                    IN THE COURT OF APPEALS OF IOWA

                                    No. 14-0055
                                Filed May 20, 2015


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DAEVONE RASHAD BROWN,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Polk County, Robert J. Blink,

Judge.



       The defendant appeals from the judgment and sentence entered upon his

conviction of second-degree robbery. CONVICTION AFFIRMED, SENTENCE

VACATED, AND REMANDED FOR RESENTENCING.



       Nicholas A. Bailey of Bailey Law Firm, P.L.L.C., Altoona, for appellant.

       Thomas J. Miller, Attorney General, Katie Fiala, Assistant Attorney

General, John P. Sarcone, County Attorney, and Jim Ward, Assistant County

Attorney, for appellee.



       Considered by Danilson, C.J., Vaitheswaran, J., and Eisenhauer, S.J.*

       *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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EISENHAUER, S.J.

       Daevone Brown appeals from the judgment and sentence entered upon

his conviction of second-degree robbery.        He contends there is insufficient

evidence to support a guilty verdict. Brown also contends the court erred in

imposing a mandatory minimum sentence because Brown was a minor at the

time the crime was committed.

       I. Background Facts and Proceedings.

       On January 28, 2013, Lyndsey Buckley reported Brown and Andrew

Buchanan had robbed her of $1277. She stated a gun was held to her head and

one of the men threatened to kill her if she called the police. Buckley repeated

her version of events to another officer on the day in question and once more

three days later. Those statements were consistent.

       The State charged both Brown and Buchanan with first-degree robbery, in

violation of Iowa Code sections 711.1 and 711.3 (2013).           Because he was

charged with a forcible felony, Brown was prosecuted as an adult even though he

was seventeen years old at the time the crime was committed. See Iowa Code

§ 232.8(1)(c). Brown initially pleaded guilty to amended charges of first-degree

theft, assault while participating in a felony, and going armed with intent. He later

filed a pro se motion in arrest of judgment, which the court granted, and the

original charge of first-degree robbery was reinstated.

       Brown and Buchanan were tried together in November 2013.              At trial,

Buckley recanted the statements she had given police in January 2013. She

testified she was angry with Brown because she thought he was seeing another

woman. In her new version of events, Buckley claimed she owed Brown money
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and considered his act of taking the $1277 a repayment on the loan. She further

testified she lied to the police when she stated a gun was held to her head.

Despite the change in Buckley’s version of events, the jury found both Brown and

Buchanan guilty of robbery in the second degree. Brown was sentenced to an

indeterminate term of no more than ten years in prison and was ordered to serve

at least seven-tenths of that sentence. See Iowa Code §§ 902.9, .12.

       II. Sufficiency of the Evidence.

       Brown first contends the court erred in denying his motion for judgment of

acquittal because there is insufficient evidence to support a conviction for

second-degree robbery. We review his claim for a correction of errors at law.

See State v. Robinson, 859 N.W.2d 464, 467 (Iowa 2015).              “Evidence is

sufficient to withstand a motion for judgment of acquittal when, viewing the

evidence in the light most favorable to the State and drawing all reasonable

inferences in the State’s favor, there is substantial evidence in the record to

support a finding of the challenged element.” State v. Milom, 744 N.W.2d 117,

120 (Iowa Ct. App. 2007) (internal quotation marks and citation omitted).

       In order to find Brown guilty of second-degree robbery, the jury was

instructed the State had to prove the following:

              1. On or about the 28th day of January, 2013, the defendant
       Daevone Rashad Brown, or someone he aided and abetted had the
       specific intent to commit a theft.
              2. To carry out his or another’s intention or to assist him in
       escaping from the scene, the defendant, or the person or persons
       he aided and abetted:
              a. Committed an assault upon Lyndsey Buckley, and/or
              b. Threatened Lyndsey Buckley with, and/or purposely put
       Lyndsey Buckley, in fear of immediate serious injury.
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Brown notes Buckley is the only witness who could offer a firsthand account of

what occurred and asserts her testimony “falls far short” of establishing the

elements of second-degree robbery.

       We find substantial evidence in the record supports Brown’s conviction of

second-degree robbery. We note our earlier opinion concluding the evidence

presented at trial was sufficient to support Buchanan’s second-degree robbery

conviction. State v. Buchanan, No. 13-1999, 2015 WL 162028, at *2 (Iowa Ct.

App. Jan. 14, 2015) (noting that although Buckley changed her version of the

facts at trial, a rational factfinder could find her original version of events, which

satisfied the elements of second-degree robbery, was more credible). We affirm

on the same basis.       The statements Buckley made to law enforcement in

January 2013 establish the elements of second-degree robbery. Although her

statement changed at trial, the jury was not bound to accept her trial testimony.

See State v. Frake, 450 N.W.2d 817, 818-19 (Iowa 1990). When confronted with

two different versions of events, the jury’s determination of the facts “would likely

be based upon the credibility of the witness.” Id. The function of the jury is to

weigh the evidence and determine witness credibility. State v. Shanahan, 712

N.W.2d 121, 135 (Iowa 2006).

       III. Sentence.

       Brown also challenges the imposition of the mandatory minimum sentence

given his age at the time the crime was committed. In State v. Lyle, 854 N.W.2d

378, 404 (Iowa 2014), our supreme court held article I, section 17 of the Iowa

Constitution “forbids a mandatory minimum sentencing schema for juvenile

offenders that deprives the district court of the discretion to consider youth and its
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attendant circumstances as a mitigating factor and to impose a lighter

punishment by eliminating the minimum period of incarceration without parole.”

Because Brown challenges the constitutionality of his sentence, our review is de

novo. See Lyle, 854 N.W.2d at 382.

       We note Lyle does not prohibit the court from imposing a minimum

sentence; rather, the court must use its discretion to consider youth and its

attendant circumstances as a mitigating factor. Id. at 404. Therefore, before

imposing a minimum sentence, the court must determine the following factors

warrant a minimum period of incarceration without parole:

       (1) the age of the offender and the features of youthful behavior,
       such as “immaturity, impetuosity, and failure to appreciate risks and
       consequences”; (2) the particular “family and home environment”
       that surround the youth; (3) the circumstances of the particular
       crime and all circumstances relating to youth that may have played
       a role in the commission of the crime; (4) the challenges for
       youthful offenders in navigating through the criminal process; and
       (5) the possibility of rehabilitation and the capacity for change.

Id. at 404 n.10.

       Brown argues the court failed to exercise its discretion in sentencing him

to a minimum period of parole. Because the sentencing hearing was held in

December 2013, the district court did not have the benefit of the Lyle opinion

when sentencing Brown. During the sentencing Brown argued the mandatory

sentence was unconstitutional, and in response, the court stated, “Well, my

interpretation of the law right now, Mr. Brown, is that the mandatory minimum

must be imposed.” Brown argues this statement makes it obvious the district

court felt it had no discretion.
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       The court did not stop its analysis with its statement of belief “the

mandatory minimum must be imposed”; rather, it went on to give some other

reasons for imposing the minimum sentence:

       So in reviewing the PSI and having heard the evidence in this case,
       assuming for the sake of argument that I am wrong and you are
       correct, it is this Court’s view that the rehabilitation potential for
       Mr. Brown is limited. Certainly, it is lessened. And, for whatever
       reason, Mr. Brown, at a very young age, has demonstrated a
       significant willingness to disregard the rights, the feelings, and the
       safety of others. And so, to that extent, if an individualized decision
       has to be made under these circumstances, those are the
       observations that I make.

However, the court did not explicitly consider each of the factors set forth in Lyle

and prior juvenile sentencing opinions. Given the heightened requirements of

Lyle, we conclude remand is required for a hearing to consider “all the relevant

factors and facts of the case.” Id.

       We vacate the sentence and remand for a new sentencing hearing to

consider the factors set forth in Lyle.

       CONVICTION AFFIRMED, SENTENCE VACATED, AND REMANDED

FOR RESENTENCING.
