantial evidence that Miller knew of the assault and
encouraged it by continuing to do his part of the armed robbery.” As such, we
reject Miller’s challenge to this conviction.
C. Motion for New Trial
Lastly, Miller challenges the denial of his motion for a new trial. We reject
his claim as to the seizure of his clothing for the same reasons noted above.
Specifically, the district court found—even if it were to ignore the fact that the issue
should have been raised by a pre-trial motion to suppress—the physical clothing
had little to no “significance in terms of the decision.” We agree.
For his claim about “newly discovered evidence that included codefendant
Brooks making a statement to a police officer that he was with someone other than
Miller,” that claim was not actually raised in Miller’s written motion for a new trial.
Defense counsel did raise this issue at the hearing on the motion, however, noting
Miller advised him “right before this hearing” that “[i]n discovery” it was learned that
Brooks told a police officer that he was with another individual during the night in
question. The State responded Brooks was probably lying if he made that
statement, and it was aware “of at least two subsequent statements that Mr.
Brooks made directly implicating Mr. Miller.” On appeal, Miller only argues “[t]his
relevant, exculpatory information only became known to [him] and his counsel just
prior to the sentencing hearing.” But he does not specifically argue how it entitles
him to a new trial. In any event, the record indicates this supposed statement by
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Brooks was disclosed during discovery, so it cannot be said Miller was not “aware
of the evidence prior to the verdict.” See State v. Uranga, 950 N.W.2d 239, 243
(Iowa 2020). While counsel argued at the hearing that Miller would not have been
unable to present this evidence because Brooks was a codefendant awaiting trial,
the record does not disclose that he made any “affirmative attempt to . . . offer the
evidence into the record.” Id. Furthermore, a movant for a new trial based on
allegedly new evidence must also show “that such evidence will probably change
the result if a new trial is granted.” State v. Compiano, 154 N.W.2d 845, 850 (Iowa
1967). We conclude Miller failed to make that showing, so we affirm the denial of
the motion for a new trial on this point.
That leaves us with Miller’s claim that Hipsman’s testimony went beyond
the minutes of evidence. He submits the minutes of evidence “state that Hipsman
saw a single ‘black male wearing a gray jacket or hooded sweatshirt near the
middle of the alley’ who then ran west” and she “‘observed Miller running through
the alley being chased’ by officers approximately three minutes later.” Turning to
Hipsman’s trial testimony, he complains she additionally “testified that she actually
saw the individual hold a bag and later throwing an object, which may have been
a gun.”
First, we agree that because Miller did not object to Hipsman’s testimony at
trial, his challenge thereof in his motion for a new trial was too late to preserve
error. See State v. Droste, 232 N.W.2d 483, 488 (Iowa 1975) (finding claim raised
on appeal did “not serve to preserve for review in this court the issue presented”
because “[t]he grounds of a motion for new trial must stand or fall on exceptions
taken at trial and a party cannot in a post verdict motion amplify or add new
25
grounds as a basis for relief”). Either way, while it is true the minutes of evidence
did not disclose every detail that Hipsman testified to at trial, “there is no
requirement that the minutes . . . provide a complete catalogue of witness
testimony at trial, but only that the defense be placed on fair notice and not subject
to surprise testimony.” State v. Shorter, 893 N.W.2d 65, 81 (Iowa 2017). The
minutes at least poised Hipsman as a witness located in a critical area, which
placed the defense “on notice of the necessity of further investigation of the
witness’[s] probable testimony.” Id. (alteration in original) (citation omitted). Miller
acknowledges he did not conduct depositions. To the extent he faults counsel for
that, his remedy, if any, is by postconviction relief. We affirm the denial of Miller’s
motion for a new trial on this ground as well.
III. Conclusion
We affirm Miller’s convictions.
AFFIRMED.