                    IN THE COURT OF APPEALS OF IOWA

                                   No. 15-1205
                               Filed June 15, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

BRANDON DEWIELDE TATE,
     Defendant-Appellant.
________________________________________________________________


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

Judge.




      A defendant challenges the sufficiency of the evidence supporting his

conviction for second-degree robbery. AFFIRMED.




      Mark C. Smith, State Appellate Defender, and Shellie L. Knipfer, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Kevin Cmelik, Assistant Attorney

General, for appellee.




      Considered by Vogel, P.J., and Doyle and Bower, JJ.
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DOYLE, Judge.

       Brandon Tate appeals his second-degree-robbery conviction, alleging

there was insufficient evidence to support the jury’s finding of guilt. Specifically,

he argues that because the jury found no gun was used, there was no evidence

of an assault or of a threat of immediate serious injury. Because substantial

evidence supports a finding Tate placed his victim in fear of immediate serious

injury, we affirm.

       I. Background Facts and Proceedings.

       At trial, Molly Eastman testified she drove to a convenience store near her

home in the early-morning hours of September 21, 2013, intending to purchase

cigarettes. When she arrived at the convenience store, she realized it would not

open for approximately ten more minutes. Because of the store’s location in a

high-crime area, Eastman planned to return home to wait until the store opened.

As Eastman began to leave the store’s parking lot, Tate motioned for her to stop,

and Eastman rolled down her window to speak with him. Tate approached the

driver’s side of the car and lifted his shirt to show Eastman what she believed to

be a gun tucked into the waistband of his pants. Eastman was frightened that

Tate would shoot her, so when Tate ordered her to let him into the car, Eastman

complied. She also complied with his demand to drive her to a nearby senior

living center. When they arrived in the area near the senior living center, Tate

directed Eastman where to drive and park. Tate took Eastman’s wallet from her,

removed the money from her wallet, and told her that he would come after her

family if she told anyone.
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       When Eastman returned home immediately after the incident, she was

terrified, crying, and “hysterical.”   According to her fiancé, Dan Harkrider,

Eastman “flew in the door, dropped everything on the floor, screaming, [and] told

me to call the cops.”    She informed Harkrider that she had been robbed at

gunpoint.    Harkrider called the police, who took Eastman’s statement and

interviewed her.

       With the aid of security footage from the convenience store, Tate was

identified as the perpetrator of the crime and was charged with robbery in the first

degree, a class “B” felony, in violation of Iowa Code sections 711.1 and .2

(2013). His first trial resulted in a mistrial due to a breakdown in the attorney-

client relationship.

       A second trial was held in April and May of 2015. Tate moved for a

judgment of acquittal at the close of the State’s evidence, which the trial court

denied. After deliberation, the jury returned a verdict finding Tate guilty of the

lesser-included offense of second-degree robbery.

       Tate filed a motion for new trial, arguing in part that the verdict was

contrary to the weight of the evidence. His motion was denied, and he was

sentenced to a term of no more than ten years in prison. Tate filed a timely

notice of appeal.

       II. Scope and Standard of Review.

       We review challenges to the sufficiency of the evidence to support a

conviction for the correction of errors at law. See State v. Alvarado, 875 N.W.2d

713, 715 (Iowa 2016). The evidence is viewed in the light most favorable to the

State to determine whether, viewing the evidence as a whole, a reasonable
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person could find the defendant guilty beyond a reasonable doubt. See id. The

verdict will be upheld if supported by substantial evidence. See State v. Howse,

875 N.W.2d 684, 688 (Iowa 2016). Evidence is substantial if it could convince a

rational fact finder the defendant is guilty beyond a reasonable doubt. See id.

Evidence is not substantial if it only raises suspicion or speculation as to the

defendant’s guilt. See id.

       III. Analysis.

       At trial, the jury was instructed in pertinent part:

               The State must prove all of the following elements of
       Robbery in the First Degree:
               1. On or about the 21st day of September, 2013, [Tate] 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, [Tate]:
               a. Committed an assault on [Eastman], or
               b. Threatened [Eastman] with, or purposely put [Eastman] in
       fear of immediate serious injury[.]
               3. [Tate] was armed with a dangerous weapon.
               If the State has proved all of the elements, [Tate] is guilty of
       Robbery in the First Degree. If the State has proved elements 1
       and 2, but has failed to prove element 3, [Tate] is guilty of Robbery
       in the Second Degree.

The jury was further instructed that “serious injury is a bodily injury which creates

a substantial risk of death or which causes serious permanent disfigurement or

extended loss or impairment of the function of any bodily part or organ.”

       Tate challenges the sufficiency of the evidence to support his conviction

for second-degree robbery.        Because he was not convicted of first-degree

robbery, he notes the jury found he was not armed with a dangerous weapon.

Tate argues that without a weapon in his possession, there was no basis in the
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evidence to support a finding he threatened Eastman or put her in fear of a

substantial risk of immediate serious injury.

       When viewed in the light most favorable to upholding the jury’s verdict,

there is substantial evidence in the record to support the finding Tate placed

Eastman in fear of immediate painful, injurious, insulting, or offensive physical

contact. Eastman testified Tate lifted his shirt as he approached her vehicle,

which is corroborated by the convenience store’s surveillance video. Eastman

testified that she believed Tate had a gun, and she was fearful that he would

shoot her. Harkrider and the officers who investigated the crime testified that

Eastman was visibly upset afterward. Although the jury’s acquittal of the first-

degree-robbery charge indicates it found Tate was not armed with a dangerous

weapon, a reasonable jury could have found that Tate acted in a manner

indicating he was armed in order to put Eastman in fear of immediate serious

injury. See State v. Heard, 636 N.W.2d 227, 232 (Iowa 2001) (finding sufficient

evidence supported Heard’s conviction under the assault alternative where

Heard entered a store early in the morning with his appearance disguised,

demanded the clerk give him money, and ordered her to lie down before leaving

because it could be reasonably inferred Heard intended to place the clerk in fear

of immediate physical contact that would be painful, injurious, or offensive if the

clerk did not comply); State v. Losey, No. 05-1745, 2006 WL 3802925, at *3

(Iowa Ct. App. Dec. 28, 2006) (affirming second-degree-robbery conviction even

though “the record contain[ed] no evidence indicating Losey was armed, made

an express threat or threatening gesture” because “Losey’s demeanor, proximity

to the bank teller, his note demanding money, as well as the teller’s resulting
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fear, when considered in total,” supported his conviction under the assault

alternative); State v. Ockenfels, No. 00-1016, 2002 WL 984373, at *3 (Iowa Ct.

App. May 15, 2002) (finding substantial evidence supported Ockenfels’s robbery

conviction in part because Ockenfels “had his hand in his pocket which could be

taken for his having a gun”); 4 Wharton’s Criminal Law § 462 (15th ed.) (noting

that although a defendant who uses a toy or simulated gun may be guilty of

robbery, the defendant can only be convicted of a more serious degree of

robbery if the toy or simulated gun is in fact a deadly or dangerous weapon); see

also Lynn Considine Cobb, Annotation, Robbery by Means of Toy or Simulated

Gun or Pistol, 81 A.L.R.3d 1006 § 8 (1977) (outlining cases in which courts have

held the element of force or fear of some form of antecedent violence was

present where the defendant used a simulated gun).

           Tate notes inconsistencies in Eastman’s testimony. In reaching its verdict,

the jury made its own determination of whether Eastman’s testimony was

credible. See State v. Nitcher, 720 N.W.2d 547, 556 (Iowa 2006). “The jury

[was] free to believe or disbelieve any testimony as it [chose] and to give weight

to the evidence as in its judgment such evidence should receive.”              State v.

Thornton, 498 N.W.2d 670, 673 (Iowa 1993). “The very function of the jury is to

sort out the evidence presented and place credibility where it belongs.” State v.

Blair, 347 N.W.2d 416, 420 (Iowa 1984); see also State v. Musser, 721 N.W.2d

758, 761 (Iowa 2006) (“It is not the province of the court . . . to resolve conflicts in

the evidence, to pass upon the credibility of witnesses, to determine the

plausibility of explanations, or to weigh the evidence; such matters are for the

jury.”).
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      Because substantial evidence supports the finding Tate put Eastman in

fear of immediate serious injury, there is sufficient evidence to support his

second-degree-robbery conviction. Accordingly, we affirm.

      AFFIRMED.
