                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-1425
                             Filed October 24, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ISAIAH ZACHARIAS,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, Joel A.

Dalrymple, Judge.



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

AFFIRMED.




      Nicholas J. Einwalter of Einwalter Law, Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney

General, for appellee.



      Considered by Doyle, P.J., Mullins, J., and Mahan, S.J.

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2018).
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MAHAN, Senior Judge.

          Several people conspired to order Chinese food for delivery to an

abandoned house and then rob the delivery driver at gunpoint using a BB gun.

Police collected evidence implicating several juveniles and Isaiah Zacharias.

Interviews of those suspects provided consistent stories that Zacharias was the

mastermind behind the plan. The State charged Zacharias and the conspirators

with robbery in the second degree.1 Zacharias’s case proceeded to trial, and the

jury found him guilty as charged. The district court denied his motions for judgment

of acquittal and in arrest of judgment.

          Zacharias appeals, claiming (I) there was insufficient evidence to

corroborate the accomplice testimony and prove his participation in the crime and

(II) the district court abused its discretion in sentencing him. Upon our review, we

affirm.

I.        Corroboration of Accomplice Testimony

          Zacharias contends the State produced insufficient evidence to corroborate

the incriminating testimony of his alleged accomplices. According to Zacharias,

given the inadequacy of other evidence tying him to the robbery, the district court

erred in denying his motion for judgment of acquittal. The question is whether the

accomplice testimony is sufficiently corroborated as required by Iowa Rule of

Criminal Procedure 2.21(3), which provides:

          A conviction cannot be had upon the testimony of an accomplice or
          a solicited person, unless corroborated by other evidence which shall

1
  The trial information also charged Zacharias with burglary in the third degree, stemming
from his involvement in a separate crime that occurred the day after the robbery. The
court granted Zacharias’s motion to sever the charges, and he subsequently entered a
guilty plea on that charge. He does not appeal from that conviction.
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      tend to connect the defendant with the commission of the offense;
      and the corroboration is not sufficient if it merely shows the
      commission of the offense or the circumstances thereof.

This rule serves two purposes: “(1) to independently connect the defendant to the

crime; and (2) to counterbalance the dubious credibility of a witness whose

testimony may be motivated by self-interest in casting the blame elsewhere.” State

v. Taylor, 557 N.W.2d 523, 527–28 (Iowa 1996).

      “The existence of corroborating evidence is a legal question for the

court.” State v. Bugely, 562 N.W.2d 173, 176 (Iowa 1997).          Once the legal

adequacy of the corroborating evidence is established, the question of the

sufficiency of the evidence is for the jury to determine. Id. Challenges to the

sufficiency of evidence to corroborate an accomplice’s testimony are reviewed for

errors at law. Taylor, 557 N.W.2d at 525.

      “Any corroborative evidence which tends to connect the accused with the

commission of the crime and thereby supports the credibility of the accomplice is

sufficient.” State v. Vesey, 241 N.W.2d 888, 890 (Iowa 1976). “Corroborative

evidence need not be strong, nor must it confirm every detail of the accomplice’s

testimony. But it must furnish some material fact tending to connect the defendant

to the crime, lending support to the accomplice’s credibility.” Taylor, 557 N.W.2d

at 527. “A small amount of corroborative evidence is all that is required.” State v.

Wagner, No. 01-1232, 2002 WL 1758180, at *5 (Iowa Ct. App. July 31, 2002).

      The record in this case includes the following facts. On January 8, 2016,

sometime around 7:00 p.m., East China in Waterloo received an order for $105 of

Chinese food. The caller instructed the delivery driver to bring the food to 1935

Mulberry Street with change for $200. Upon his arrival to the house, the driver
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encountered a female who asked him to come inside to receive payment. When

the driver refused, a male exited and asked him to go to the back door for payment.

As the driver followed the male to the back of the house, he saw another male,

with his face covered, holding a gun. Three men then rushed toward the driver,

took the $95 from his pocket, and shot him several times in the back. The gun

turned out to be a BB gun, and the driver was able to retreat to his vehicle as his

assailants ran away.     A neighbor’s security camera depicted five individuals

running away from the house down an alley. Footprints in the snow trailed to a

cell phone belonging to one of the males, later identified as K.S., and a bag of

Chinese food.

       Brenda Kinkaide owns 1935 Mulberry Street. In January 2016, the house

was uninhabited; its last occupant, Kinkaide’s daughter, had recently moved out.

Kinkaide recalled an occasion in December 2015 when she stopped by the house

while her daughter was at work and found the door open and two uninvited women

there. Kinkaide recognized one of the women as Isaiah Zacharias’s girlfriend.

When Kinkaide kicked them out of the house, Zacharias came to pick them up.

       Police located suspects and conducted interviews of K.S., T.G., R.B., and

N.H.A., who told consistent stories that Zacharias came up with the plan to rob the

delivery driver because “he just got laid off from his job” and “he was tired of being

broke.” Police also learned Zacharias and K.S., T.G., R.B., and N.H.A. chose to

have the food delivered to 1935 Mulberry Street because it “was abandoned.” K.S.

brought latex gloves for everyone to wear, and he called in the food order using an

app so the phone number was not traceable. N.H.A., the only female of the group,

was supposed to answer the door “[s]o it doesn’t look suspicious that a bunch of
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males are standing there waiting for him.” Zacharias told T.G. “to be the lookout,”

while R.B., K.S., and Zacharias would “attack him.” R.B. brought the BB gun, and

Zacharias grabbed the money from the driver during the attack. After the robbery,

Zacharias divided the $95, and the group ran to K.S.’s house where they stayed

until Zacharias decided they all needed to split up.

          Police interviewed Zacharias. He said he did not know K.S., T.G., R.B., or

N.H.A., and he stated he had been at his father’s house “all day.” Zacharias further

stated he had not called anyone that day. Police spoke to Zacharias’s father, who

said Zacharias was not home until between 9:00 and 10:00 p.m. His father also

said he received a call from Zacharias from an unknown number. Police confirmed

Zacharias called his father from N.H.A.’s phone that evening. After changing his

story several times, Zacharias eventually admitted to being present at the time of

the robbery.2

          Here, Zacharias’s statements to police were corroborative of the

accomplice testimony.           Cf. Wagner, 2002 WL 1758180, at *5 (holding the

defendant’s “false statement to Officer Perley, that he and D.B. were in the parking

lot because they were looking for D.B.’s lost dog, is corroborative of D.B.’s

testimony because it is itself an indication of guilt”); see also State v. Cox, 500

N.W.2d 23, 25 (Iowa 1993) (noting that a false story by a defendant to explain or

deny a material fact against the defendant is by itself an indication of guilt). The

district court found as such:

                In this particular case, I’m not going to outline all of them, but
          the defendant’s out-of-court statements are such that they’re
          corroborative in nature; that the case law suggests that a false

2
    At trial, the jury watched a video of Zacharias’s interview with police.
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       statement to officers, and in this case we have at least two false
       statements if not three, but admittedly on his part two false
       statements before he goes to his third and final statement, and that
       a defendant’s false statement to an officer is—can be considered
       corroborative . . . .

       The court also noted “there’s other things I believe here that are

corroborative in nature.” Indeed, N.H.A. testified Zacharias called his father from

her phone on the evening of the robbery; Zacharias’s father stated he received a

call from Zacharias from an unknown number that night. And K.S.’s phone records

showed a text message from “Isaiah Zacharias boss man” was deleted from his

phone at 7:33 p.m. that evening.

       The corroboration rule “is met if it can fairly be said the accomplice is

corroborated in some material fact tending to connect the defendant with the

commission of the crime.” Vesey, 241 N.W.2d at 890. Based on the evidence set

forth above, we conclude there was evidence in addition to the accomplice

testimony tending to connect Zacharias with the commission of the robbery.

Accordingly, the district court did not err in finding sufficient corroborative evidence

to submit the case to the jury.

II.    Sentencing Decision

       Zacharias contends the district court abused its discretion “by sentencing

him to a term of incarceration that included a mandatory seventy-percent minimum

prison sentence as opposed to a mandatory minimum sentence of fifty percent.”

Zacharias acknowledges the court imposed a sentence “within the legal options

before it,” but he claims it was “clearly unreasonable given the individual factors

presented in this case.” Zacharias points to mitigating factors, such as the fact

that he was nineteen years old at the time of the crime (“While technically an adult,
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it was clear that [he] still had a lot of maturing to do.”) and the fact that he did not

physically assault the victim (“[H]e merely held [the victim] and took the money

[but] was not involved in attacking [the victim] with the BB gun.”). We review

sentences within the statutory limits for an abuse of discretion. State v. Roby, 897

N.W.2d 127, 137 (Iowa 2017).

       The district court considered these, and other, mitigating factors in imposing

Zacharias’s sentence. The court also considered aggravating circumstances,

such as Zacharias’s criminal history, which included “an adjudication for a robbery

in the first degree”; the “very serious, heinous nature of this offense,” including “the

fact that the victim in this particular case was, despite being compliant, was shot

and shot repeatedly”; and the risk that Zacharias’s “continued contact with society

poses a danger.”      The court also expressly noted its consideration of the

sentencing factors contained in Iowa Code section 901.11(3) (2016).

       We conclude the court appropriately exercised its discretion in finding the

aggravating circumstances outweighed the mitigating circumstances and

concluding a harsher sentence was therefore appropriate. We find no abuse of

discretion and affirm Zacharias’s sentence.

       AFFIRMED.
