State v. Henderson

Decision Date09 March 2018
Docket NumberNo. 16-0575,16-0575
Citation908 N.W.2d 868
Parties STATE of Iowa, Appellee, v. K’von James HENDERSON, Appellant.
CourtIowa Supreme Court

John Audlehelm of Audlehelm Law Office, Des Moines, for appellant.

Thomas J. Miller, Attorney General, Martha E. Trout, Assistant Attorney General, Brian Williams, County Attorney, and Bradley Walz, Assistant County Attorney, for appellee.


Can a getaway driver be convicted of first-degree robbery under the dangerous weapon alternative without knowing or intending that the robbery does involve a dangerous weapon? In our view, the answer to this question is no.

Here the defendant agreed to be the getaway driver for two others who were going to rob a pharmacy. The robbery took place, but the defendant never gave a ride to his compatriots because they were apprehended by the police before any rendezvous occurred.

Since a gun had been used, all three individuals were charged with first-degree robbery. Iowa Code § 711.2 (2015). After a joint trial, all three were convicted of that charge. The defendant appealed, arguing among other things that the record did not contain substantial evidence he knew a gun would be used in the robbery. The court of appeals affirmed.

On further review, we reverse the defendant’s conviction for robbery in the first degree under Iowa Code section 711.2 and remand for entry of judgment and sentencing for robbery in the second degree under section 711.3. We hold that the defendant’s conviction under an aiding and abetting theory required the State to prove the defendant not only participated in or encouraged the crime, but also knew of it, including the dangerous weapon element. Because the State failed to prove defendant had knowledge or intent of the use of a gun, a motion for judgment of acquittal on this basis would have been meritorious, and the defendant’s trial counsel rendered ineffective assistance in failing to move for acquittal on this basis.

I. Facts and Procedural Background.

On February 9, 2015, the defendant K’von Henderson and his friends, Riley Mallett, Cody Plummer, Myles Anderson, and Dayton Nelson, were hanging out at Plummer’s home. At some point, Mallett suggested robbing the Greenwood Pharmacy in Waterloo. The group agreed and spent the rest of the evening hashing out the details, including each participant’s respective role in the robbery. The initial plan was for Anderson and Mallett to enter the pharmacy, and Henderson and Nelson to be drivers. Henderson would take Anderson and Mallett away from the scene in a white Oldsmobile, and Nelson would drive the drugs and money away in a separate vehicle—a black BMW.

The parties also discussed how they would perpetrate the robbery itself. According to Nelson,1 they decided not to use a gun. Instead, they intended to use a threatening note.

Q. Now, when you made this plan to rob this pharmacy, you know very well that there was supposed to be no guns at all involved in this robbery, correct? A. Yes, sir.
Q. That was made certain at this house, Cody Plummer’s house? A. Yes, sir.
Q. And it’s fair to say that nobody was supposed to even get hurt in this robbery, correct? A. Yes, sir.
Q. In doing so, during that planning, how were you—how were the people that entered the pharmacy going to attempt to get the employees at Greenwood Pharmacy to give them anything without showing a weapon or without using any kind of force. A. A note.
Q. And what was the nature of the note going to be? A. Just so you didn’t have to use anything else.

The following day, February 10, was a flurry of activity and communication for the group. Cellphone records revealed that the parties called each other frequently that day, and the timing of the calls coincided with later trial testimony as to when the men were together and when they were apart. Mallett texted Anderson in the early hours of the morning to confirm that both had obtained masks for the robbery. Approximately an hour and a half before the robbery, Anderson backed out of his role as one of the two entrants into the pharmacy. Plummer took his place.

The group brought two vehicles to the pharmacy parking lot: the BMW and the Oldsmobile. Mallett drove Anderson and Plummer in the BMW, while Nelson and Henderson went separately in the Oldsmobile. After everyone arrived in the pharmacy parking lot, Nelson exited the Oldsmobile and got into the driver’s seat of the BMW. Henderson split off from the group and drove the Oldsmobile by himself to the meeting point where he was supposed to pick up Plummer and Mallett after the robbery.

According to Nelson, after Henderson had left, and immediately before Plummer and Mallett were to enter the pharmacy, Anderson produced a firearm similar to a police-issued firearm. Anderson referred to this gun as "Billy" and had evidently acquired it in a previous robbery.

Nelson testified at trial that all of the group members were aware Anderson possessed this gun, although he did not regularly carry it. Nelson further testified that he did not know that a gun was going to be used until Anderson pulled out "Billy." Nelson observed Anderson handing the gun out the car window of the BMW. Nelson could not see who Anderson passed the gun to, although only Mallett and Plummer were outside the vehicle at that time.

Shortly before 9:00 p.m., Mallett and Plummer entered Greenwood Pharmacy. Both men wore masks, and Mallett wore distinctive "clown pants," which were black with large white stars on them. Pharmacy employees testified that both men also appeared to be carrying guns, although one appeared to be a toy. Once inside, Mallett moved to the back of the pharmacy and provided a handwritten note to the pharmacist that read, "Give all the pain pill[s], all the Xanax

and all the Promethazine [and] Codeine before I shoot this bitch up." Mallett pointed his gun—i.e., "Billy"—at the pharmacist’s head to direct him around the store. The pharmacist testified that the gun "definitely looked metal. It looked like a weapon that a police would have." Mallett ordered the pharmacist to hand over supplies of various drugs.

Meanwhile, Plummer took $70 from the cash register at the front, although the employee there believed Plummer’s gun wasn’t real: "It had a little orange around it." Plummer then joined Mallett at the rear of the pharmacy. When the robbers ordered a technician to empty the remaining register, she triggered the silent alarm.

Once Mallett and Plummer had obtained their loot, they fled through the back exit of the pharmacy. Nelson was there to meet them, and they deposited the items they had stolen into the trunk of the BMW. Nelson and Anderson then headed in the BMW to Plummer’s house.

In accordance with the plan, Mallett and Plummer went on foot to meet Henderson at the chosen rendezvous spot. However, by this time, law enforcement officers were swarming the area, and no rendezvous occurred. Mallett was eventually caught in a treehouse in a nearby neighborhood. He had discarded his distinctive "clown pants"—later found by the police nearby—and wore only shorts and a hooded sweatshirt. Plummer was apprehended running through the neighborhood with only one shoe, having lost the other while fleeing.

Meanwhile, Henderson drove to Plummer’s house where he met Nelson and Anderson, and the three of them proceeded to Nelson’s house. There, they divided some of the proceeds of the robbery and hid a purse filled with the remaining stolen drugs under Nelson’s mother’s bed. Anderson then went to his own home, where he was later taken into custody by police.

At Nelson’s home, Henderson ran into Nelson’s younger brother. Henderson told the brother that if anyone asked, he should say Henderson and the others had been hanging out with him all evening. Soon, the police arrived at Nelson’s house and knocked on the door. As Nelson answered the door, his dogs bolted out. Henderson and Nelson ran after the dogs but were quickly apprehended by the police.

The officer who detained Henderson found approximately $70 and a wad of tinfoil containing Xanax in his pocket. Although Henderson had a valid prescription for Xanax, Henderson accused the officer of planting the packet in his pocket. Henderson’s sister later testified at trial that the pills Henderson normally took were of a different color than those recovered from his pocket on the night of the robbery.

When questioned by police, Henderson initially claimed he had been with a friend getting his taxes done during the day and ended up at the Nelson residence in the evening where he had stayed. He ultimately admitted to leaving the Nelson house, but claimed that he had spent the time just driving around.

On February 20, a trial information was filed in the Iowa District Court for Black Hawk County charging Henderson, Anderson, Plummer, and Mallett with first-degree robbery, a class "B" felony. See Iowa Code § 711.2. Anderson pled guilty to first-degree robbery. Nelson entered into an agreement to plead guilty to first-degree theft and conspiracy to commit first-degree robbery, both class "C" felonies, and to testify against the remaining defendants. See id . § 706.3(1); id . § 714.2(1). Henderson went to trial jointly with Plummer and Mallett.

A first trial commenced on November 24 but resulted in a mistrial. Subsequently, a second jury was impaneled on February 9, 2016, and the presentation of evidence began on February 10.

The State’s main witness was Nelson, who testified to the entire series of events leading up to and past the robbery. Other prosecution witnesses included employees of the pharmacy, police officers who responded to and investigated the robbery, Plummer’s girlfriend who overheard some of the planning for the robbery on February 9, 2015, Nelson’s mother, and Nelson’s younger brother. Surveillance video from the pharmacy depicting the robbery was also played for the jury.

After the State rested, all three defendants moved for judgment of acquittal. See Iowa R. Crim. P. 2.19(8). Henderson’s motion...

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