                   IN THE COURT OF APPEALS OF IOWA

                                   No. 18-0764
                               Filed March 4, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ERIC DEWAYNE CAMPBELL Jr.,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Dubuque County, Thomas A. Bitter,

Judge.



      Eric Campbell Jr. appeals from his convictions for robbery in the first degree

and   voluntary manslaughter.        CONVICTIONS       AFFIRMED;       SENTENCE

VACATED AND REMANDED FOR RESENTENCING.



      John C. Heinicke, Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and Thomas E. Bakke, Assistant

Attorney General, for appellee.



      Considered by Bower, C.J., and May and Greer, JJ.
                                         2


GREER, Judge.

       A jury found Eric Campbell Jr. guilty of robbery in the first degree and

voluntary manslaughter. On appeal, Campbell maintains (1) there is insufficient

evidence to support his convictions, (2) the court abused its discretion in admitting

prior-bad-acts evidence, and (3) the court abused its discretion in sentencing him.

       I. Background Facts and Proceedings.

       A little before 2:00 a.m. on April 2, 2016, three men, carrying guns and

wearing bandanas partially covering their faces, broke into the home of Collin

Brown and Alecea Lombardi in Key West, Iowa, just south of Dubuque, and

demanded money and drugs. According to Lombardi, two of the men wore black

bandanas and the third wore a white one, and two carried black guns and one

carried “a silver-looking kind.” Brown escaped from the home and ran to his

neighbor’s, shouting “Police, 911.” One of the men shot Brown as he entered his

neighbor’s home. Brown died as a result of the wound. The three men fled the

scene before police arrived.

       Witnesses alleged Campbell was one of the men who broke into the home.

He was charged by trial information with murder in the first degree and robbery in

the first degree. After an initial mistrial, Campbell’s second trial took place from

February 27 through March 6, 2018. The jury convicted Campbell of the lesser-

included offense of voluntary manslaughter and robbery in the first degree.

       The court sentenced Campbell to a prison term not to exceed ten years for

the voluntary-manslaughter conviction and a term not to exceed twenty-five years

for the robbery conviction. The court ordered the two terms served consecutively.

Campbell appeals.
                                          3


       II. Analysis.

       A. Sufficiency of the Evidence. Campbell contends there is insufficient

evidence establishing he was the third man who broke into Brown’s home, citing

the State’s lack of forensic evidence. He also asserts the court should not have

permitted the jury to consider the accomplices’ testimony establishing his

participation in the crime because it lacked sufficient corroboration. Thus, without

the accomplice testimony, the remaining evidence cannot generate a fact question

about his participation in the crimes. See Iowa R. Crim. P. 2.21(3) (“A conviction

cannot be had upon the testimony of an accomplice or a solicited person, unless

corroborated by other evidence which shall tend to connect the defendant with the

commission of the offense.”).

       Campbell did not raise the specific issue of the alleged lack of corroboration

for the accomplice testimony to the district court in his motion for judgment of

acquittal. See State v. Brubaker, 805 N.W.2d 164,170 (Iowa 2011) (“To preserve

error on a claim of insufficient evidence for appellate review in a criminal case, the

defendant must make a motion for judgment of acquittal at trial that identifies the

specific grounds raised on appeal.” (citation omitted)). This issue has not been

preserved for our review. See State v. Bugely, 562 N.W.2d 173, 176 (Iowa 1997)

(noting,“The existence of corroborating evidence is a legal question for the court,”

and concluding that because corroborating evidence existed, “the trial court did not

err in overruling [the defendant’s] motion for judgment of acquittal”); State v.

Heidebrink, 334 N.W.2d 344, 346 (Iowa Ct. App. 1983) (“Defendant contends that

there was insufficient evidence to corroborate the testimony of the accomplice. . . .

We agree with the State that defendant has failed to preserve error on these issues
                                        4

by not challenging the sufficiency of the evidence at trial.”), overruled on other

grounds by State v. Abbas, 561 N.W.2d 72 (Iowa 1997).

      Campbell     did,   however,   challenge   whether    substantial     evidence

established his identity as one of the perpetrators of the crimes in his motion for

judgment of acquittal. “We review challenges to the sufficiency of the evidence for

correction of errors at law.” State v. Neiderbach, 837 N.W.2d 180, 190 (Iowa

2013). “The court views the evidence in the light most favorable to the State,

including all reasonable inferences that may be fairly drawn from the evidence.”

State v. Keopasaeuth, 645 N.W.2d 637, 640 (Iowa 2002). “[W]e will uphold a

verdict if substantial record evidence supports it.” State v. Sanford, 814 N.W.2d

611, 615 (Iowa 2012) (alteration in original) (citation omitted).    “Evidence is

considered substantial if, when viewed in the light most favorable to the State, it

can convince a rational jury that the defendant is guilty beyond a reasonable

doubt.” Id. “Circumstantial evidence is equally as probative as direct evidence.”

Neiderbach, 837 N.W.2d at 216.

      No forensic evidence linked Campbell to the crime scene. None of the

recovered DNA, fingerprints, or footprints were Campbell’s.               But strong

circumstantial evidence established Campbell was the third man in the robbery.

Corby Yager testified that she was with Campbell on the evening of April 1, 2016,

when he told her he “needed to catch a stain.”1 Yager, who knew Brown to sell

drugs, suggested Brown as a target to Campbell. Campbell then used Yager’s


1 According to Yager’s testimony, “stain” is slang for robbery. See also Stain,
Urban      Dictionary,     https://www.urbandictionary.com/define.php?term=Stain
(providing “[r]ob someone, usually for drugs,” and “[t]o come up, rob someone,” as
the top two definitions for “stain”).
                                          5


phone—Campbell did not have one of his own—to call for a ride to “scope out

Collin Brown’s place.” Yager rode with Campbell and two others to Brown’s home.

Yager directed the driver, Adriana Chica, to the location of Brown’s home.

Afterward, Yager left the group. Then, sometime between 2:00 a.m. and 3:00 a.m.

on April 2, Campbell called her. Campbell asked Yager to come over. When she

arrived at the apartment, Yager noted Campbell was “frantic . . . like, pacing back

and forth between the kitchen and the main room.”            According to Yager,

“[Campbell] said that everything went wrong, and I asked him what he meant, and

he said, ‘He got shot.’ I’m like, ‘Okay, what do you mean?’ And he said, ‘Tacari

[Minifee] shot [Brown].’” Campbell told Yager he heard the gun go off three to five

times and that he saw Brown fall but did not know if he was alive or dead.

         Similarly, Adrianna Chica testified she was in the apartment with Campbell

on April 1 when Campbell told Chica’s boyfriend, Jeremy Dukes, that Campbell

needed “to get a come-up quick.” Chica understood this to mean Campbell wanted

“to rob somebody, get the money out of them, get something out of them.” Soon

after, Chica and Dukes left the apartment. Later, Dukes received a phone call on

Chica’s phone,2 and the couple drove back to the apartment. Campbell and Yager

got in the car, and Chica drove the four of them by Brown’s home.            Chica

understood she was “picking them up to show them where a potential stain was

at” and realized Brown was the target. Chica and Dukes dropped Campbell back

at the apartment and went to Wal-Mart. When Chica and Dukes arrived back at

the apartment at around 1:20 a.m., they learned from Savanna Stotlar, Campbell’s



2
    Dukes did not have his own phone.
                                          6


girlfriend, that “[Campbell] and whoever he brought with him” could not remember

which home was Brown’s. To show them the house, Chica and Stotlar met the

vehicle carrying the three men (and their driver) at McDonalds and led the car with

the men back to Brown’s house. Stotlar, who was driving the lead vehicle, used

her brake lights to convey which home was Brown’s when they drove past. The

women then returned to the apartment, finding Dukes there when they arrived.

Campbell and Minifee arrived at the apartment fifteen to thirty minutes later.

According to Chica, Campbell “sounded panicked.” A short while later, Chica

“heard [Campbell] say that they fucked up, that it wasn’t supposed to happen like

that, and . . . then he said, ‘Buddy might not make it.’”

       Viewing the evidence in the light most favorable to the State, substantial

evidence supports that Campbell participated in the crimes.

       B. Admission of Photo Exhibit. Next Campbell maintains the trial court

abused its discretion in admitting prior-bad-acts evidence. Campbell challenges

admission of a photo police found on Minifee’s phone of Campbell and another

man. According to the metadata on the phone, the photo was taken in Dubuque

on March 27, 2016, less than one week before the crimes. In the picture, Campbell

is posing; the lower half of his face is covered with a black and white bandana and

he is standing pointing two guns—one black and one silver—at the camera.

       The State moved to admit the photo, noting Campbell, when originally

interviewed by law enforcement, stated he did not know Minifee (among others)

and had not been in Dubuque since sometime in 2013. And the State urged that

the picture, when considered along with the testimony that three men entered the

home with their faces covered with bandanas and with two black guns and one
                                         7


silver gun, showed “motive and opportunity.” Campbell asserted the State had

other photographs that established Campbell was in Dubuque in the days and

weeks before April 2 and had testimony of witnesses who established Campbell

spent time with the people he later denied knowing. The court questioned whether

the photo showed prior bad acts, noting “It’s not evidence of a crime. It’s not

discussion of him committing a crime. It’s a picture of someone holding guns with

a bandana on their face, and the possession of a weapon is not a crime.” The

court, considering the proximity between the date of the picture and the date of the

crime, found the photo relevant and “the prejudicial value . . . quite low.” While

Campbell asserted there was nothing in the State’s case linking the guns or

bandana in the photo to those worn by the three men, the court responded, “Well,

those may be issues for the jury to decide. They’re the deciders of fact, not all of

us.” The court admitted the evidence over Campbell’s objection.

       “We review evidentiary rulings regarding the admission of prior bad acts for

abuse of discretion.” State v. Putman, 848 N.W.2d 1, 7 (Iowa 2014). “Even if a

trial court has abused its discretion, prejudice must be shown before we will

reverse.” Id.

       The admission of prior-bad-acts evidence is governed by Iowa Rule of

Evidence 5.404(b):

       (1) Prohibited use. Evidence of a crime, wrong, or other act is not
       admissible to prove a person’s character in order to show that on a
       particular occasion the person acted in accordance with the
       character.
              (2) Permitted uses. This evidence may be admissible for
       another purpose such as proving motive, opportunity, intent,
       preparation, plan, knowledge, identity, absence of mistake, or lack of
       accident.
                                          8


The rule “exclude[s] evidence that serves no purpose except to show that the

defendant is a bad person, from which the jury is likely to infer he or she committed

the crime in question.” State v. Rodriguez, 636 N.W.2d 234, 239 (Iowa 2001).

“[E]vidence which is relevant to prove some fact or element in issue other than the

defendant’s criminal disposition escapes the rule’s prohibition.” State v. Cott, 283

N.W.2d 324, 326 (Iowa 1979).

       To be admissible, prior-bad-acts evidence (1) must be relevant to a

legitimate, disputed factual issue, such as identity, intent, or motive; (2) supported

by “clear proof the individual against whom the evidence is offered committed the

bad act or crime”; and (3) its probative value must not be “substantially outweighed

by the danger of unfair prejudice to the defendant.” See Putman, 848 N.W.2d at

9–10 (quoting State v. Sullivan, 679 N.W.2d 19, 25 (Iowa 2004)).

       The photo of Campbell with his face mostly covered and holding guns is

neither a crime3 nor an obvious “wrong.” See Iowa R. Evid. 5.404(b)(1). While

rule 5.404(b) also prevents “other acts” from being admitted to prove a person’s

character to show the person acted in accordance with the character, it is unclear

to us what Campbell believes the photo establishes about his character. Gun

ownership is not uncommon, and the photo itself does not show a criminal act by

Campbell. Still, we will undertake the prior-bad-acts analysis outlined above.


3 Campbell argues on appeal that the photo may depict going armed with a pistol,
in violation of Iowa Code section 724.5(1). And we are aware, based on the
presentence investigation report (PSI) available to the court at sentencing, that
Campbell was previously convicted of a felony and recognize it is possible
Campbell’s possession of guns violated Iowa Code section 724.26, which makes
it a crime for felons to possess firearms. But the jury was not informed of
Campbell’s previous conviction, and there was no indication made in court that the
pictured activity may be illegal.
                                         9


       First, we must determine whether the photo is relevant.        “Evidence is

relevant if: (a) [i]t has any tendency to make a fact more or less probable than it

would be without the evidence; and (b) [t]he fact is of consequence in determining

the action.” Iowa R. Evid. 5.401. We disagree with the State that the photo tends

to show motive. See Motive, Black’s Law Dictionary (11th ed. 2019) (“Something,

esp. willful desire, that leads one to act.”). But the fact that Campbell had, at a

minimum, access to weapons that matched the description of two of the weapons

used in the crimes less than one week later goes to opportunity and identity. See,

e.g., State v. Uthe, 542 N.W.2d 810, 814 (Iowa 1996) (deciding evidence the

defendant had a stolen checkbook in his possession two days after the last forged

check was written from it “tended to prove [the defendant] had the opportunity to

commit the crimes charged within the relevant time frame”); State v. Knox, 464

N.W.2d 445, 449 (Iowa 1990) (affirming the trial court ruling that the “defendant’s

prior possession of the alleged murder weapon” was admissible on the question

of identity and opportunity because of the “highly probative” nature of the

evidence). We acknowledge that the description of the guns carried by the three

men was vague—two black guns and one silver gun—and that no one specifically

linked the guns in the challenged photo to the crimes at issue. But, as the district

court recognized, that goes to the weight the jury should assign to the evidence,

not whether it is admissible.

       Second, we must consider whether there is clear proof it is Campbell in the

challenged photo holding the guns. See Putman, 848 N.W.2d at 9 (“There also

‘must be clear proof the individual against whom the evidence is offered committed

the bad act or crime.’” (citation omitted)).    In his appellate brief, Campbell
                                         10


characterizes the admitted photo as “a photograph of a man, purportedly

Campbell.” While we do not have Campbell sitting before us as the jury did when

the photo was published to it, we note that the officer who recovered the photo

from Minifee’s phone testified without objection that it was Campbell in the

photograph. Additionally, when challenging the admission of the photograph,

Campbell did not address the issue of “clear proof” to the trial court. We do not

consider this step of the analysis further.

       Finally, we must consider whether the probative evidence of the photograph

is substantially outweighed by the danger of unfair prejudice to Campbell.

Because the specific guns in the photo were never linked to these crimes, the

probative value of the photo is low. Similarly, while the State suggested the photo

was important to show Campbell was in the Dubuque area in the days before the

crimes and knew the other known participants in the crime, plenty of other

evidence established these facts. And, even more importantly, whether Campbell

was in Dubuque and knew the people involved in the crimes—something he

originally denied to law enforcement—was not a contested issue at trial. See

Sullivan, 679 N.W.2d at 25 (noting the court “must decide whether such evidence

is relevant to a legitimate factual issue in dispute”). Even so, as the district court

concluded, the danger of unfair prejudice from showing a photo of Campbell in

which he not doing anything illegal and with which there is not a narrative or story

about his character is minimal. We also find the State’s evidence strong on the

contested point, making any prejudicial effect of the challenged photograph

minimal. State v. Plain, 898 N.W.2d 801, 815–16 (Iowa 2017). The district court

did not abuse its discretion in admitting the challenged photo.
                                           11


       C. Sentencing. Campbell maintains the court considered improper factors

when imposing sentence. The judge who presided over Campbell’s second trial

also presided over his initial trial that resulted in a mistrial and was involved, at

least in some capacity, with the trials of Campbell’s codefendants.4 With that in

mind, Campbell asserts the sentencing court improperly considered evidence from

outside the record of this case in deciding to impose consecutive sentences.

       “Review of sentencing decisions is for correction of errors at law.” State v.

Letscher, 888 N.W.2d 880, 883 (Iowa 2016). “We will not reverse the decision of

the district court absent an abuse of discretion or some defect in the sentencing

procedure.” Id. (quoting State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002)).

       Here, the State, Campbell, and the court recognized that the sentences for

the voluntary-manslaughter and the first-degree-robbery convictions were

mandatory; the court’s discretion was whether to order Campbell to serve the

sentences concurrently or consecutively. The court stated:

       The only real issue for the parties to argue today and for me to give
       some thought to is whether these sentences should run concurrent
       to each other or consecutive to each other, and I want to mention a

4
   The record before us establishes the same judge presided over both of
Campbell’s trials. Campbell asserts in his appellate brief that the judge also
presided over the trials of his codefendants, but we do not have the record from
the codefendants’ trials and Campbell does not show how that fact is established
in the record properly before us. See Iowa Rs. App. P. 6.801 (limiting the record
on appeal to “[o]nly the original documents and exhibits filed in the district court
case from which the appeal is taken, the transcript of proceedings, if any, and a
certified copy of the related docket and court calendar entries prepared by the clerk
of the district court”); 6.903(2)(g)(3) (requiring the appellant’s brief to include “[a]n
argument containing the appellant’s contentions and the reasons for them with
citations to the authorities relied on and references to the pertinent parts of the
record . . . ”). But at Campbell’s sentencing hearing, the judge referenced having
heard some of the evidence at the “other sentencings” and, in an apparent
reference to the codefendants’ trials, stated, “Of all the trials that I’ve had and all
the evidence that I’ve seen and listened to . . . .”
                                   12


few things that sort of occurred to me as I weigh that decision about
consecutive versus concurrent.
         I—I have every reason to believe, and I do believe, Mr.
Campbell, that you did not intend for anyone to be shot or to be killed
in this incident. Your attorney made reference to the fact that you of
all people showed the most emotion about being bothered by what
happened, according to the testimony, and I believe that testimony.
I think that when this incident was over, the testimony was that you
paced, that you were upset, that you were emotional, and I do think
you were surprised by what happened. On the other hand, you were
clearly the person that organized this whole event. You were the
person who was told by someone not to bring Tacari out there
because of his disposition, his personality. You were the one that
got everybody together. You all put something on your faces, you all
had weapons, and you all kicked the door in to somebody’s
residence. You were told that if that vehicle was there, that likely
means Alecea and children would be there. You were one of the
people involved in holding Collin Brown down and beating him
physically, and your actions absolutely terrorized people that night.
And I’ve heard Alecea Lombardi speak both in her testimony and in
her victim impact statements at other sentencings. I’ve listened to
her voice on that 911 call, and it’s hard to unhear that or to get that
out of your head after you’ve heard it, especially so many times. She
was terrified. She was sobbing. She had her children with her, and
that was a horrible experience, and I said before when I ruled on the
motion for new trial that the evidence supported the findings by the
jury and your conviction on these two counts, and it certainly did, and
it probably supported something more serious than what you were
found guilty of, and to some extent, I consider you lucky, and you
should probably consider yourself lucky with what the jury found in
this case.
         You do not have a good criminal history at all. You’ve got a
significant criminal history. I believe in the PSI it says that you’ve
been to prison, I think, in the state of Illinois. It also makes reference
to a felony conviction, I think, in Iowa. It talks about a domestic
assault causing injury and impeding blood or airflow, what we call
strangulation. So it’s difficult to say for you that this was out of
character because it certainly wasn’t, and it was a calculated,
planned and very, very dangerous and violent offense. Those are all
the reasons why I cannot find enough good reason at all to run these
concurrent. I think they have to be run consecutive to each other,
and I think it’s appropriate to run them consecutive.
         I do also want to mention in the PSI, it was hard for me to read
your version of what happened in this event. Your version to the
drafter of the PSI essentially was it wasn’t you, you weren’t involved,
you shouldn’t have been charged, and if you were charged, you
shouldn’t have been convicted because you didn’t do it, you’re
                                          13

       innocent, and that was tough for me to read, and I don’t buy that. Of
       all the trials that I’ve had and all the evidence that I’ve seen and
       listened to, it was abundantly clear that you were there, you were the
       one that planned it and you were involved. Again, I don’t think
       anybody says you pulled the trigger, and I don’t think anybody says
       that you intended for that to happen. Nevertheless, you played a
       huge role in this.
              So I am going to run them consecutive to each other for all of
       the reasons that I’ve just indicated, including, but not limited to, your
       criminal history, the seriousness of this offense, and my
       consideration of the effect it had on the victims, the fact that this will
       promote deterrence in the community in general and the need to
       punish you and similar defendants for this type of action.

(Emphasis added).

       We agree with Campbell that the court considered improper factors in

imposing sentence. While Campbell was charged with murder in the first degree,

his conviction was for voluntary manslaughter.           The court cannot consider

unproven offenses in sentencing a defendant. State v. Sailer, 587 N.W.2d 756,

762 (Iowa 1998) (“This rule prohibits a sentencing court from imposing ‘a severe

sentence for a lower crime on the ground that the accused actually committed a

higher crime.’” (citation omitted)).     The court’s statement that the evidence

“probably supported something more serious than what you were found guilty of”

reveals the court’s belief Campbell was guilty of a higher crime than his conviction.

The court provided this as a reason it imposed consecutive sentences.

Additionally, the court cannot rely on evidence it heard at the trials and sentencing

hearings of Campbell’s codefendants in deciding the appropriate sentence for

Campbell. Campbell did not take part in those proceedings and could not either

confront or control the evidence admitted. Cf. Iowa Code § 901.4 (giving the

defendant, as the subject of the PSI, the opportunity to “file with the presentence

investigation report, a denial or refutation of the allegations, or both, contained in
                                        14

the report. The denial or refutation shall be included in the report”); State v.

Bentley, 739 N.W.2d 296, 302 (Iowa 2007) (“[The defendant’s] right to confront

witnesses against him is an essential constitutional right, and we must be vigilant

in guarding against its erosion.”). Because the court considered improper factors

in imposing sentence, we must remand for resentencing. See State v. Carillo, 597

N.W.2d 497, 501 (Iowa 1999).

      III. Disposition.

      Because sufficient evidence supports his convictions and the trial court did

not abuse its discretion in admitting a challenged photo, we affirm Campbell’s

convictions. However, the sentencing court relied on improper factors in imposing

sentence, and we remand for resentencing.

      CONVICTIONS AFFIRMED; SENTENCE VACATED AND REMANDED

FOR RESENTENCING.
