                    IN THE COURT OF APPEALS OF IOWA

                                   No. 13-2004
                               Filed June 10, 2015

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

SPENCER A. PIERCE,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Polk County, Arthur E. Gamble,

Judge.



      A criminal defendant appeals from his convictions for first-degree murder

and first-degree robbery. REVERSED AND REMANDED.



      Mark C. Smith, State Appellate Defender, and Maria Ruhtenberg,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Kevin Cmelik and Kyle P. Hanson,

Assistant Attorney General, John P. Sarcone, County Attorney, Daniel Voogt and

Stephanie Cox, Assistant County Attorneys, for appellees.



      Heard by Vogel, P.J., and Potterfield and Mullins, JJ.
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MULLINS, J.

       Spencer Pierce appeals his convictions for murder in the first degree and

robbery in the first degree. His co-defendant, Deanna Hood, appeals separately.

See State v. Hood, No. 13-1998, ____ WL ___________ (Iowa Ct. App. June 10,

2015). Pierce contends (1) there was insufficient evidence in the record to find

him guilty, (2) the district court erred in allowing the State to present evidence of

Pierce’s drug dealing, and (3) the district court erred in allowing the State to show

the jury a reenactment of a surveillance video.

       We find the evidence is insufficient to convince a rational trier of fact of

Pierce’s guilt. Therefore, substantial evidence does not support his convictions,

and we reverse and remand for dismissal of the charges. We do not address the

other appeal arguments.

I.     BACKGROUNDS FACTS AND PROCEEDINGS.

       The facts of the two cases are set out in greater detail in State v. Hood,

No. 13-1998, ____ WL ___________ (Iowa Ct. App. June 10, 2015). For the

purposes of this appeal, we focus particularly on the facts pertinent to Pierce.

We set out additional facts here as necessary.

       Substantial evidence supports a finding that Pierce accompanied Hood to

Harmon’s apartment to try to accomplish a drug deal between Hood and the

purchaser, with Harmon acting as a go-between.             The purchaser testified

Harmon appeared to discuss the deal with Hood but not with Pierce. Pierce and

Hood then left Harmon’s apartment in a Dodge Durango that a witness testified

was gold in color.
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       Harmon and his paramour, Kimberly Frye, went to his trailer at 1631 East

Aurora Avenue to collect the drugs. A car pulled up and Harmon went outside

while Frye remained inside. Frye heard a voice she described as male and

African-American shortly before she heard gunshots and a vehicle driving away.

Pierce is an African-American man. Frye saw Harmon shot and lying on the

ground by the trailer and she sought help from a neighbor, Robert Rokitnicki. He

drove her to a nearby gas station to wait for police officers.

       Bree Whipps saw Hood and Pierce together at a convenience store that

night sometime between 10:00 p.m. and 2 a.m. Pierce helped Whipps look for a

hotel, driving her in a red Saturn sedan and eventually taking her to his uncle’s

house. The next day, Hood and Pierce saw Whipps and were again driving the

red Saturn sedan. The convenience store where Whipps saw Pierce and Hood

was a very short walking distance from their apartment on Arnold Road.

       On June 7, an officer observed Pierce driving a silver Dodge Durango into

his apartment parking lot. Officers seized the vehicle and during a later search

found methamphetamine under the hood of the car. Officers also found evidence

of drug distribution in the apartment Pierce shared with Hood. The last phone

call from Pierce’s cellular telephone on the evening of June 5 was at 11:20 p.m.

The next time the telephone was used, Pierce received calls from Whipps at 1:13

a.m. and again at 1:45 a.m. He next made an outgoing call at 3:29 a.m. Police

officers determined that all the calls Pierce made and received during the night in

question bounced off cellular towers closest to his Arnold Road apartment

building, located several miles from the site of the murder.
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       The State charged Pierce both as a principal and as the aider-and-abettor

of first-degree murder, a class “A” felony, in violation of Iowa Code section 707.2,

and first-degree robbery, a class “B” felony, in violation of section 711.1 and .2.

The State also alleged that Pierce was in possession of a dangerous weapon,

displayed a dangerous weapon in a threatening manner, or was armed with a

dangerous weapon, pursuant to Iowa Code section 902.7. Following trial, the

jury found both Hood and Pierce guilty as charged. On appeal, Pierce contends

there was insufficient evidence to support the conviction. Pierce also contends

the district court erred in allowing into the record the drug evidence from the

apartment and the Dodge Durango and a reenactment of the surveillance video

from the trailer lot where Harmon was killed.

II.    ANALYSIS.

       “Challenges to the sufficiency of the evidence are reviewed for correction

of errors at law.” State v. Hansen, 750 N.W.2d 111, 112 (Iowa 2008). “We allow

a verdict to stand if substantial evidence supports it.”     State v. Biddle, 652

N.W.2d 191, 197 (Iowa 2002). “Evidence is substantial if it would convince a

rational fact finder that the defendant is guilty beyond a reasonable doubt.” Id.

“We review the evidence in the light most favorable to the State, including

legitimate inferences and presumptions that may fairly and reasonably be

deduced from the record evidence.” Id. “We consider all the record evidence,

not just the evidence that supports the verdict.” Id. “‘[E]vidence which merely

raises suspicion, speculation, or conjecture is insufficient.’” State v. Hearn, 797
                                       5



N.W.2d 577, 580 (Iowa 2011) (quoting State v. Casady, 491 N.W.2d 782, 787

(Iowa 1992)).

      “The Iowa Code provides that those who aid and abet in the commission

of a public offense ‘shall be charged, tried and punished as principals.’” Hearn,

797 N.W.2d at 580 (quoting Iowa Code § 703.1). “To sustain a conviction under

a theory of aiding and abetting, the record must contain substantial evidence the

accused assented to or lent countenance and approval to the criminal act by

either actively participating or encouraging it prior to or at the time of its

commission.”    Id. (internal quotations omitted).     “Knowledge is essential;

however, neither knowledge nor presence at the scene of the crime is sufficient

to prove aiding and abetting.” Id. (internal quotations omitted). “A defendant’s

participation may, however, be proven by circumstantial evidence.” Id.

      The court gave the jury the following instructions on first-degree murder

and first-degree robbery:

              In Count I as to each defendant, the State must prove all of
      the following elements of Murder in the First Degree:
              1.     On or about June 6, 2013, the defendant or someone
      he or she aided and abetted, shot Steven Harmon.
              2.     Steven Harmon died as a result of being shot.
              3.     The defendant, or someone he or she aided and
      abetted, acted with malice aforethought.
                     a.     The defendant, or someone he or she
              aided and abetted, acted willfully, deliberately,
              premeditatedly and with a specific intent to kill Steven
              Harmon; and/or
                     b.     The defendant, or someone he or she
              aided and abetted, was participating in the forcible
              felony of Robbery.
              If the State has proved all of the elements, the defendant is
      guilty of Murder in the First Degree in Court I.
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               In Count II as to each defendant, the State must prove all of
       the following elements of Robbery in the First Degree:
               1.     On or about June 6, 2013, the defendant or someone
       he or she aided and abetted had the specific intent to commit a
       theft.
               2.     To carry out his or her intention or to assist him or her
       in escaping from the scene, with or without the stolen property, the
       defendant or someone he or she aided and abetted:
                      a.     Committed an assault on Steven
               Harmon, and/or
                      b.     Threatened Steven Harmon with, or
               purposely put Steven Harmon in fear of immediate
               serious injury.
               3.     The defendant or someone he or she aided and
       abetted was armed with a dangerous weapon.
               If the State has proved all of the elements, the defendant is
       guilty of Robbery in The First Degree.

In special interrogatories, the jury found that in the commission of the first-degree

murder and first-degree robbery, the defendants “represented they were in the

immediate possession and control of a dangerous weapon, displayed a

dangerous weapon in a threatening manner, or [were] armed with a dangerous

weapon.” Pierce contends there was insufficient evidence to prove him guilty of

murder and robbery, either as the principal or as an aider and abettor. The

primary issue in this case is whether there is sufficient evidence to place Pierce

at the murder scene at about 1:00 a.m. on June 6.

       Although Harmon arranged a drug transaction, he appeared to do so

solely with Hood. He spoke with Hood in the apartment about the purchaser’s

payment. There is no evidence he spoke with Pierce about the purchase. The

purchaser’s apparent understanding was that Hood was the dealer. There is no

direct evidence that Pierce was involved in arranging the drug deal at the trailer,

nor that he participated in it. There is, however, evidence that he was present at
                                            7



Harmon’s apartment with Hood before the shooting and may have been seen

after the time of the shooting, with Hood, at the convenience store. The State

asserts that circumstantial evidence supports a reasonable inference that if

Pierce was with Hood before and after the murder, he must have been with her

during the murder. As part of its circumstantial case, the State asserts Pierce

was seen at the convenience store after the murder.

      First, it is clear Pierce was with Hood at Harmon’s apartment earlier in the

evening. At 1:17 a.m., Rokitnicki, a neighbor, called 911 to report the shooting.

Given that Frye remained in the trailer for about twenty minutes after the

shooting, the murder likely occurred sometime between 12:50 and 1:00 a.m.

Whipps estimated she saw Hood and Pierce at the convenience store sometime

between 10:00 p.m., and 2:00 a.m., which would have been either well before the

shooting or shortly after the shooting. Based on the 1:17 a.m. time of the 911

call from Rokitnicki, the State’s theory requires that Hood was at the store

between about 1.00 a.m. and 2:00 a.m. Yet the phone records show Whipps

made two phone calls to Pierce in this narrow window, at 1:13 a.m. and at 1:45

a.m., when she was allegedly with Pierce in person at the convenience store. It

does not make sense that she would call him on a phone if he were present at

the store. There is not enough evidence in the record to support the conclusion

that Whipps saw Pierce and Hood at the convenience store immediately after the

time of the murder.      Thus, one key piece of the circumstantial evidence

supporting the State’s theory is missing.
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       Second, while Hood’s telephone records place her close to the site of the

murder at the correct time, Pierce’s telephone records show that at all the times it

was used that evening, his phone signal only bounced off the tower in the

neighborhood of his apartment, several miles away from the murder scene. The

record does not support the premises that underlie the State’s theory—namely,

that Pierce was with Hood before and after the shooting and must have been

with her during the shooting. On this weak a record, that inference would be

unreasonable.

       In addition, the identifying information of the two killers at the murder site

is weak. The only identifying information was that one sounded to Frye like an

African-American man. The State’s theory is that since Pierce is an African-

American man who was seen driving a Dodge Durango earlier that evening and

was also seen a day later driving a Dodge Durango, identified as the same car

from the surveillance video, then Pierce was one of the participants at the murder

scene. However, a different African-American man, Corvelle Beeks, was the

live-in boyfriend of the owner of the silver Dodge Durango.         He, like Hood,

deactivated his cellular telephone the day after the murder. The record also is

not clear as to Hood’s whereabouts during the time Pierce was with Whipps.

When Pierce drove Whipps around on the night of the murder, they were in a

small, red Saturn sedan, not a Dodge Durango. There is no evidence of the

location or occupants of the Dodge Durango during the time Pierce and Whipps

were riding in the red Saturn.
                                         9



       We compare the lack of evidence in the case against Pierce with the

evidence that is against Hood.      Hood talked with Harmon at his apartment,

apparently concerning a drug transaction. Hood’s cellular records place her near

the scene of the murder and establish she was in contact with Harmon up until

the time of the murder. No such evidence places Pierce at the scene or in

contact with Harmon.     The fact that Hood never used the phone again and

deactivated it the next day supports an inference she got rid of evidence that

connected her to Harmon and the crime. Pierce retained the same phone and

continued using it after the time of the murder. On the whole, the quantum of

evidence that tips the scale in favor of affirming the conviction with respect to

Hood does not exist with respect to Pierce.

       We also note a lack of physical evidence connecting Pierce to the murder

or the instruments involved.     The murder weapon and the cash were never

recovered. Neither was Harmon’s cellular telephone. There was no evidence of

blood or gunshot residue connected to Pierce, in his apartment, or in the

Durango.    The weight of the evidence, even when taken in the light most

favorable to the State and when making all fair and reasonable inferences,

convinces us that a rational trier of fact could not have found, beyond a

reasonable doubt, that Pierce killed or robbed Harmon, or aided and abetted

another in doing so. Pierce’s alleged involvement in these crimes is speculative

and based primarily on his presence with Hood several hours before, and shaky

evidence that he was with Hood afterward. While the evidence against Hood is

not overwhelming, we have found it is sufficient to convince a rational trier of fact
                                             10



of Hood’s guilt. See State v. Hood, No. 13-1998, ____ WL _______ (Iowa Ct.

App. June 10, 2015). Pierce appears to have been painted with the same broad

brush. Substantial evidence does not, however, support his convictions, and we

reverse them. We need not address the other arguments in this appeal.

III.   CONCLUSION.

       Finding the evidence is insufficient to convince a rational trier of fact of

Pierce’s guilty beyond a reasonable doubt, we conclude substantial evidence

does not support the convictions.            We vacate the sentences, reverse the

convictions, and remand for dismissal of the charges against him in this case.

       REVERSED.

       Potterfield, J., concurs specially.
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POTTERFIELD, J. (concurring specially)

      I concur with the majority in finding there is insufficient evidence to support

Pierce’s convictions.   I write separately to note the district court abused its

discretion by admitting evidence concerning the discovery of drugs and related

equipment in the defendants’ apartment and the Durango driven by Pierce at the

time of his arrest. As more fully delineated in my dissent in State v. Hood, No.

13-1998, 2015 WL ___________, at *__ (Iowa Ct. App. June 10, 2015), the

State’s evidence showing the discovery of methamphetamine, marijuana, and

drug paraphernalia in the Durango and the apartment had no relevance in these

proceedings besides its tendency to imply a propensity for unlawful activity as a

possessor or a dealer of illegal drugs. As I wrote in my dissent in Hood:

      Evidence showing the presence of drugs in the vehicle was not
      inextricably intertwined with the robbery and murder. Neither that
      evidence nor evidence of drugs found in the apartment was
      admissible to show the defendants’ motive, intent, identity, or
      malice aforethought. The evidence of either drug cache is highly
      prejudicial and minimally probative. It was therefore impermissible
      character evidence, and the district court abused its discretion by
      admitting it.

2015 WL ___________, at *__.

      Admission of the drug evidence is even more patently improper here than

in Hood because other evidence does not support Pierce’s involvement in

dealing drugs. As the majority notes, the evidence shows the purported drug

deal occurred between Harmon and Hood alone.             The contested evidence

therefore fails at the non-propensity purposes put forward by the State. Even if

there were substantial evidence in the record to support Pierce’s convictions, the
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district court’s abuse of its discretion in admitting the drug evidence would require

reversal and a new trial on remand.
