                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-1845
                               Filed March 9, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

MARK EUGENE ROBINSON,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Polk County, Michael D. Huppert,

Judge.



      A defendant appeals his conviction for robbery in the second degree.

CONVICTION       CONDITIONALLY         AFFIRMED;     RULING       ON   MOTION

VACATED; REMANDED WITH DIRECTIONS.




      Mark C. Smith, State Appellate Defender, and Theresa R. Wilson,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Kevin Cmelik and Martha E.

Trout, Assistant Attorneys General, for appellee.



      Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
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TABOR, Judge.

         In this appeal from his conviction for second-degree robbery,1 Mark

Robinson alleges the State did not offer sufficient proof he assaulted a clerk to

carry out his intent to steal cigarettes from a convenience store.               He also

contends the district court applied the wrong standard to his motion for a new

trial. We conclude substantial evidence supports his robbery conviction, but we

vacate the court’s ruling on Robinson’s motion for new trial and remand for a

determination of whether the verdict was against the weight of the evidence.

    I.      Facts and Prior Proceedings

         The jury could have found the following facts from the State’s evidence

presented at trial. On the evening of January 1, 2014, Mark Robinson drove

away in a Ford Taurus that the owner had left idling in the Forest Mart parking lot

on University Avenue in Des Moines. About half an hour later, Robinson entered

the Kum & Go on Hickman Road and asked the clerk working behind the counter

for two cartons of cigarettes.

         The clerk—who was working alone—retrieved the cartons, scanned in the

prices, and rang up the sale. She kept her hand on the cartons while Robinson

tried to swipe his credit card.      Robinson could not complete the transaction

because he held the card upside down. The clerk suggested he turn it around,

but instead of reswiping the card, Robinson lunged toward her.                 The clerk

testified Robinson “almost jumped over the counter”—grabbing the cigarette



1
 Robinson also appeals from his conviction for operating a motor vehicle without the
owner’s consent, but neither issue raised in his appellant’s brief challenges that offense.
Accordingly, that conviction will stand undisturbed.
                                         3



cartons out of her hand. The clerk recalled being scared and, in response to

Robinson’s sudden movement, she “jumped back, not knowing what he [was]

going to do.”

         After taking the cartons from the clerk, Robinson placed one hand in his

pocket—acting “like he had a weapon” to harm her—and demanded more

cigarette cartons. He ordered her to “give me two more right fucking now.” The

clerk complied with his demand, and he ran out of the store.          Investigators

retrieved the surveillance video from several cameras positioned around the

convenience store.      The prosecution presented the video to the jury during

Robinson’s trial. The jury convicted Robinson of robbery in the second degree.

The district court sentenced Robinson to an indeterminate ten-year prison term

with a seventy-percent mandatory minimum. He challenges only his robbery

conviction on appeal.

   II.      Scope of Review

         We review Robinson’s challenge to the sufficiency of the evidence for

correction of legal errors. See State v. Keeton, 710 N.W.2d 531, 532 (Iowa

2006). If the robbery verdict is supported by substantial evidence, we will uphold

it. See id. We consider evidence to be substantial if it would convince a rational

jury that the accused is guilty beyond a reasonable doubt. Id. It is not enough

for evidence to raise suspicion or speculation, and we consider all evidence in

the record, both inculpating and exculpating. Id. But in our substantial-evidence

review, we take the evidence in the light most favorable to the State, including all

fair inferences reasonably deduced from the testimony and exhibits. Id.
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          We also review for legal error Robinson’s claim that the district court failed

to apply the proper weight-of-the-evidence standard in ruling on his motion for

new trial. See State v. Root, 801 N.W.2d 29, 30 (Iowa Ct. App. 2011).

   III.      Analysis

          Robinson attacks his robbery conviction in two ways. First, he claims the

district court erred in overruling his motion for judgment of acquittal. Second, he

contends the district court applied an incorrect standard to his motion for a new

trial. We will address each claim in turn.

          A. Sufficiency of the Evidence

          Robinson argues the State fell short of proving the assault element of

robbery. He contends the prosecution did not show he had the specific intent to

assault the store clerk or committed an overt act necessary to complete the

assault.

          1. Error Preservation

          Before launching our analysis, we must decide if defense counsel’s motion

for judgment of acquittal preserved error as to the issues raised on appeal.

Defense counsel advanced the following argument:

                  At this time the defendant would move for a judgment of
          acquittal . . . . With regard to the charge of robbery in the second
          degree, it is required as part of the elements . . . that the defendant
          must have committed an assault. Assault is an act with the intent
          to cause pain or injury, an act with the intent to result in insulting or
          offensive contact, or an act that is done with the intent to provoke
          fear of insulting or offensive or painful or injurious contact.
                  Your Honor, I believe the State’s case has failed to prove the
          specific intent with regard to commit an assault on behalf of Mr.
          Robinson. . . . There is potentially a theft here. However, the
          State’s case fails in regard to the specific intent to commit an
          assault and as further broken down with the specific intent to
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       commit those specified acts that are set out in the statute that
       defines assault.

       In response, the prosecutor argued, based on the clerk’s testimony and

the store video, “there is more than sufficient evidence in the record to

demonstrate an assault on any one of those alternative options.”        The court

overruled the motion for judgment of acquittal.

       On appeal, the State allows that the motion preserved error on the intent

element of assault but contends it was not specific enough to preserve error on

the overt-act element. We find defense counsel’s mention of “specific acts,”

coupled with the prosecutor’s reference to the various assault alternatives,

preserved error as to the court’s ruling on both the intent and overt-acts elements

challenged on appeal.        Accordingly, we do not need to consider Robinson’s

alternative claim of ineffective assistance of counsel.

       2. Assault Element of Robbery

       The jury convicted Robinson of robbery in the second degree after

receiving the following marshalling instruction: “1. On or about January 1, 2014,

the defendant had the specific intent to commit a theft. 2. To carry out his

intention or to assist him in escaping from the scene, with or without the stolen

property, the defendant committed an assault on [the store clerk].” See Iowa

Code § 711.1(1) (2013) (defining robbery).        Robinson does not contest the

State’s proof of his specific intent to commit a theft. Instead, he focuses on the

second element—the commission of an assault to carry out his intent to complete

a theft of the cigarettes.
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       “We look to the definition of assault in section 708.1 to consider whether a

robbery occurred under section 711.1(1).” Keeton, 710 N.W.2d at 533. Iowa

Code section 708.1 defines assault in three alternatives:

              A person commits an assault when, without justification, the
       person does any of the following:
              (1) Any act which is intended to cause pain or injury to, or
       which is intended to result in physical contact which will be insulting
       or offensive to another, coupled with the apparent ability to execute
       the act.
              (2) Any act which is intended to place another in fear of
       immediate physical contact which will be painful, injurious, insulting,
       or offensive, coupled with the apparent ability to execute the act.
              (3) Intentionally points any firearm toward another, or
       displays in a threatening manner any dangerous weapon toward
       another.

       The third alternative is not at issue here because Robinson did not point a

firearm or display a dangerous weapon. The court instructed the jury concerning

the first two alternative definitions of assault, which both “contain specific intent

elements.” See State v. Beck, 854 N.W.2d 56, 64 (Iowa Ct. App. 2014). The

court defined specific intent for the jury as “not only being aware of doing an act

and doing it voluntarily, but in addition, doing it with a specific purpose in mind.”

       In addition to the intent element, assault requires proof of an overt act.

See State v. Heard, 636 N.W.2d 227, 230-31 (Iowa 2001) (defining overt act as

“an open, manifest act from which criminality may be implied” or as “an outward

act done in pursuance and manifestation of an intent or design”); see also State

v. Copenhaver, 844 N.W.2d 442, 451 (Iowa 2014). We consider the existence of

an overt act in light of all the circumstances surrounding it. See Copenhaver,

844 N.W.2d at 451; Heard, 636 N.W.2d at 232. The first two alternatives under

section 708 require different overt acts. Subsection (1) reflects the common law
                                          7



crime of battery, an act intended to result in painful physical contact. See State

v. Yanda, 146 N.W.2d 255, 255 (Iowa 1966).             Subsection (2) reflects the

common law crime of assault, a more preliminary act intended place another in

fear of immediate physical contact. See id. at 256 (describing an assault as “the

initial stage of an act which is aggravated by a battery”).

       The State points to the following overt acts indicative of Robinson’s intent

to assault the clerk: “He lunged over the counter, ripped the cigarette cartons

from [the clerk’s] hand, kept his hand in his pocket making her believe he had a

weapon, and cursed at her demanding more cigarettes.”

       Robinson argues the State’s evidence is inadequate to prove an assault.

He first points out that, unlike the perpetrators in Heard and Copenhaver, he did

not disguise his identity at the Kum & Go. See Copenhaver, 844 N.W.2d at 451;

Heard, 636 N.W.2d at 230-31.        He also draws a line between grabbing the

cigarette cartons from the clerk’s hands and touching the clerk.         Robinson

contends the surveillance video shows he may have been placing the credit card

into his pocket and not gesturing as if he had a gun. Finally, he plays down his

profane demand for more cigarettes as a “mere threat”—insufficient standing

alone to constitute an assault.

       We conclude when Robinson’s actions are viewed in context, rather than

parsed out separately, they constitute sufficient overt acts to prove the

commission of an assault. We also find his specific intent to commit an assault

may be inferred from the “circumstances of the transaction and the actions of the

defendant.” See Keeton, 710 N.W.2d at 534.
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       Initially, while wearing a mask may contribute to a finding of assault, it is

not a necessary prerequisite.2       Surveillance video and the clerk’s testimony

support a factual finding that Robinson suddenly lunged across the counter

toward the lone employee on duty, grabbing the cartons from her grasp, followed

by her immediate move backward to avoid contact.             Contrary to Robinson’s

implication, the fact he did not actually touch the clerk does not foreclose a

finding of assault. See id. at 535 (accepting description of assault as “a direct,

ineffectual act toward the commission of a battery”).

       Robinson then placed his hand in his pocket—leading the clerk to believe

he might be armed—and commanded her to turn over more merchandise “right

fucking now.” His actions are comparable to those found to constitute an assault

in other robbery cases. See, e.g., Copenhaver, 844 N.W.2d at 451-52 (walking

quickly toward teller and speaking in a demanding tone of voice using swear

words); Keeton, 710 N.W.2d at 534 (walking toward clerk with outstretched hand,

but pulling hand back to chest before making contact); Heard, 636 N.W.2d at 232

(demanding money from lone store clerk while in close proximity to her, even

without making physical contact).

       The clerk testified she was “scared” by Robinson’s aggressive actions and

“felt threatened” believing if she did not “give him what he wants he’s going to

hurt [her].” While we recognize her perceptions are not “dispositive,” we may

properly consider them in determining Robinson’s intent.            See Keeton, 710

N.W.2d at 535. We understand Robinson offers an innocent explanation for


2
  We note Robinson wore a knit cap, and while consistent with the winter weather, it did
limit the ability to identify him by length, color, or style of hair.
                                          9



placing his hand in his pocket, but the State’s case did not hinge on that piece of

evidence alone.    See id. (deciding multiple actions and inferences supported

finding of intent element of assault).    Viewing the evidence in the light most

favorable to the State, we conclude Robinson carried out overt acts and harbored

the requisite intent to commit assault as an underlying element of his robbery

offense. The court properly decided the evidence merited submission to the jury.

       B. Motion for New Trial

       In ruling on Robinson’s motion for a new trial under Iowa Rule of Criminal

Procedure 2.24(2)(b)(6), the district court was required to decide if the verdict

was against the weight of the evidence. See State v. Ellis, 578 N.W.2d 655, 659

(Iowa 1998) (remanding for reconsideration of the motion using a weight-of-the-

evidence, rather than a sufficiency, standard). Instead, the district court ruled:

              As to the evidentiary support upon which these motions are
       based, the Court takes the evidence at trial in the light most
       favorable to the State as the nonmoving party. The Court finds that
       there was sufficient evidence to allow this jury to conclude that all of
       the elements of the offenses, but specifically the robbery offense,
       were proven beyond a reasonable doubt.

Robinson asks for a remand with directions to apply the Ellis standard. The

State concedes a remand is necessary. We agree the case must be returned to

the district court for application of the weight-of-the-evidence standard.        See

Root, 801 N.W.2d at 31 (noting appellate courts “have repeatedly remanded to

make certain the proper standard was applied”).

       CONVICTION CONDITIONALLY AFFIRMED; RULING ON MOTION

VACATED; REMANDED WITH DIRECTIONS.
