                    IN THE COURT OF APPEALS OF IOWA

                                   No. 18-0421
                             Filed November 6, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

KENNETH CURTIS SHAW,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Paul D. Scott, Judge.



      Kenneth Shaw appeals his conviction and sentence for first-degree

robbery in violation of Iowa Code sections 711.1 and 711.2 (2017). AFFIRMED

ON CONDITION AND REMANDED WITH DIRECTIONS.



      Mark C. Smith, State Appellate Defender, (until withdrawal), and Shellie L.

Knipfer, Assistant Appellate Defender, for appellant.

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

Attorney General, for appellee.



      Considered     by    Potterfield,   P.J.,   and   Tabor   and   Greer,   JJ.
                                           2


POTTERFIELD, Presiding Judge.

       Kenneth Shaw appeals his conviction and sentence for first-degree

robbery in violation of Iowa Code sections 711.1 and 711.2 (2017). Shaw was

sentenced to a twenty-five year prison sentence, with 70% mandatory

incarceration. On appeal, Shaw argues: (1) the State did not provide sufficient

evidence to show Shaw committed the robbery at issue; and (2) the jury pool was

not a fair cross-section of the community in violation of his rights under the Sixth

Amendment to the United States Constitution and Article I, section 10 of the Iowa

State Constitution.

   I. Factual Background and Proceedings

       This appeal relates to the March 1, 2017 robbery of Check Into Cash, a

payday loan company. Around 6 that day, the store manager Nicholas Harvey

was on the phone when a man entered the store and approached the counter.

The man requested Harvey break a ten dollar bill for him. When Harvey opened

the till to retrieve one dollar bills, the man pulled out a pistol and pointed it at him.

Harvey backed away from the till. The man came around to Harvey’s side of the

counter, grabbed the removable tray from the till, and threw the till on the floor.

He grabbed the money from the floor then left the store.

       Once the man left, Harvey ran to the back of the store and hit a panic

button that called the police.     Once the police arrived, Harvey identified the

robber as Shaw. Harvey had helped Shaw open an account and apply for a loan

at Check Into Cash in January and recognized him when he entered the store.

Harvey told the police what had happened and gave them a customer

information sheet Shaw had filled out when he applied for the loan.                 The
                                        3


customer information form included Shaw’s cellphone number, social security

number, and a photocopy of Shaw’s driver’s license.

      The Des Moines Police Department assigned the case to Officer Brad

Youngblut. Officer Youngblut created a six-person photo lineup, which included

Shaw and five other men similar in appearance to Shaw, and presented the

lineup to Harvey. Harvey identified Shaw as the perpetrator “[f]airly immediately.”

Officer Youngblut was eventually able to contact Shaw on March 5, through the

phone number Shaw had given Harvey. Shaw told Officer Youngblut he was

currently in Milwaukee and had been there at the time of the robbery. Officer

Youngblut asked Shaw to provide him with any physical proof that he was

presently in Milwaukee, but Shaw indicated he could not.

      After finishing the call, Officer Youngblut obtained a subpoena for Shaw’s

cellphone records. The records showed Shaw had returned his call from the Des

Moines area, in the vicinity of both Shaw’s home and Check Into Cash. The

records also showed Shaw was around the same area on the day of the robbery.

Officer Youngblut called Shaw back and confronted him with this information.

Shaw either ended the call or was disconnected and would not answer Officer

Youngblut’s subsequent attempts to contact him.

      A warrant was issued for Shaw’s arrest, and he was taken into custody on

April 18, after he was pulled over for a routine traffic stop. Shaw was charged

with first-degree robbery and pled not guilty. Jury selection was scheduled for

February 21, 2018, with the trial to begin the next day. Shaw moved to dismiss

the jury pool, arguing the panel did not represent “a cross-section of the

community and a fair racial makeup” under the Iowa Supreme Court’s decision in
                                                4

State v. Plain, 898 N.W.2d 801 (Iowa 2017). Only one of the forty-four jurors—

2.3% of the jury pool—identified as African American, despite African Americans

making up 6.8% of the population of Polk County, from which the jury pool was

drawn.1 Two other jurors did not identify their race. The trial court ultimately

denied the motion, noting that because over 25% of jurors called in Polk County

in 2017 (the most recent data available) declined to specify their race, “[t]here

was simply no way for the Court to make the determination that there is a

systematic underrepresentation of African Americans in our jury pool.”

          Shaw was found guilty of first-degree robbery and sentenced to a twenty-

five year prison sentence. He appeals.

      II. Standard of Review

          “We review constitutional issues de novo.” State v. Lilly, 930 N.W.2d 293,

298 (Iowa 2019). We review sufficiency of the evidence for corrections of errors

of law. Id.; Iowa R. App. P. 6.907. “Under this standard, we will affirm when the

verdict is supported by substantial evidence.” State v. Banes, 910 N.W.2d 634,

637 (Iowa 2018).         “Evidence is substantial when the quantum and quality of

evidence is sufficient to “convince a rational fact finder that the defendant is guilty

beyond a reasonable doubt.’” Id. (quoting State v. Webb, 648 N.W.2d 72, 76

(Iowa 2002)).         “In making determinations regarding the sufficiency of the

evidence, we ‘view the evidence in the light most favorable to the state,

regardless of whether it is contradicted, and every reasonable inference that may

be deduced therefrom must be considered to supplement that evidence.’” Lilly,

930 N.W.2d at 298 (quoting State v. Harris, 891 N.W.2d 182, 186 (Iowa 2017)).

1
    The parties do not dispute this statistic on appeal.
                                        5


   III. Discussion

      a. Sufficiency of Evidence

      Shaw argues the State provided insufficient evidence to convict him of

first-degree robbery. The State argues sufficient evidence was introduced. We

agree with the State.

      In essence, Shaw argues insufficient evidence was introduced to identify

him as the robber. He points to discrepancies between Shaw’s appearance and

the description of the robbery Harvey gave to the police. Shaw notes Harvey

initially described the robber as having acne scars on his forehead—which Shaw

does not have—and no facial hair, then saying at his deposition that the

perpetrator, like Shaw, had a goatee. These and other discrepancies, Shaw

argues, “give rise to a reasonable doubt” about the reliability of Harvey’s

testimony.

      Viewing the evidence in the light most favorable to the State, there is

sufficient evidence to support Shaw’s guilty verdict.        When reviewing a

sufficiency-of-the-evidence challenge, “we do not resolve conflicts in the

evidence, pass upon the credibility of witnesses, or weigh the evidence.” State v.

Hutchison, 721 N.W.2d 776, 780 (Iowa 2006). The jury was entitled to consider

Harvey’s testimony and give it the weight it felt appropriate.      Furthermore,

Harvey’s identification of Shaw as the perpetrator is supported by the video

evidence of the robbery and the day Shaw opened an account at Check Into

Cash, and his dishonesty to Officer Youngblut about his location on the day of

the robbery, which Youngblut testified to at trial. State v. Odem, 322 N.W.2d 43,

47 (Iowa 1982) (“A false story told by a defendant to explain or deny a material
                                           6


fact against him is by itself an indication of guilt.”). A rational jury could view this

evidence and believe the videos and Youngblut’s testimony identified Shaw as

the perpetrator.

       b. Composition of Jury Pool

       Shaw also challenges the composition of his jury pool. He argues his jury

pool failed to represent a fair cross-section of the community in violation of both

the United States Constitution and the Iowa State Constitution. Because Shaw

has not identified a separate framework to analyze a challenge to the jury’s racial

composition under the Iowa State Constitution, we will analyze both claims under

the federal framework. See In re Det. of Anderson, 895 N.W.2d 131, 139 (2017)

(“When a party does not suggest a framework for analyzing the Iowa Constitution

that is different from the framework utilized under the United States Constitution,

we apply the general federal framework. However, we reserve the right to apply

the federal framework in a different manner.”).

       The Sixth Amendment to the United States Constitution guarantees

criminal defendants “the right to a speedy and public trial, by an impartial jury of

the State and district wherein the crime shall have been committed.” U.S. Const.

amend. VI. This right “entitles the criminally accused to a jury drawn from a fair

cross-section of the community.” Plain, 898 N.W.2d at 821. Under Plain and the

United States Supreme Court’s decision in Duren v. Missouri, 439 U.S. 357

(1979), a defendant can establish a prima facie violation of the fair-cross-section

requirement by showing:

       (1) that the group alleged to be excluded is a ‘‘distinctive’’ group in
       the community; (2) that the representation of this group in venires
       from which juries are selected is not fair and reasonable in relation
                                            7


       to the number of such persons in the community; and (3) that this
       underrepresentation is due to systematic exclusion of the group in
       the jury-selection process.

Plain, 898 N.W.2d at 822 (quoting Duren, 439 U.S. at 364). Applying Plain, the

district court took “judicial notice of the fact that Mr. Shaw is an African-American”

and noted “I think we can all agree that African Americans are a distinctive group

in this community.” The State does not dispute that this prong of Plain/Duren test

has been met.2

       We skip over the second prong to address the third prong, which requires

a defendant “establish that systematic exclusion of the group caused the

underrepresentation of the group.” Plain, 898 N.W.2d at 823. “To establish


2
 The State concedes that African Americans are a distinct group within the meaning of
Plain/Duren, but it spends most of its brief addressing the principle Shaw need not be
part of a distinct group himself to challenge the racial composition of juries. The Iowa
Supreme Court said in Plain:

       a defendant must establish membership in a distinctive group under
       community standards meaning a community group with “a definite,
       objectively ascertainable membership” that “constitutes a substantial
       segment of the population” and has “common and unique opinions,
       attitudes, and experiences” that cannot be adequately represented by
       members of the general population.

Id. (citing Thomas M. Fleming, Age Group Underrepresentation in Grand Jury or Petit
Jury Venire, 62 A.L.R. 4th 859, 867 (1988)). “In other words, a defendant must show
she has ‘characteristics that are relevant to constituting a jury venire that is
representative of the community.’” Id. (quoting David M. Coriell, Note, An (Un)fair Cross
Section: How the Application of Duren Undermines the Jury, 100 Cornell L. Rev. 463,
480 (2015)). While Plain is binding precedent on us, the State correctly identifies that
this assertion is contradicted by the United States Supreme Court’s Sixth Amendment
precedent. See Holland v. Illinois, 493 U.S. 474, 477 (1990) (“We have never
suggested, however, that such a requirement of correlation between the group
identification of the defendant and the group identification of excluded venire members is
necessary for Sixth Amendment standing. To the contrary, our cases hold that the Sixth
Amendment entitles every defendant to object to a venire that is not designed to
represent a fair cross section of the community, whether or not the systematically
excluded groups are groups to which he himself belongs.”); Duren, 439 U.S. at 364
(concluding the first prong has been met where a male defendant challenges the
exclusion of female jurors from the jury pool).
                                            8


systematic exclusion, a defendant must establish the exclusion is ‘inherent in the

particular jury-selection process utilized’ but need not show intent.” Id. at 824

(quoting Duren, 439 U.S. at 366).

       On appeal, Shaw argues African Americans are systemically excluded

from the jury selection process, but does not point to any specific fault or practice

causing the exclusion apart from the process’s failure to use “additional

comprehensive source lists” when selecting jurors.            Shaw does not point to

evidence     demonstrating     how     these    practices    caused     the   systematic

underrepresentation of African Americans in the jury pool. Because Shaw has

failed “to show causation, that is, that underrepresentation is produced by some

aspect of the system,” he has not established a fair-cross-section claim under the

Sixth Amendment or Article I, section 10 based on the record.

       That being said, we note that, while Shaw’s appeal was pending, the Iowa

Supreme Court decided State v. Lilly, 930 N.W.2d 293 (Iowa 2019), and State v.

Veal, 930 N.W.2d 319 (Iowa 2019), which together clarified the second3 and

third4 prongs of the fair-cross-section analysis. Because Shaw did not have the


3
  The court approved the use of the standard deviation test to demonstrate the jury pool
did not fairly and reasonably represent a cross-section of the community, and adopted
different statistical standards to show underrepresentation under the Iowa Constitution
and United States Constitution. See Lilly, 930 N.W.2d at 301–02, 304 (holding a
defendant establishes the second prong of Plain/Duren under Article I, section 10 by
showing the percent of the group in the jury pool is “one standard deviation or more
below its percentage in the overall population of eligible jurors); Veal, 930 N.W.2d at 329
(requiring “a downward variance of two standard deviations” to meet the second prong of
Plain/Duren under the Sixth Amendment).
4
  The court determined standard jury management practices could constitute systematic
exclusion under the Iowa Constitution, but something more than a “laundry list” of
practices is needed to show exclusion under the United States Constitution. See Lilly,
930 N.W.2d at 308 (“[W]e hold today that run-of-the-mill jury management practices
such as the updating of address lists, the granting of excuses, and the enforcement of
jury summonses can support a systematic exclusion claim where the evidence shows
                                            9

benefit of either Lilly or Veal’s refinements, we remand the matter to the district

court to give Shaw an opportunity to develop his arguments that his constitutional

right to an impartial jury was violated; if the court finds a violation occurred, it

shall grant Shaw a new trial. See Lilly, 930 N.W.2d at 308; Veal, 930 N.W.2d at

330; State v. Williams, 929 N.W.2d 621, 630 (Iowa 2019).

       We affirm the district court on Shaw’s sufficiency of the evidence claim.

   AFFIRMED ON CONDITION AND REMANDED WITH DIRECTIONS.




one or more of those practices have produced underrepresentation of a minority
group.”); Veal, 930 N.W.2d at 329 (requiring “something other than the ‘laundry list’” of
practices identified by the U.S. Supreme Court in Berghuis v. Smith, 559 U.S. 314
(2010) to meet the third prong of Plain/Duren under the Sixth Amendment); see also
Berghuis, 559 U.S. at 332 (“[Respondent]’s list includes the County’s practice of
excusing people who merely alleged hardship or simply failed to show up for jury
service, its reliance on mail notices, its failure to follow up on nonresponses, its use of
residential addresses at least 15 months old, and the refusal of [local] police to enforce
court orders for the appearance of prospective jurors.”).
