IN THE COURT OF APPEALS OF IOWA
No. 15-1895
Filed December 21, 2016
STATE OF IOWA,
Plaintiff-Appellee,
vs.
ARTHUR LAMAR BENSON,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Jeffrey D. Farrell,
Judge.
Arthur Benson appeals his convictions of first-degree burglary and nine
counts of first-degree robbery. AFFIRMED.
Erin M. Carr of Carr & Wright, P.L.C., Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Thomas Bakke and Kevin Cmelik,
Assistant Attorneys General, for appellee.
Heard by Danilson, C.J., and Doyle and McDonald, JJ.
2
DOYLE, Judge.
Arthur Benson appeals his convictions of first-degree burglary and nine
counts of first-degree robbery. He contends the trial court abused its discretion
in permitting one of the investigating officers to testify as an expert witness
regarding cell phone records. He also contends the evidence fails to corroborate
the co-conspirator testimony offered at trial, and therefore, the evidence is
insufficient evidence to support his convictions.
Our review shows the trial court acted within its discretion in allowing the
expert witness testimony regarding the cell phone records. Furthermore, there is
sufficient independent evidence to corroborate the accomplice testimony
implicating Benson’s involvement in the crimes for which he was convicted.
Accordingly, we affirm.
I. Background Facts and Proceedings.
The State charged Benson and four others with crimes relating to their
participation in a robbery. A joint trial for Benson and a co-defendant, Joseph
Rendon, commenced in September 2015. The jury found both men guilty as
charged. In affirming Rendon’s convictions, this court summarized the facts of
the crime as follows:
On September 24, 2014, Thomas Dean hosted an illegal
high-stakes poker game in an outbuilding at his home on 86th
Street in Johnston. Rendon had previously attended a poker
tournament at Dean’s home and knew there would be a large
amount of cash at the game. At about 1:30 a.m. on September 25,
four men—Garvis Thompson, Arthur Benson, Jacari Benson
(Jacari), and David Moore—came into the outbuilding. Three of the
men carried guns, and the fourth had a bag. The intruders took
money and cell phones from the people participating in the poker
game. The intruders made the poker players lay on the floor, and
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then ran out to their get-a-way vehicle, a Chevrolet Impala, driven
by Benson’s girlfriend, McKenzie McCracken.
One of the poker players, Justin Lisk, ran out, got into his
pickup truck, and followed the Impala south on 86th Street. Lisk’s
cell phone had not been taken by the intruders, and he called 911
to inform officers of the intruders’ location.1 McCracken lost control
of the Impala and it struck another vehicle. The occupants of the
Impala abandoned it and fled on foot. Officers set up a perimeter in
an attempt to capture the criminals. The only vehicle to come
through the perimeter was a maroon SUV.
Officers found paperwork addressed to Moore in the Impala.
Also, fingerprints from Thompson and Jacari were found on the
door handles of the Impala and Thompson’s DNA was found on a
black ski mask. Officers picked up Thompson, Benson, Jacari, and
Moore, and analyzed their cell phones. They found a pattern of
calls between the men and with Rendon. The subscriber for
Thompson’s cell phone was Rendon. Video taken by a security
camera on the corner of 86th Street and Meredith Avenue from the
night in question showed the Impala, followed by Lisk’s pickup,
followed by a maroon SUV. On September 26, a maroon SUV,
driven by Rendon, was stopped by State troopers and given a
warning for speeding on eastbound Interstate 80.
Rendon [and Benson were] charged with burglary in the first
degree and nine counts of robbery in the first degree . . . .
Moore accepted a proffer agreement from the State and
testified at [the] trial. Moore testified he was Thompson’s cousin
and often went to Thompson’s apartment. Moore stated Rendon
told him and Thompson about the poker games and how it would
be easy to take the money. He stated Rendon had the idea for the
robbery and Thompson planned the details. Moore testified
Rendon brought over gloves for the group and zip ties to use on the
poker players.2 Moore stated Rendon dropped him off at Dean’s
home, and Rendon was to drive around to make sure no one else
was in the vicinity.
Thompson also entered into a proffer agreement with the
State. Thompson testified Rendon supplied him with drugs and
Thompson distributed the drugs to Benson and Jacari, who helped
sell the drugs. Thompson stated Rendon came to him with the idea
of robbing a poker game, and they discussed the idea with Moore,
Benson, and Jacari. Thompson testified Rendon was supposed to
drive behind the Impala to make sure no one was following them
after the robbery. Thompson stated they obtained $17,000 in the
robbery and Rendon received $8000 of that amount. The day after
the robbery, Rendon drove Thompson to the Quad Cities in a
maroon SUV. Thompson testified he and Rendon planned to use
the money obtained in the robbery to purchase more drugs, which
they would then sell.
4
....
Detective Tyler Tompkins of the Johnston Police Department
testified he had taken several classes on analyzing cell phones and
cell phone records. Detective Tompkins testified the cell phone
records showed Rendon, Thompson, Moore, and Jacari were often
in contact with each other before the robbery and after the robbery.
According to the records, the cell phone towers used for the calls
were consistent with the testimony of Thompson, Moore, and Jacari
about their activities on September 24 and 25, as well as Rendon
and Thompson’s drive to the Quad Cities on September 26.
1
During the poker game, Lisk placed his cell phone on a shelf in the
outbuilding and it was not taken by the intruders. Lisk grabbed his cell
phone as he ran out to follow the intruders.
2
Thompson also testified Rendon provided zip ties to use on the poker
players. The intruders, Thompson, Benson, Jacari, and Moore, did not
use the zip ties. Moore, who brought the zip ties to the robbery, testified
he became too nervous and did not get them out.
State v. Rendon, No. 15-1832, 2016 WL 6270092, at *1-2 (Iowa Ct. Oct. 26,
2016).
After the State presented its case-in-chief at trial, Benson moved for
judgment of acquittal, arguing there was insufficient evidence to corroborate the
accomplices’ testimony. The court denied the motion, and the jury found Benson
guilty as charged. The court also denied Benson’s motion in arrest of judgment
and motion for new trial before sentencing Benson to prison.
Benson appeals,1 making two claims: (1) the trial court abused its
discretion in allowing Detective Tompkins to testify as an expert witness
1
Aaugh! In over sixty opinions filed in the last eight years we have noted an all-too-
frequent error in compiling the appendix: the failure to place a witness’s name at the top
of each appendix page where the witness’s testimony appears. See Iowa R. App. P.
6.905(7)(c) (“The name of each witness whose testimony is included in the appendix
shall be inserted on the top of each appendix page where the witness’s testimony
appears.” (emphasis added)). Wearily, we make the same observation of the parties’
appendix in this case. Having the name at the top of each page makes it much easier
for us to navigate an appendix, particularly when filed in electronic form. Additionally,
omissions of transcript pages were not indicated by a set of three asterisks. See Iowa
R. App. P. 6.905(7)(e). Furthermore, the exhibits included in the appendix were not
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regarding the cell phone tower records and (2) there is insufficient evidence to
corroborate the accomplice testimony.
II. Expert Witness Testimony.
We review the admissibility of expert witness testimony for an abuse of
discretion. See State v. Hicks, 791 N.W.2d 89, 98 (Iowa 2010). This includes
determinations regarding whether a witness has sufficient expertise to express
an opinion on a matter of specialized knowledge. See State v. Ogg, 243 N.W.2d
620, 621-22 (Iowa 1976); State v. Walker, 236 N.W.2d 292, 296 (Iowa 1975).
We will not overturn the trial court’s ruling unless it exercised its discretion on
clearly untenable grounds or to a clearly unreasonable extent. See State v.
Rodriquez, 636 N.W.2d 234, 245 (Iowa 2001).
Traditionally, Iowa has taken a liberal view regarding the admission of
expert opinion evidence. See State v. Tyler, 867 N.W.2d 136, 153 (Iowa 2015);
Leaf v. Goodyear Tire & Rubber Co., 590 N.W.2d 525, 532 (Iowa 1999) (citing
court’s history of maintaining liberal view on admissibility). The question is
whether the testimony will assist the jury in deciding an issue. See State v.
Schutz, 579 N.W.2d 317, 319 (Iowa 1998). Benson concedes there “is no
dispute” that cell phone tower records can be used to approximate a person’s
location based on the location and that expert testimony regarding cell phone
tower records would be useful in assisting the jury to interpret the cell phone
concisely described in the table of contents. See Iowa R. App. P. 6.905(4)(c). By this
note, we do not single out these parties or their attorneys, for we have made similar
observations in numerous appeals. Our comment is directed to the appellate bar in
general. While the noted infractions may seem trivial, the violated rules are not just
some rigmarole designed to create more work for the appellate lawyer. Compliance with
the rules saves time, reduces frustration, and assists this court in meeting its mandate to
achieve maximum productivity in deciding a high volume of appeals. See Iowa Ct. R.
21.11.
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tower records. He instead challenges the officer’s qualifications to interpret the
records for the jury.
Because unreliable evidence cannot assist the jury, the court must make a
threshold determination regarding a witness’s reliability as an expert. See id.
Iowa Rule of Evidence 5.702 states a witness may be qualified as an expert “by
knowledge, skill, experience, training, or education.” Although witnesses must be
qualified in the area of their testimony based on one of these five areas of
qualification, there is no particular degree, license, or education required for
witnesses to be considered experts. See Quad City Bank & Trust v. Jim Kircher
& Assocs., P.C., 804 N.W.2d 83, 92 (Iowa 2011). The question before us is
whether the officer’s knowledge, skill, experience, training, or education provided
him with the requisite experience to opine on the question of Benson’s location
based on the cell phone tower records.
In Rendon, we determined the trial court acted within its discretion in
admitting Detective Tompkins’s testimony as an expert witness with regard to the
cell phone records because “Detective Tompkins had sufficient knowledge, skill,
experience, and training to interpret the cell phone records and to assist the jury
in understanding those records.” See Rendon, 2016 WL 6270092, at *4.
Benson complains that Detective Tompkins “was unable to articulate when a cell
tower would get overloaded and be forced to relay calls to a different tower” and
that he was “unfamiliar and untrained on the current 4G technology or how the
new technology would affect cell tower communication even though that was the
purpose of his offered testimony.” As we stated in Rendon, the complaint that
Detective Tompkins did not have “up-to-date technical knowledge” goes to the
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weight of the evidence, not its admissibility. See id.; see also Schutz, 579
N.W.2d at 319 (noting the degree of certainty expressed by the expert goes to
the weight of the testimony rather than its admissibility).
Because Detective Tompkins possessed sufficient knowledge and training
to assist the jury in interpreting the cell phone records, the trial court was within
its discretion to allow Detective Tompkins to testify as an expert.2
III. Sufficiency of the Evidence.
Benson also argues the trial court erred in denying his motions for
judgment of acquittal and new trial because the State failed to present sufficient
evidence to corroborate the testimony of the accomplices. Although Rendon
concedes there is “no question” his accomplices’ testimony implicated him in the
robbery, he argues there is little other evidence to connect him to the crimes.
The existence of corroborating evidence is a legal question for the court.
If the evidence is legally adequate to corroborate the accomplice testimony, the
question of sufficiency of that evidence is for the jury to decide. See State v.
Hutchinson, 341 N.W.2d 33, 37 (Iowa 1983). Because Benson is challenging the
court’s determination that sufficient corroborating evidence existed to submit the
case to the jury, our review is for correction of errors at law. See State v. Bugley,
562 N.W.2d 173, 176 (Iowa 1997). We view the evidence in the light most
favorable to the State and indulge every legitimate inference that may be made
from it in favor of the State. See id.
2
We note that another court suggests “the better approach is to require the prosecution
to offer expert testimony to explain the functions of cell phone towers, derivative
tracking, and the techniques of locating and/or plotting the origins of cell phone calls
using cell phone records.” Wilder v. State, 991 A.2d 172, 198 (Md. Ct. Spec. App.
2010).
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Iowa Rule of Criminal Procedure 2.21(3) states that a defendant may not
be convicted on the testimony of an accomplice “unless corroborated by other
evidence which shall tend to connect the defendant with the commission of the
offense.” We note that to corroborate accomplice testimony, the evidence must
show more than just the commission of the offense or the circumstances
therefore. See Iowa R. Crim. P. 2.21(3). The testimony of one accomplice
cannot corroborate the testimony of another accomplice. See State v. Barnes,
791 N.W.2d 817, 824 (Iowa 2010). In a joint trial, accomplice testimony must be
corroborated as to each defendant. See State v Brown, 397 N.W.2d 689, 695
(Iowa 1986).
We also note that corroborating evidence need not be direct;
circumstantial evidence is sufficient to corroborate accomplice testimony. See id.
Corroborating evidence does not need to be strong or confirm every material fact
to which the accomplice testifies. See id. Nor is it required to be inconsistent
with the defendant’s innocence. See id. As long as the accomplice’s testimony
is corroborated in some material fact tending to connect the defendant with the
commission of the crime, it is sufficient. See State v. Ware, 338 N.W.2d 707,
710 (Iowa 1983).
Based on accomplice testimony, the jury could surmise Benson received
$2200 for his role in the robbery. A photo from Benson’s Facebook page shows
that on September 25, 2014, Benson added $2000 to a prepaid credit card.
Furthermore, Benson’s cell phone records corroborate his accomplice’s claims
regarding his location on the night of the robbery and that he turned his phone off
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at the time the robbery was committed—an uncharacteristic act, according to
Benson’s cell phone records.
There is sufficient independent evidence to corroborate the accomplice
testimony implicating Benson’s involvement in the crimes for which he was
convicted. Accordingly, the trial court did not err in denying Benson’s motion for
judgment of acquittal or motion in arrest of judgment.
AFFIRMED.