State of Iowa v. Jordan Nichole Bryant

IN THE COURT OF APPEALS OF IOWA

No. 21-0920
Filed August 3, 2022

STATE OF IOWA,
Plaintiff-Appellee,

vs.

JORDAN NICHOLE BRYANT,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Story County, Angela L. Doyle,

Judge.

Jordan Bryant appeals her convictions for third-degree robbery and

involuntary manslaughter, arguing the robbery offense should merge. AFFIRMED.

Todd M. Lantz of The Weinhardt Law Firm, Des Moines, for appellant.

Thomas J. Miller, Attorney General, and Kevin Cmelik (until withdrawal) and

Darrel Mullins, Assistant Attorneys General, for appellee.

Considered by May, P.J., and Greer and Chicchelly, JJ.
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MAY, Presiding Judge.

Jordan Bryant appeals her conviction and sentence for third-degree robbery

and involuntary manslaughter. She claims the two convictions merge. We affirm.

I. Background Facts & Proceedings

Two men and two women, including Bryant, drove to Ames. They went to

visit Xavier Shepley. At first, only Bryant and the other woman went into Shepley’s

apartment. But after a while, the two men barged in the apartment and demanded

money from Shepley. After Shepley did not comply, one of the men struck him

with a pistol and then shot him. All four fled the apartment. Shepley died from his

injuries.

The State charged Bryant with first-degree murder (count I) and first-degree

robbery (count II). At trial, the verdict form for count I permitted the jury to find any

of six possible verdicts: (1) guilty of first-degree murder; (2) guilty of “the lesser

included offense of” second-degree murder; (3) guilty of “the lesser included

offense of” involuntary manslaughter; (4) guilty of “the lesser included offense of”

aggravated assault; (5) guilty of “the lesser included offense” of assault; or (6) not

guilty. Along similar lines, the verdict form for count II permitted the jury to find

Bryant guilty of first-degree robbery; to find Bryant guilty of any of several “lesser-

included offenses,” namely, second-degree robbery, third-degree robbery,

aggravated assault, or assault; or to find Bryant not guilty. The jury instructions

explained the required elements of all of these crimes.

As to count I, the jury found Bryant guilty of involuntary manslaughter. As

to count II, the jury found Bryant guilty of third-degree robbery.
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Bryant moved to dismiss her third-degree robbery conviction. She argued

the offense “is necessarily included within the manslaughter offense.” The district

court denied Bryant’s motion. Bryant appeals.

II. Standard of Review

We review an alleged failure to merge convictions as required by statute for

correction of errors at law. State v. West, 924 N.W.2d 502, 504 (Iowa 2019); State

v. Love, 858 N.W.2d 721, 723 (Iowa 2015).

III. Discussion

Bryant argues that, in light of how the case was “tried, submitted, and

decided,” her third-degree robbery conviction merges with her involuntary

manslaughter conviction. We disagree.

Iowa Code section 701.9 (2021) is our merger statute. It states, “No person

shall be convicted of a public offense which is necessarily included in another

public offense of which the person is convicted.” Iowa Code § 701.9 (emphasis

added). Our supreme court has held “the question of whether an offense is

necessarily included in a greater offense is a question of legislative intent.” West,

924 N.W.2d at 512. The search for legislative intent can require up to two steps.

First, we apply the “legal-elements test that compares ‘the elements of the two

offenses to determine whether it is possible to commit the greater offense without

also committing the lesser offense.’” State v. Johnson, 950 N.W.2d 21, 24 (Iowa

2020) (quoting State v. Halliburton, 539 N.W.2d 339, 344 (Iowa 1995)). If the legal-

elements test is satisfied, we engage in a broader analysis to decide if “the

legislature intended multiple punishments for both offenses.” Halliburton, 539

N.W.2d at 344.
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We begin with the legal elements test. “If the lesser offense contains an

element not required for the greater offense the lesser cannot be included in the

greater.” State v. Jeffries, 430 N.W.2d 728, 740 (Iowa 1988) (emphasis added).

“This is because it would be possible in that situation to commit the greater without

also having committed the lesser.” Id.

Here, the instruction on involuntary manslaughter stated:

1. On or about the 18th day of November, 2017, someone
[Bryant] aided and abetted recklessly committed the crime of
[r]obbery in the [t]hird [d]egree as defined in [i]nstruction [n]o. 47,
[a]ggravated [a]ssault as defined in [i]nstruction No. 48, or [a]ssault
as defined in [i]nstruction [n]o. 49.
2. When the crime was committed, the person who [Bryant]
aided and abetted unintentionally caused the death of Xavier
Shepley.

The jury instruction on third-degree robbery stated:

1. On or about the 18th day of November, 2017, either [Bryant]
had the specific intent to commit a theft or she knew that someone
she aided and abetted had the specific intent to commit a theft.
2. In carrying out that intention, or to further their escape from
the scene, with or without the stolen property, someone [Bryant]
aided and abetted committed an assault on Xavier Shepley.

(Emphasis added.)

Under these instructions, third-degree robbery required an element—

“specific intent to commit a theft”—that was not required for involuntary

manslaughter. So one could commit involuntary manslaughter without committing

third-degree robbery. See Johnson, 950 N.W.2d at 24. And so, following the

language of the statute, third-degree robbery was not “necessarily included in”

involuntary manslaughter. See Iowa Code § 701.9.

It’s true, of course, that the first element of involuntary manslaughter

required the commission of another crime. See State v. Webb, 313 N.W.2d 550,
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552 (Iowa 1981) (“The ‘public offense’ type of involuntary manslaughter may be

committed in a large variety of alternative ways.”). It’s also true that third-degree

robbery was identified as one of the eligible crimes. But the instruction also

identified other possible crimes—assault and aggravated assault—that could fulfill

the same requirement. This suggests third-degree robbery was not “necessarily

included in” involuntary manslaughter. See Iowa Code § 701.9.

But Bryant notes that the State argued the case as “a robbery gone wrong.”

And so, Bryant contends, the State did not “argue[] for or even offer[] the jury a

path to the lesser included offenses of aggravated assault or assault.” From this,

Bryant infers, “the only reasonable conclusion” we can draw “is that the jury based

its verdict on count I (involuntary manslaughter) on the predicate crime of robbery

in the third degree.”

We disagree. The jury instructions—which we presume the jury followed,

see State v. Sanford, 814 N.W.2d 611, 620 (Iowa 2012)—provided clear paths to

finding assault or aggravated assault. Most significantly, the marshalling

instructions for third-degree robbery required the jury to find an assault (as did the

instructions for first- and second-degree robbery). Put differently, assault was a

predicate crime for the jury’s guilty verdict on count II (third-degree burglary). We

can be certain, then, that jury found assault was committed. And we see no reason

why that assault couldn’t have been the predicate crime for the jury’s guilty verdict

on count I (involuntary manslaughter). All things considered, then, we do not think

the legal-elements test has been satisfied. 1 See Johnson, 950 N.W.2d at 24.

1We have considered the cases on which Bryant relies, namely: State v. West,
924 N.W.2d 502 (Iowa 2019); State v. Love, 858 N.W.2d 721 (Iowa 2015); and
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Also, we think merger is contrary to the legislature’s purposes as expressed

“in the words of the Iowa Code.” See State v. Goodson, No. 18-1737, 2020 WL

3571803, at *7 (Iowa Ct. App. July 1, 2020), aff’d on further rev., 958 N.W.2d 791

(Iowa 2021). Like the State, we believe the statutes that Bryant violated reveal

“differing purposes.” See Halliburton, 539 N.W.2d at 344. Our involuntary

manslaughter statute, section 707.5(1) (2019), punishes those who “cause[] the

death of another person.” Conversely, our robbery statutes punish “the intent to

commit a theft” when it is coupled with threatened or actual violence. Iowa Code

§ 711.1(1); see State v. Copenhaver, 844 N.W.2d 442, 449 (Iowa 2014) (noting

“the unit of prosecution for robbery requires the defendant to have the intent to

commit a theft, coupled with any of the following—commits an assault upon

another, threatens another with or purposely puts another in fear of immediate

serious injury, or threatens to commit immediately any forcible felony”). But death

is never an element of robbery—not even first-degree robbery, a class “B” felony.

Iowa Code § 711.2. In short, the involuntary manslaughter statute and the robbery

statute “focus on different dangers”; so we infer “the legislature intended that a

State v. Anderson, 565 N.W.2d 340 (Iowa 1997). None of them answers the
specific question before us. See West, 924 N.W.2d at 511 (concluding that
convictions for involuntary manslaughter by commission of a public offense and
delivery of a controlled substance did not merge); Love, 858 N.W.2d at 724–25
(concluding that, under the specific instructions given, conviction for assault with
intent to inflict serious injury merged with willful injury causing bodily injury);
Anderson, 565 N.W.2d at 344 (concluding that, “[b]ased upon the alternatives
submitted by the district court to the jury in this case,” assault with intent to commit
sexual abuse merged with first-degree burglary). Consistent with those cases,
though, we have applied the elements test in light of how the charges were actually
tried and submitted, that is, how the district court instructed the jury.
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defendant who violates” both statutes will “be punished under both statutes.”

Halliburton, 539 N.W.2d at 344.

IV. Conclusion

Because the offenses in this case should not merge, we affirm the judgment

of the district court.

AFFIRMED.