State of Iowa v. K'Von James Henderson ( 2018 )


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  •               IN THE SUPREME COURT OF IOWA
                                  No. 16–0575
    
                              Filed March 9, 2018
    
    
    STATE OF IOWA,
    
          Appellee,
    
    vs.
    
    K’VON JAMES HENDERSON,
    
          Appellant.
    
    
    
          On review from Iowa Court of Appeals.
    
    
          Appeal from the Iowa District Court for Black Hawk County,
    
    George Stigler, Judge.
    
    
    
          A defendant appeals his conviction for first-degree robbery.
    
    DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT
    
    JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS.
    
    
    
          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.
                                        2
    
    MANSFIELD, Justice.
    
          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.
                                                   3
    
           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.
    
    
           1Nelson   testified for the prosecution at trial.
                                         4
    
          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.
                                         5
    
          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
                                        6
    
    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
                                           7
    
    § 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 urged that
    
    Nelson’s testimony lacked corroboration.             Specifically, his counsel
    
    argued,
    
             [T]here is simply no corroboration of Mr. Nelson’s testimony.
             Therefore, there is no jury question presented and we’d ask
             the Court to dismiss the charge of Robbery in the First
             Degree against Mr. Henderson as a matter of law.
    
    The court denied all three motions.
    
             In addition to first-degree robbery, the jury was instructed on the
    
    lesser    included   offenses   of   second-degree     robbery    and   assault.
    
    Instruction No. 23 stated,
    
                  The State must prove all of the following elements of
             Robbery in the First Degree:
                                         8
                1. On or about the 10th day of February, the
          defendant K[’]von Henderson, or a person the defendant
          aided and abetted or engaged in joint criminal conduct, had
          the specific intent to commit a theft.
    
                2. To carry out his intention or to assist in escaping
          from the scene, with or without the stolen property, the
          defendant, or a person the defendant aided and abetted or
          engaged in joint criminal conduct, committed an assault on
          Marcie Mangin or Diane Petersen or Stephen Burk or Wesley
          Pilkington.
    
                3. The defendant, or a person the defendant 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. If the
          State has proved elements numbers 1 and 2, but not
          element 3, the defendant is guilty of Robbery in the Second
          Degree. If the State has proved only element no. 2, the
          defendant is guilty of Assault. If the State has proved only
          element no. 1 or none of the elements, the defendant is not
          guilty.
    
          The jury also received a general instruction regarding aiding and
    
    abetting. Thus, Instruction No. 18 stated,
    
                 “Aid and abet” means to knowingly approve and agree
          to the commission of a crime, either by active participation
          in it or by knowingly advising or encouraging the act in some
          way before or when it is committed. Conduct following the
          crime may be considered only as it may tend to prove the
          defendant’s earlier participation.
    
                ....
    
                The crimes charged require a specific intent.
          Therefore, before you can find the defendant “aided and
          abetted” the commission of the crime, the state must prove
          the defendant(s) either has such specific intent or “aided and
          abetted” with the knowledge the others who directly
          committed the crime had such specific intent.            If the
          defendant(s) did not have the specific intent, or knowledge
          the other had such specific intent, he is not guilty.
    
          On February 17, 2016, the jury returned verdicts finding all three
    
    defendants guilty of first-degree robbery.
                                         9
    
          On February 25, Henderson filed from jail a pro se handwritten
    
    motion for a new trial, alleging several deficiencies in his trial and
    
    representation, including the lack of corroboration of Nelson’s testimony.
    
    On February 29, Henderson supplemented this motion with another
    
    handwritten jail note which said in part,
    
          In trial the state and it’s witness’ never mentioned I had any
          knowledge what-so-ever that there was going to be a weapon
          used in the robbery at Greenwood Pharmacy nor did the
          state or it’s witness’ ever mention I seen the robbery the
          night of the incident. I feel I was wrongfully charged and
          convicted because to be charged with 1st degree robbery I
          would’ve have had to known that there was going to be a real
          weapon or even a weapon at all, and that was not brought
          up at trial at all.
    
          On March 24, the district court heard and overruled Henderson’s
    
    motion for new trial. As to Henderson’s knowledge of a gun, the court
    
    indicated there had been trial testimony that “there was a weapon
    
    produced, handed out of the car by Myles Anderson to either Mr. Mallett
    
    or Mr. Plummer and that [Henderson] had full knowledge of that.”
    
          Henderson spoke up in the courtroom and disagreed. He asked,
    
    “And when—where did they say that in the trial?” The court replied that
    
    it didn’t want to argue the point, but that was what the record reflected.
    
    Henderson disagreed again and reiterated, “[T]hey have no proof that I
    
    knew knowledge of the weapon being involved . . . . But I am still getting
    
    First Degree Robbery though.”
    
          As required by Iowa law, the district court sentenced Henderson
    
    for first-degree robbery to twenty-five years in prison, subject to a
    
    seventy percent mandatory minimum period of incarceration. See Iowa
    
    Code §§ 902.9(1)(b), .12(5).
    
          Henderson appealed.       The appellate brief filed by his counsel
    
    raised a single issue—insufficient evidence or alternatively ineffective
                                        10
    
    assistance of counsel based on failure to move for judgment of acquittal
    
    due to absence of proof that Henderson was aware a dangerous weapon
    
    would be used in the robbery.
    
          Henderson also filed a pro se brief. In addition to the dangerous
    
    weapon issue, Henderson’s pro se brief raised additional ineffective-
    
    assistance claims relating to the waiving of reporting of voir dire, failure
    
    to obtain the admission of exculpatory out-of-court statements made by
    
    Henderson’s codefendants, failure to take the deposition of Nelson’s
    
    younger brother, and failure to object to trial evidence that Anderson had
    
    previously stolen firearms, including handguns.
    
          We transferred the case to the court of appeals, which affirmed
    
    Henderson’s conviction. In rejecting Henderson’s claim that he could not
    
    be found guilty of first-degree robbery because the State had not proved
    
    he had knowledge or intent a dangerous weapon would be used, that
    
    court said,
    
                Henderson was involved in the planning and execution
          of the robbery. He was there when the note threatening to
          “shoot this bitch up” was written. “All persons concerned in
          the commission of a public offense, whether they directly
          commit the act constituting the offense or aid or abet its
          commission, shall be charged, tried, and punished as
          principles.” Iowa Code § 703.1 (2015). Nelson testified they
          all knew a gun would be used. Whether Henderson knew or
          did not know a gun would be involved makes no difference.
    
    The court also denied relief on the remaining issues raised in
    
    Henderson’s pro se brief.
    
          We granted Henderson’s application for further review.
    
          II. Standard of Review.
    
          We review de novo claims of ineffective assistance of counsel. State
    
    v. Harris, 
    891 N.W.2d 182
    , 185 (2017). However, when the claim is that
    
    counsel was ineffective in failing to move for judgment of acquittal, this
                                        11
    
    implicates the question whether such a motion would have been
    
    meritorious, which turns on the sufficiency of evidence. Id. at 186. We
    
    have said that “no reasonable trial strategy could permit a jury to
    
    consider a crime not supported by substantial evidence.”           State v.
    
    Schlitter, 
    881 N.W.2d 380
    , 390 (Iowa 2016); see also State v. Schories,
    
    
    827 N.W.2d 659
    , 664–65 (Iowa 2013). In making determinations on the
    
    sufficiency of the evidence, we view the evidence in the light most
    
    favorable to the State and will consider whether there is substantial
    
    evidence supporting the defendant’s conviction. See State v. Huser, 
    894 N.W.2d 472
    , 490 (Iowa 2017).        Evidence is substantial if it would
    
    convince a rational trier of fact the defendant is guilty beyond a
    
    reasonable doubt. State v. Ortiz, 
    905 N.W.2d 174
    , 180 (Iowa 2017); State
    
    v. Reed, 
    875 N.W.2d 693
    , 704–05 (Iowa 2016).
    
          III. Analysis.
    
          Henderson’s application for further review raised only whether
    
    there was sufficient evidence to conclude Henderson knew or intended a
    
    dangerous weapon would be used in the robbery. We will exercise our
    
    discretion to let the court of appeals decision stand as the final decision
    
    on the remaining issues raised on appeal.        See State v. Martin, 
    877 N.W.2d 859
    , 865 (Iowa 2016).      Henderson asks that the sufficiency of
    
    this evidence be addressed either directly or, if necessary, through the
    
    pathway of ineffective assistance of counsel.
    
          At the close of the State’s case, Henderson’s counsel moved for a
    
    judgment of acquittal based on a claimed lack of corroboration of
    
    Nelson’s accomplice testimony. He made no argument that the State had
    
    failed to prove Henderson’s knowledge of a dangerous weapon. We have
    
    held a defendant’s motion for judgment of acquittal only serves to
    
    preserve error on a claim of insufficient evidence for appellate review in a
                                        12
    
    criminal case if it “identifies the specific grounds raised on appeal.” See
    
    State v. Brubaker, 
    805 N.W.2d 164
    , 170 (Iowa 2011) (quoting State v.
    
    Truesdell, 
    679 N.W.2d 611
    , 615 (Iowa 2004)); see also State v. Ross, 
    845 N.W.2d 692
    , 700 (Iowa 2014) (“Trial counsel is required to make a
    
    specific objection in his or her motion for judgment of acquittal in order
    
    to preserve error.”). Because the motion did not mention the deficiency
    
    in proof now raised on appeal, we find that error was not preserved. See
    
    Brubaker, 805 N.W.2d at 170.             However, as already discussed,
    
    Henderson argues in the alternative that his trial counsel was ineffective
    
    and we can reach the sufficiency-of-evidence issue that way.
    
          Contrary to the district court’s observations at the sentencing
    
    hearing, we do not believe the record contains evidence that Henderson
    
    saw or knew about Anderson handing the gun through the window of the
    
    BMW to either Plummer or Mallett. Nelson stated that Henderson was
    
    not with them at that point.     In fact, in its appellate brief the State
    
    concedes that “Henderson had already driven to his spot.”
    
          Likewise, we do not believe the record supports the court of
    
    appeals’ statements that Henderson was present when the note
    
    threatening to “shoot this bitch up” was written or that Nelson testified
    
    everyone knew a gun would be used. To the contrary, Nelson testified
    
    (1) the plan on February 9 was not to use a gun, (2) the note was written
    
    later, and (3) Nelson himself learned for the first time a gun would be
    
    used when Anderson handed the firearm to Plummer or Mallett just
    
    before they entered the pharmacy.
    
          The State, however, insists the test is foreseeability rather than
    
    knowledge: “Contrary to Henderson’s claim, the issue is not whether he
    
    knew a gun would be used in the robbery to establish his guilt but
    
    whether it was foreseeable that a gun would be used.” The State also
                                       13
    
    points to Nelson’s testimony that the group already knew Anderson
    
    possessed a gun and maintains the jury didn’t have to accept Nelson’s
    
    testimony that the plan was not to use a gun. The State adds, “It makes
    
    little sense that the young men would plan a robbery at a pharmacy with
    
    four employees present and not have a weapon when one was readily
    
    available.”
    
          We do not agree that foreseeability, as opposed to knowledge or
    
    intent, is enough to sustain an aiding-and-abetting conviction.       This
    
    conflates aiding and abetting with joint criminal conduct. We have held
    
    that “[j]oint criminal conduct ‘contemplates two acts—the crime the joint
    
    actor has knowingly participated in, and a second or resulting crime that
    
    is unplanned but could reasonably be expected to occur in furtherance of
    
    the first one.’ ” State v. Tyler, 
    873 N.W.2d 741
    , 752 (Iowa 2016) (quoting
    
    State v. Rodriguez, 
    804 N.W.2d 844
    , 852 (Iowa 2011)). Here, however,
    
    only one crime occurred—the robbery itself.
    
          Aiding and abetting requires only a single crime, but the State
    
    must prove the defendant “knew of the crime at the time of or before its
    
    commission.” State v. Tangie, 
    616 N.W.2d 564
    , 574 (Iowa 2000). As we
    
    have held,
    
                To sustain a conviction on the theory of aiding and
          abetting, the record must contain substantial evidence the
          accused assented to or lent countenance and approval to the
          criminal act either by active participation or by some manner
          encouraging it prior to or at the time of its commission. The
          State must prove the accused knew of the crime at the time
          of or before its commission. However, such proof need not
          be established by direct proof, it may be either direct or
          circumstantial.
    
    Id. (citation omitted).    “Knowledge is essential; however, neither
    
    knowledge nor presence at the scene of the crime is sufficient to prove
    
    aiding and abetting.” State v. Neiderbach, 
    837 N.W.2d 180
    , 211 (Iowa
                                         14
    
    2013) (quoting State v. Hearn, 
    797 N.W.2d 577
    , 580 (Iowa 2011)). “The
    
    guilt of a person who aids and abets the commission of a crime must be
    
    determined upon the facts which show the part the person had in it
    
    . . . .” Iowa Code § 703.1.
    
          To restate the matter, under a joint criminal conduct theory, the
    
    question is whether the charged, later crime was foreseeable, regardless
    
    of whether the defendant had the specific intent to commit that crime or
    
    knowledge that his or her compatriot was committing the crime.          See
    
    State v. Countryman, 
    572 N.W.2d 553
    , 562 (Iowa 1997) (finding that
    
    “[f]rom the joint conduct in committing the first crime it follows that [the
    
    defendant] can be found vicariously responsible for other foreseeable
    
    crimes of a confederate” and rejecting the notion that “she should not be
    
    convicted without proving she had a mens rea to commit murder”). The
    
    same is not true under the theory of aiding and abetting.        There the
    
    defendant must have “knowingly aided the principal” in committing the
    
    crime. State v. Satern, 
    516 N.W.2d 839
    , 843 (Iowa 1994).
    
          Therefore, in the context of a first-degree robbery prosecution
    
    under the dangerous weapon alternative, the State must prove the
    
    alleged aider and abettor had knowledge that a dangerous weapon would
    
    be or was being used.         See Iowa Code § 711.2 (“A person commits
    
    robbery in the first degree when, while perpetrating a robbery, the person
    
    . . . is armed with a dangerous weapon.”).       Otherwise, the aider and
    
    abettor may have knowledge or intent to commit a robbery, but not first-
    
    degree robbery.
    
          Federal law follows this approach: “We have previously found that
    
    intent requirement [for aiding and abetting] satisfied when a person
    
    actively participates in a criminal venture with full knowledge of the
    
    circumstances constituting the charged offense.”      Rosemond v. United
                                         15
    
    States, 
    572 U.S.
    ___, ___, 
    134 S. Ct. 1240
    , 1248–49, 1251 (2014) (holding
    
    that to be convicted of aiding and abetting the crime of using a firearm
    
    during drug trafficking, the defendant “needed advance knowledge of a
    
    firearm’s presence”).   “[A]n aiding and abetting conviction requires not
    
    just an act facilitating one or another element, but also a state of mind
    
    extending to the entire crime.” Id. at 
    572 U.S.
    at ___, 134 S. Ct. at 1248.
    
    Hence, to sustain an armed robbery conviction based on aiding and
    
    abetting under federal law, the defendant must have known a
    
    confederate would be armed. See United States v. Akiti, 
    701 F.3d 883
    ,
    
    887 (8th Cir. 2012) (upholding the conviction of a getaway driver for
    
    aiding and abetting armed robbery because “a reasonable jury could
    
    have concluded Akiti knew Tang would be armed during the robbery”);
    
    United States v. Easter, 
    66 F.3d 1018
    , 1024 (9th Cir. 1995) (“A rational
    
    jury could infer, based upon the conversation the night before the
    
    robbery, and Lea’s opportunity on the way to the bank to overhear a
    
    discussion about who was going to carry the guns, and to see at least
    
    one of the guns, that Lea knew the robbery was going to be an armed
    
    one.”); United States v. Grubczak, 
    793 F.2d 458
    , 462 n.1 (2d Cir. 1986)
    
    (noting “that in a prosecution for aiding and abetting armed bank
    
    robbery, the government must establish not only that the defendant
    
    knew that a bank was to be robbed and became associated and
    
    participated in that crime, but also that the defendant ‘knew that [the
    
    principal] was armed and intended to use the weapon, and intended to
    
    aid him in that respect’ ” (alteration in original) (quoting United States v.
    
    Longoria, 
    569 F.2d 422
    , 425 (5th Cir. 1978))).
          Most state jurisdictions appear to follow the same approach. See
    Robinson v. United States, 
    100 A.3d 95
    , 106–08 (D.C. 2014) (“Actual
    knowledge of the weapon is required . . . . We perforce hold that the trial
                                        16
    
    court in the present case erred by instructing the jury, in response to its
    inquiries, that a defendant could be convicted of second-degree burglary
    while armed as an aider and abettor if she had reason to know the
    principal perpetrator of that crime was armed.”); Hemphill v. State, 
    531 S.E.2d 150
    , 151–52 (Ga. Ct. App. 2000) (approving a pattern jury
    instruction requiring “that the defendant had knowledge that the crime
    of armed robbery was being committed” and noting that the defendant—
    who   was   the   driver—“knew     that   his   accomplices   had   guns”);
    Commonwealth v. Brown, 
    81 N.E.3d 1173
    , 1182 (Mass. 2017) (“In this
    case, where the predicate felonies were attempted armed robbery and
    armed home invasion, the Commonwealth also was required to prove
    that the defendant knew that one of his accomplices possessed a
    firearm.”); Brooks v. State, 
    180 P.3d 657
    , 662 (Nev. 2008) (“Here, the
    State presented evidence that Brooks drove the vehicle to and from
    Davis’s home and knew the location of Davis’s discarded purse.
    However, it is unclear whether Brooks had knowledge of the other
    offender’s use of the gun. . . . [T]he State must also prove that Brooks
    had knowledge of the use of the deadly weapon.”); State v. Bohannan,
    
    503 A.2d 396
    , 399 (N.J. Super. Ct. App. Div. 1986) (“[A]n accomplice will
    be guilty of armed robbery, regardless of whether he actually possessed
    or used a weapon, only where he had the purpose to promote or facilitate
    an armed robbery.”); Wyatt v. State, 
    367 S.W.3d 337
    , 341 (Tex. App.
    2012) (“We agree with appellant that even if the jury believed that
    appellant participated in the robbery by serving as Tolbert’s getaway
    driver and sharing in the proceeds of the robbery, the record contains no
    evidence that appellant ever was aware that the firearm ‘would be, was
    being, or had been used or exhibited during the offense.’ ”); State v.
    Wimpie, No. 01-1634-CR, 
    2002 WL 234238
    , at *3 (Wis. Ct. App. Feb. 19,
    2002) (per curiam) (affirming Wimpie’s conviction for armed robbery
                                        17
    
    because “a jury could conclude that Wimpie knew that Martin claimed to
    have a gun”).    But see State v. McCalpine, 
    463 A.2d 545
    , 551 (Conn.
    1983) (finding the state did not have to prove intent to use a deadly
    weapon in order to establish accessory liability); People v. Young, 
    318 N.W.2d 606
    , 607 (Mich. Ct. App. 1982) (determining it was not necessary
    that “the defendant knew that Bennett was armed” but only that
    “carrying or using a weapon to commit the robbery was fairly within the
    scope of the common unlawful enterprise”); State v. Ward, 
    473 S.W.3d 686
    , 692–93 (Mo. Ct. App. 2015) (holding that under Missouri law, a
    defendant may be convicted under a theory of accomplice liability for
    first-degree robbery if the use of a firearm could be “reasonably
    anticipated”).
          Of course, knowledge can be proved by circumstantial evidence.
    See State v. McDowell, 
    622 N.W.2d 305
    , 308 (Iowa 2001).          The State
    notes the following: (1) Henderson knew Anderson possessed a weapon
    (although he didn’t regularly carry it with him), (2) it would make little
    sense for two people to try to rob a store staffed by four people without a
    gun if one was available, and (3) the jury didn’t have to believe Nelson’s
    testimony that the plan was not to use a gun and the plan only changed
    shortly before the robbery after Henderson had left the group.
          On our review of this record, we hold a reasonable jury could not
    have found beyond a reasonable doubt that Henderson knew a gun
    would be used. Notably, the prosecutor argued to the jury only that the
    use of a gun was “foreseeable.” While the jury did not have to believe
    everything Nelson said, there was no contrary evidence as to how the
    robbery plan developed. It isn’t implausible that a group of young men
    would think that two of them without using a gun could successfully rob
    a pharmacy staffed by two men and two women.            See, e.g., State v.
    Copenhaver, 
    844 N.W.2d 442
    , 445–46 (Iowa 2014) (describing unarmed
                                              18
    
    bank robbery committed by a lone individual while two tellers and two
    bank officers were in the bank). One good reason not to use a firearm is
    Iowa’s 17.5 year mandatory minimum prison term for first-degree
    robbery, one of the most severe in the country.                    See Iowa Code
    § 902.12(5); Ed Mansfield & Julia Steggerda-Corey, Mandatory Minimum
    Sentencing: A Closer Look at Iowa 17–20 tbl.4 (unpublished manuscript)
    (on file with authors).
           Because there was insufficient evidence to convict Henderson of
    first-degree robbery as an aider and abettor due to a failure of proof on
    the dangerous weapon element, that conviction must be set aside. The
    question remains what to do next. The jury necessarily found sufficient
    evidence to establish the other elements of first-degree robbery, namely,
    intent to commit a theft and assault.                The jury was instructed in
    Instruction No. 23 that if they found only those two elements, and not
    the dangerous weapon element, they should find the defendant guilty of
    the lesser included offense of second-degree robbery. 2 Accordingly, the
    appropriate remedy is to remand the case for the district court to enter
    judgment and sentence on the lesser included offense of robbery in the
    second degree. See Ortiz, 905 N.W.2d at 183; State v. Morris, 
    677 N.W.2d 787
    , 788–89 (Iowa 2004); State v. Pace, 
    602 N.W.2d 764
    , 773 (Iowa
    1999).
           IV. Conclusion.
           For the foregoing reasons, we reverse Henderson’s conviction and
    sentence on first-degree robbery and remand for entry of conviction and
    sentence on second-degree robbery.
           DECISION OF COURT OF APPEALS VACATED; DISTRICT
    COURT      JUDGMENT         REVERSED           AND   CASE     REMANDED          WITH
    DIRECTIONS.
    
           2Thiscase predates the legislation that established third-degree robbery. See
    2016 Iowa Acts ch. 1104, § 4 (codified at Iowa Code § 711.3A (2017)); Ortiz, 905 N.W.2d
    at 180.