State of Iowa v. Jordan McKim Crawford

IN THE SUPREME COURT OF IOWA

No. 20–0280

Submitted March 31, 2022—Filed May 20, 2022

STATE OF IOWA,

Appellee,

vs.

JORDAN McKIM CRAWFORD,

Appellant.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Jefferson County, Lucy J. Gamon,

Judge.

The defendant challenges the sufficiency of the evidence to support his

convictions for aiding and abetting robbery and ongoing criminal conduct.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT

JUDGMENT OF CONVICTION REVERSED, SENTENCE VACATED, AND

REMANDED FOR RESENTENCING.

Oxley, J., delivered the opinion of the court, in which all justices joined.
 2

Martha J. Lucey, State Appellate Defender, Maria Ruhtenberg, Assistant

Appellate Defender, and Allison Adams (argued), law student, for appellant.

Thomas J. Miller, Attorney General, and Zachary Miller (argued), Assistant

Attorney General, for appellee.
 3

OXLEY, Justice.

Jordan Crawford participated in a three-week crime spree that involved

using a torch to cut into an ATM, robbing a bank, driving to Oregon with the

proceeds to buy marijuana, and then returning to Iowa to sell the drugs. For his

involvement, Crawford was convicted of first-degree robbery and ongoing

criminal conduct, and sentenced to twenty-five years on each. After the court of

appeals affirmed his convictions, we granted further review to determine whether

this crime spree satisfies the requirements for ongoing criminal conduct.

I. Factual Background and Proceedings.

We recite the facts in the light most favorable to the prosecution in

considering Crawford’s challenge to the sufficiency of the evidence to support his

convictions. See State v. Taylor, 689 N.W.2d 116, 131 (Iowa 2004).

Most of the State’s evidence at trial came from the testimony of Ethan

Spray, who participated in the underlying crimes with Crawford and provided

his testimony in exchange for a plea deal. According to Spray, on May 30, 2018,

he and his associates, Ross Thornton and Jordan Crawford, cut into an ATM

using an acetylene torch. It is unclear whether they were successful in recovering

cash from the ATM, but Crawford was not charged related to that incident even

though Spray identified Crawford as the one operating the torch. In any event,

the trio’s alleged crime spree did not stop with the ATM in Brighton. On June 1,

Spray robbed the Pilot Grove Savings Bank in Packwood, Iowa at gunpoint. He

left the bank with approximately $18,000 in cash and jumped into a getaway car

driven by Thornton.
 4

Earlier that morning, Thornton drove his pickup truck to Packwood and

parked it a few miles outside of town. The pickup truck driven by Thornton was

registered to Crawford. Phone records obtained in the ensuing investigation

revealed that during the robbery, Thornton communicated with Crawford, who

was waiting at the Ottumwa residence he shared with Thornton. The roommates

exchanged five phone calls during a twenty-two-minute interval surrounding the

commission of the robbery.

Spray testified that Crawford was supposed to provide him with a face

mask or a hat1 and gloves to wear during the robbery. Crawford supplied the

face mask as directed; however, he forgot the gloves, forcing Spray to cover the

distinctive tattoos on his hands with duct tape instead. After the robbery, the

group removed and burned paper bands that were holding the stolen money

together, along with the two-dollar bills they thought could be traced back to the

bank. When asked if Crawford helped, Spray testified, “Barely. He was in and

out of the room.” Spray identified Thornton as the leader of the group who kept

the money from the robbery. Spray testified the three men had an understanding

as to how the money was going to be used, but he never stated what the

understanding was.

Within days of the robbery, the trio continued their crime spree by taking

a trip to the West Coast to purchase marijuana they intended to sell back in

Iowa. Investigators were able to later follow their movements cross-country

1Spray’s testimony never clarified whether Crawford gave him a hat or a face mask. For

brevity, we will refer to the item as a mask.
 5

through Spray’s cell phone records. Facebook messages sent from Crawford’s

account show his attempts to purchase marijuana in Oregon. The messages also

show Crawford soliciting numerous Facebook contacts upon returning to Iowa,

advertising that he “just got back from Oregon and got that fire green for the

low”. The Facebook messages took place right after the robbery and continued

until June 15.

When the trio arrived home from their trip out west, law enforcement was

busy investigating the bank robbery. The investigation ultimately led them back

to Spray based on the identification of his vehicle, physical descriptions of him

from witnesses, and surveillance footage matching his appearance. Law

enforcement executed search warrants in August for the homes of Spray,

Thornton, and Crawford, and for Crawford’s vehicle. They found $50,000–

$55,000 of cash at Thornton’s home. Officers found a handwritten note in

Spray’s home that read, “Im Freaking out Feds are onto us!! Do you know how

to look for wire taps and bugs?” The officers found no incriminating evidence at

Crawford’s home but did find $470 in cash, two phones, and a “personal use”

amount of marijuana in Crawford’s vehicle. The $470 was never linked back to

the robbery. Crawford’s employer testified that he had recently paid Crawford

over $1,200, and Crawford argued that the cash in his car was from his

paycheck.

Ultimately, Crawford was charged with aiding and abetting the Packwood

bank robbery in violation of Iowa Code sections 711.1(1) and 711.2, and section

703.1 (2019), a class “B” felony. Although Crawford was not charged with the
 6

attempted ATM theft or distribution of marijuana, the prosecutor used those

alleged crimes, along with the Packwood robbery, to file an amended trial

information adding a charge of ongoing criminal conduct in violation of Iowa

Code sections 706A.2(1)(d) and 706A.1(5), also a class “B” felony.

The jury found Crawford guilty on both counts. Crawford appealed,

arguing that the evidence was insufficient to support either conviction. We

transferred the case to the court of appeals. The court of appeals rejected

Crawford’s arguments and affirmed his conviction for both robbery in the first

degree and ongoing criminal conduct. We granted Crawford’s application for

further review.

II. Standard of Review.

We review sufficiency of the evidence claims for correction of errors at law.

State v. Kelso-Christy, 911 N.W.2d 663, 666 (Iowa 2018). When evaluating the

sufficiency of the evidence, we consider “whether, taken in the light most

favorable to the State, the finding of guilt is supported by substantial evidence

in the record.” Id. (quoting State v. Meyers, 799 N.W.2d 132, 138 (Iowa 2011)).

There is substantial evidence if the evidence “would convince a rational fact

finder the defendant is guilty beyond a reasonable doubt.” Id. (quoting Meyers,

799 N.W.2d at 138). We draw all legitimate inferences in support of the verdict.

Taylor, 689 N.W.2d at 131. However, “[e]vidence which merely raises suspicion,

speculation, or conjecture is insufficient.” State v. Casady, 491 N.W.2d 782, 787

(Iowa 1992) (en banc). The evidence must at least raise a fair inference of guilt
 7

as to each essential element of the crime. State v. LaPointe, 418 N.W.2d 49, 51

(Iowa 1988).

III. Error Preservation.

At the close of the State’s case, Crawford made a motion for acquittal and

renewed the motion before the case was submitted to the jury. As the State points

out, Crawford’s motion for acquittal did not specifically identify which elements

of the first-degree robbery charge the evidence failed to prove, and he never

mentioned a lack of evidence about his knowledge that a weapon would be used.

Applying our precedent, the court of appeals agreed with the State that Crawford

failed to preserve error on his challenge to the first-degree robbery conviction.

But after the court of appeals decision, we revisited our precedent

concerning what is needed to preserve a challenge to the sufficiency of the

evidence following a trial. See State v. Crawford, 972 N.W.2d 189, 195–202 (Iowa

2022). In State v. Crawford, we held, “A defendant’s trial and the imposition of

sentence following a guilty verdict are sufficient to preserve error with respect to

any challenge to the sufficiency of the evidence raised on direct appeal.” Id. at

202. Therefore, we may review Crawford’s challenge to the sufficiency of the

evidence for both charges in this case, despite any deficiencies in his motion for

acquittal.

IV. Analysis.

We consider two issues on appeal: (1) whether there was sufficient

evidence to convict Crawford of robbery under an aiding and abetting theory and
 8

(2) whether there was sufficient evidence to convict Crawford of committing

ongoing criminal conduct.

A. Aiding and Abetting. Sufficient evidence to support a conviction under

a theory of aiding and abetting exists if there is “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.”

State v. Hearn, 797 N.W.2d 577, 580 (Iowa 2011) (quoting State v. Ramirez, 616

N.W.2d 587, 591–92 (Iowa 2000) (en banc), overruled on other grounds by State

v. Reeves, 636 N.W.2d 22, 25–26 (Iowa 2001)). Knowledge of the crime is

essential; “however, neither knowledge nor presence at the scene of the crime is

sufficient to prove aiding and abetting.” State v. Barnes, 204 N.W.2d 827, 828

(Iowa 1972). “Aiding and abetting may be proven by direct or circumstantial

evidence. Direct and circumstantial evidence are equally probative.” State v.

Huser, 894 N.W.2d 472, 491 (Iowa 2017) (citation omitted).

The jury was instructed on both first- and second-degree robbery, and it

found Crawford guilty of robbery in the first degree. Crawford challenges the

evidence to support a conviction for any robbery. We start with first-degree

robbery.

1. First-degree robbery. A person who “purposely inflicts or attempts to

inflict serious injury, or is armed with a dangerous weapon” during a robbery

commits first-degree robbery; all other robberies are second-degree robbery. Iowa

Code §§ 711.2–.3. The jury instructions required the State to prove the following

elements of first-degree robbery:
 9

1. On or about the 1st day of June, 2018, the defendant had
the specific intent to commit a theft, either as principal or as aider
and abettor.

2. To carry out his intention or to assist another to commit
the theft or to escape from the scene, with or without the stolen
property, the defendant aided and abetted another in the robbery of
the Pilot Grove Savings Bank, during which time Darrell Hoehne was
threatened with, or purposefully placed in immediate fear of serious
injury.

3. The defendant aided and abetted another who was armed
with a dangerous weapon.

“[I]n 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.” State v.

Henderson, 908 N.W.2d 868, 876 (Iowa 2018). “Otherwise, the aider and abettor

may have knowledge or intent to commit a robbery, but not first-degree robbery.”

Id.

Crawford argues the State failed to produce evidence showing he knew

Spray would be armed when he committed the robbery. To this point, Spray

testified that Crawford had nothing to do with the gun. The State produced no

other evidence concerning Crawford’s knowledge about Spray’s use of a weapon.

The State concedes that the record lacked evidence tending to prove Crawford

knew Spray would use a gun, resisting Crawford’s appeal of his conviction for

first-degree robbery only on preservation grounds. Crawford resolved any

potential error preservation issues, and we reject the State’s argument. See 972

N.W.2d 189 at 202. We set aside Crawford’s conviction on the first-degree

robbery charge because the State failed to offer any evidence to satisfy the
 10

dangerous weapon element of first-degree robbery. See Henderson, 908 N.W.2d

at 876.

2. Second-degree robbery. Even though the jury did not return a guilty

verdict for second-degree robbery, having found Crawford guilty of first-degree

robbery, the jury was instructed that if it found the first two elements, but not

the dangerous weapon element, it should find Crawford guilty of the lesser

included offense of second-degree robbery.

Crawford argues that the State failed to offer sufficient evidence that he

possessed the specific intent to commit the robbery, the second element listed in

the jury instructions. Specifically, Crawford argues that the State failed to prove

that he provided Spray with the mask with the specific intent it would be used

in the robbery. The State counters that supplying the mask, coupled with phone

records showing his contemporaneous communications with Thornton who was

driving Crawford’s truck, allowed the jury to infer Crawford’s intent to assist in

completing the crime. Intent can seldom be proved by direct evidence. See State

v. Olson, 373 N.W.2d 135, 136 (Iowa 1985). Consequently, proof of intent usually

arises from circumstantial evidence and inferences reasonably drawn from the

circumstances. See id.

Aiding and abetting means to “assent[] to or len[d] countenance and

approval to the criminal act by either actively participating or encouraging it

prior to or at the time of its commission.” Ramirez, 616 N.W.2d at 591–92. The

most incriminating evidence offered by the State was the direct testimony by

Spray as to Crawford’s involvement in the plan to commit, and subsequently
 11

conceal, the Packwood bank robbery. But a conviction cannot be based solely on

the testimony of an accomplice; it must be corroborated by other evidence that

demonstrates a connection between the defendant and the commission of the

crime. See Iowa R. Crim. P. 2.21(3). “Corroborative evidence need not be strong

as long as it can fairly be said that it tends to connect the accused with the

commission of the crime and supports the credibility of the accomplice.” State v.

Barnes, 791 N.W.2d 817, 824 (Iowa 2010) (quoting State v. Berney, 378 N.W.2d

915, 918 (Iowa 1985), overruled on other grounds by State v. Bruce, 795 N.W.2d

1 (Iowa 2011)). Phone records offered by the State showed Crawford called

Thornton, who drove Crawford’s truck to commit the crime, five times

immediately before and after the robbery. These independent records sufficiently

corroborate Spray’s testimony about Crawford’s involvement in the crime.

The State also points to evidence of Crawford’s conduct after the robbery,

which allowed the jury to infer his participation in the scheme and establish

intent. Evidence of a defendant’s “ ‘presence, companionship, and conduct before

and after the offense is committed’ may be enough from which to infer a

defendant’s participation in the crime.” State v. Lewis, 514 N.W.2d 63, 66 (Iowa

1994) (quoting State v. Miles, 346 N.W.2d 517, 520 (Iowa 1984)). Crawford helped

burn the money bands after Spray and Thornton returned to the house Crawford

shared with Thornton, which provides additional evidence to support a

reasonable inference he intended to participate in the robbery.

The evidence against Crawford is similar to what we have found sufficient

in other cases to support an aiding and abetting robbery conviction. In State v.
 12

Hearn, we upheld a conviction for aiding and abetting second-degree robbery

based on evidence that the defendant was with his brother and cousin shortly

before a carjacking, the defendant admitted to police he knew the people in the

stolen car after it crashed, and he drove another car in an attempt to help the

carjackers escape, at one point swerving at a police car. 797 N.W.2d at 580–81.

Evidence of the defendant’s actions before and after the carjacking provided

substantial evidence to support the verdict by allowing the jury to infer the

defendant’s involvement. Id. We reached a similar conclusion in State v.

Jefferson, 574 N.W.2d 268, 277 (Iowa 1997). In that case, evidence that the

defendant drove to a convenience store with the gunman, parked in an

inconvenient location behind the store, failed to intervene or protest when the

gunman demanded money and forced the clerk into the back of the store, and

then left with the gunman provided circumstantial evidence to support the jury’s

rejection of the defendant’s testimony that he thought they were just stopping

for directions. Id. Here, the State presented evidence comparable to that found

sufficient to establish aiding and abetting second-degree robbery in Hearn and

Jefferson.

We reverse Crawford’s conviction for robbery in the first degree and

remand for the district court to enter judgment and sentence on the lesser

included offense of robbery in the second degree. See Henderson, 908 N.W.2d at

878–79; State v. Ortiz, 905 N.W.2d 174, 182–83 (Iowa 2017) (remanding to the

district court to enter judgment and resentence on the lesser included offense of

third-degree robbery when there was sufficient evidence to support a finding of
 13

third-degree robbery but insufficient evidence to support second-degree

robbery).

B. Ongoing Criminal Conduct. Crawford was also convicted of violating

Iowa Code section 706A.2(1), the criminal enterprise prong of Iowa’s ongoing

criminal conduct statute. As relevant to Crawford’s conviction, it is unlawful for

a person to: (1) knowingly conduct or participate in the affairs of an enterprise

(2) through “specified unlawful activity” (3) on a continuing basis. Id. §

706A.2(1)(c). The State’s theory at trial was that Crawford, Spray, and Thornton

engaged in an enterprise to steal money from the ATM in Brighton and the Pilot

Grove Savings Bank in Packwood and use the stolen money to finance a drug

operation by purchasing marijuana in Oregon and reselling it in Iowa. Crawford

does not dispute that his involvement with Spray and Thornton could comprise

an enterprise, so we focus on the other two elements of the offense.

To place Crawford’s conviction in context, we note that Iowa’s ongoing

criminal conduct statute was “patterned after the Model Ongoing Criminal

Conduct Act, which was part of the Report of the President’s Commission on

Model State Drug Laws in 1993.” State v. Olsen, 618 N.W.2d 346, 348 & n.1

(Iowa 2000) (en banc) (noting Iowa as the only state to have enacted an ongoing

criminal conduct statute). The goal of the model act was to “defend legitimate

commerce from organized criminal activity and remedy the economic effects of

crime.” Id. Likewise, “the paramount purpose of Iowa’s ongoing criminal conduct

statute is, like the model act, to combat criminal networks and enterprises.” Id.

at 350 (“This is evident from the overall framework of the statute.”).
 14

The statute is built around the phrase “specified unlawful activity.” But

where the model act limits that definition “to racketeering offenses or offenses

that represent the key components of ongoing criminal networks,” the Iowa

statute broadly applies the phrase to “any indictable offense, limited only to those

offenses ‘committed for financial gain on a continuing basis.’ ” Id. (quoting Iowa

Code § 706A.1(5)). The continuing basis requirement serves to limit the statute’s

reach to a course of organized or planned ongoing illegal activity as opposed to

merely isolated criminal acts. See State v. Reed, 618 N.W.2d 327, 334–35 (Iowa

2000) (en banc). A conviction is a class “B” felony, subjecting a defendant to a

twenty-five-year prison term that can be run consecutive to convictions for the

underlying predicate offenses. See Iowa Code § 706A.4; id. § 902.9(1)(b); see also

Anna T. Stoeffler, Note, Iowa’s State RICO Statute: Wreaking Havoc on Iowa’s

Criminal Justice System, 102 Iowa L. Rev. 825, 833 (2017) (discussing the

breadth of activity covered by the Iowa ongoing criminal conduct statute relative

to other state RICO statutes and cautioning that “a conviction under the IOCCA

adds substantial time to the sentence for a defendant’s predicate offense”).

Crawford argues that the State failed to produce substantial evidence that

he participated in “specified unlawful activity” as defined by the statute or that

the illegal activities met the “continuing basis” requirement. These are distinct

terms with specialized meanings.

Crawford first challenges the State’s evidence to support the “specified

unlawful activities” element of an ongoing criminal conduct charge. The State

relied on the following activities: (1) the theft of money from the Brighton ATM;
 15

(2) the robbery of the Pilot Grove Savings Bank in Packwood; and (3) the

distribution, either attempted or completed, of marijuana. Crawford argues that

Jury Instruction No. 27, which defined “specified unlawful activity,” required the

activity to be an “indictable offense” and attempted distribution of marijuana is

not an indictable offense in any state. The State counters with Jury Instruction

No. 25, which expressly identified the “specified unlawful activities” the jury

could rely on: “to wit: a) the theft of money from the Brighton, Iowa ATM; and/or

b) the robbery of the Pilot Grove Savings in Packwood, Iowa Bank; and/or c) the

distribution, either attempted or completed, of marijuana.” And since Crawford

did not object to the instruction, the State argues he cannot now complain that

attempted distribution does not satisfy the specified unlawful activity element of

his conviction. See State v. Canal, 773 N.W.2d 528, 530 (Iowa 2009) (explaining

that when a defendant does not “object to the instructions given to the jury at

trial . . . the jury instructions become the law of the case for purposes of our

review of the record for sufficiency of the evidence”).

The parties correctly point out the contradictions between the two jury

instructions, so looking just to the instructions as the State argues does not

simplify the analysis. In the end, we do not need to reconcile these

inconsistencies in light of our conclusion that there was insufficient evidence to

meet the separate continuing basis requirement for Crawford’s ongoing criminal

conduct conviction. We turn to that element instead.

Crawford argues the State failed to show that the specified unlawful

activity was conducted on a “continuing basis.” The State again argues that we
 16

are limited to the jury instructions, which do not otherwise define the term

“continuing basis,” because Crawford did not offer an instruction that explained

the legal requirements for a continuing basis. The problem with the State’s

argument is that it cannot point to an incorrect statement of the law in the jury

instructions with respect to the continuing basis requirement to which Crawford

was required to object. Our law of the case doctrine is premised on the failure to

object to an incorrect statement of the law. See, e.g., State v. Harris, 891 N.W.2d

182, 188 (Iowa 2017) (holding that counsel’s failure to object to jury instruction

that omitted “going” element of offense of “going armed with intent” constituted

ineffective assistance); State v. Hopkins, 576 N.W.2d 374, 378–80 (Iowa 1998)

(counsel was ineffective for failing to object to an instruction that was not “a

correct statement of the law”). If a party fails to alert the district court of the

erroneous instructions, he cannot complain that the evidence was insufficient to

support a legal proposition contrary to the one instructed to the jury. When that

happens, we apply the law as set out in the instructions rather than the

applicable law. See, e.g., Canal, 773 N.W.2d at 530 (“[The defendant] did not

object to the instructions given to the jury at trial. Therefore, the jury

instructions become the law of the case for purposes of our review of the record

for sufficiency of the evidence.”).

But failing to fully define a term is a different matter. The State does not

dispute that Jury Instruction No. 25 and Jury Instruction No. 27 both required

the jury to find that the underlying acts were committed on a continuing basis,

a required element of the offense. The failure of the instructions to further
 17

elucidate what that term means does not prevent us from applying the correct

law. See, e.g., State v. Banes, 910 N.W.2d 634, 639–41 (Iowa Ct. App. 2018)

(addressing whether evidence was sufficient to support finding of continuing

basis as described in State v. Reed although the term was not further defined).

In State v. Reed, we considered what it means for specified unlawful

activities to be committed on a continuing basis under Iowa Code chapter 706A,

which does not define the phrase. 618 N.W.2d at 334. Given the similarities

between the underlying purposes of chapter 706A and the Federal Racketeer

Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1962(c), we

adopted the United States Supreme Court’s interpretation of “a pattern of

racketeering activity” as a reasonable interpretation of “continuing basis” for

purposes of chapter 706A. See Reed, 618 N.W.2d at 334–35 (discussing H.J. Inc.

v. Nw. Bell Tel. Co., 492 U.S. 229, 241–42 (1989)). As a general matter,

continuing basis means that there must be a sufficient series of related predicate

acts over a significant period of time or, alternatively, “conduct that by its nature

projects into the future with a threat of repetition.” Id. (quoting Midwest Heritage

Bank, FSB v. Northway, 576 N.W.2d 588, 591 (Iowa 1998)).

“ ‘[C]ontinuing basis’ in section 706A.1(5) requires proof of a course of

criminal activity as opposed to an isolated or one-time act.” Id. at 334. To be

considered part of an enterprise conducted on a continuing basis, the predicate

acts must be related in some way and have an element of continuity. Id. (“It is

this factor of continuity plus relationship which combines to produce a

‘pattern.’ ” (quoting Midwest Heritage Bank, 576 N.W.2d at 591)). The
 18

relationship element “can be shown if the predicate acts ‘have the same or similar

purposes, results, participants, victims, or methods of commission or otherwise

are interrelated by distinguishing characteristics and are not isolated events.’ ”

Id. (quoting Midwest Heritage Bank, 576 N.W.2d at 591). Crawford does not

argue that the State failed to show a relationship between the predicate acts of

robbing banks and using the stolen funds to fund a drug distribution operation,

so our analysis is focused on the continuity element.

Requiring continuity helps distinguish between isolated events and a plan

of continuing illegal activity. The focus of the statute is the ongoing nature of

planned illegal conduct. Continuity can be shown by either an “open-ended” or

“closed-ended” concept. Id. at 334–35. Continuity refers “either to a closed period

of repeated conduct, or to past conduct that by its nature projects into the future

with a threat of repetition. It is, in either case, centrally a temporal concept.” Id.

(quoting Midwest Heritage Bank, 576 N.W.2d at 591). Crawford argues the

evidence was insufficient to show continuity based on either concept.

1. Closed-ended continuity. The point of requiring a continuing basis is to

show the ongoing nature of the criminal conduct. Illegal activities don’t have to

go on forever to meet the continuing basis requirement. At the same time,

committing a few illegal activities over a short period of time does not indicate

an intent to commit illegal activities on a continuing basis. To avoid sweeping in

multiple, but isolated acts, a closed period of repeated conduct must occur over

a substantial time period before it establishes the activities were committed on

a continuing basis. See id. at 334.
 19

The State argues that the attempted ATM theft, the bank robbery, and

attempts to buy and sell marijuana satisfy the closed-ended concept. The jury

instructions identified the time period as May 29, 2018, to June 15, 2018, less

than three weeks. In Reed, we recognized that without a threat of future criminal

conduct, predicate acts extending over a few weeks or months are insufficient

for establishing continuity. Id. at 335. That is because the ongoing criminal

conduct statute, like RICO, is concerned with “long-term criminal conduct.” Id.

(quoting Midwest Heritage Bank, 576 N.W.2d at 591).

This conclusion is supported by federal cases considering the length of

time necessary to satisfy a closed-ended concept of continuity for purposes of

RICO. See, e.g., Wisdom v. First Midwest Bank, of Poplar Bluff, 167 F.3d 402, 407

(8th Cir. 1999) (holding six-month period too short to satisfy the closed-ended

analysis of the continuity requirement); Primary Care Invs., Seven, Inc. v. PHP

Healthcare Corp., 986 F.2d 1208, 1215–16 (8th Cir. 1993) (holding eleven

months insufficient to satisfy the closed-ended continuity requirement and

noting that other federal circuit courts consistently hold that schemes less than

one year are too short). It is also consistent with the length of time this court and

the court of appeals have considered sufficient to satisfy the continuing basis

requirement of an ongoing criminal conduct charge. Compare Olsen, 618 N.W.2d

at 347 (a scheme to defraud an elderly couple out of $200,000 through a home

repair scam over a period of nineteen months supported ongoing criminal

conduct conviction), State v. Schindler, No. 19–0138, 2020 WL 2487607, at *2–3

(Iowa Ct. App. May 13, 2020) (twenty-four thefts over three years satisfied closed
 20

period of continuity), State v. Wulf, No. 18–0398, 2019 WL 720469, at *4 (Iowa

Ct. App. Feb. 20, 2019) (multiple acts of theft over the course of a year showed

continuity over closed period of repeated conduct), and State v. Frey, No. 05–

0287, 2006 WL 2872492, at *2 (Iowa Ct. App. Oct. 11, 2006) (multiple predicate

acts over a period of almost three years satisfied closed period of continuity),

with Reed, 618 N.W.2d at 333–34 (three drug sales in two months failed to

establish closed-ended continuity), State v. Goodwin, No. 18–1822, 2020 WL

1551149, at *5–7 (Iowa Ct. App. Apr. 1, 2020) (five robberies over three days did

not satisfy continuity requirement), Banes, 910 N.W.2d at 640–41 (three

commercial burglaries over the span of one month insufficient to meet continuity

requirement), and State v. Agee, No. 02–0967, 2003 WL 22087479, at *2 (Iowa

Ct. App. Sept. 10, 2003) (five counts of forgery over eight days did not satisfy

continuity requirement).

The three-week period between the attempt to cut into the Brighton ATM

and the last Facebook post about selling marijuana clearly does not satisfy the

substantial time period required by Reed. 618 N.W.2d at 334–35. Therefore, the

evidence is insufficient to establish the continuing basis element of ongoing

criminal conduct under the closed-ended concept.

2. Open-ended continuity. “[A] continuing basis may be found, even where

predicate acts occur over a short period of time, if there is a demonstrated

relationship between the predicate acts and a threat of continuing criminal

activity.” Banes, 910 N.W.2d at 640–41 (alteration in original) (quoting Agee,

2003 WL 22087479, at *2). This is referred to as the open-ended theory of
 21

continuity. An open-ended time period is demonstrated by “past conduct that by

its nature projects into the future with a threat of repetition.” Reed, 618 N.W.2d

at 334 (quoting Midwest Heritage Bank, 576 N.W.2d at 591). Under an open-

ended theory, “liability depends on whether the threat of continuity is

demonstrated.” Id. at 335 (emphasis omitted) (quoting Midwest Heritage Bank,

576 N.W.2d at 591). This requires “a realistic prospect of continuity over an

open-ended period yet to come.” Home Orthopedics Corp. v. Rodríguez, 781 F.3d

521, 531 (1st Cir. 2015) (quoting Feinstein v. Resol. Tr. Corp., 942 F.2d 34, 45

(1st Cir. 1991)) (discussing open-ended continuity under RICO).

There are two general scenarios where the continuity requirement is

satisfied through open-ended conduct. One arises where there is evidence that

the illegal activity would have continued for a sufficient time to meet the closed-

ended time period but the defendant’s conduct was cut short, generally by an

arrest or other law enforcement intervention. The other is where the nature of

the illegal activity itself reveals an intent for the illegal activities to continue.

Reed provides an example of the first scenario. Reed committed “at least

three completed offenses of dealing drugs over a two-month period,” but his drug

dealing ended when he was arrested. 618 N.W.2d at 335. The two-month period

was too short to support closed-ended continuity, so we considered the nature

of Reed’s illegal activity to determine whether there was evidence that, had Reed

not been arrested, he would have continued his illegal drug trade. Id. at 334–35.

We concluded that evidence of a dealer quantity of drugs seized from the

defendant along with evidence that he made monthly payments to store his drug
 22

stash at someone else’s house were sufficient to show that Reed intended to

continue dealing drugs if not caught. Id.

State v. Banes provides a proper contrast to Reed. In Banes, the defendant

was convicted of burglary, theft, and criminal mischief after he and a friend broke

into two different businesses in Lee County on Christmas Day and a third

business a few days later. 910 N.W.2d at 637–39. They stole tools, guns, clothes,

jewelry, and electronic equipment and then sold some of the stolen items to a

third party. Id. at 637–38. A week later, one of the business owners, who

suspected Banes was involved, saw him driving in Keokuk and chased him,

calling the police along the way. Id. at 638. The police found Banes’s jeep

abandoned at his grandfather’s house with some of the stolen items inside. Id.

In overturning Banes’s separate conviction for ongoing criminal conduct, the

court of appeals recognized that committing several commercial burglaries over

a period of a few days could not satisfy the requirement for evidence of a

continued threat of future criminal conduct. Id. at 641. Nor was that requirement

satisfied by the fact that the defendant was unemployed. Id. Whereas being

unemployed does not itself indicate a defendant intends to continue to support

himself through illegal activity, id., paying someone on a monthly basis to stash

drugs does indicate the defendant intends to continue selling drugs, Reed, 618

N.W.2d at 334–35.

Evidence that an otherwise unemployed defendant makes a living through

criminal activity might provide evidence to support a threat of continuing

activity, but being unemployed in and of itself does not. Banes, 910 N.W.2d at
 23

641. We think the same is true for selling drugs. That a defendant engages in

more than one drug sale does not, in and of itself, establish the evidence needed

to support a finding of a threat of continuing illegal conduct into the future. If it

was, the three sales of drugs in Reed would have been enough to support the

ongoing criminal conduct conviction and we would not have needed to rely on

the monthly payments for a stash house to establish a continued threat of future

criminal conduct. The statute criminalizes an intentional scheme of ongoing

criminal conduct, not merely a series of isolated criminal acts that may or may

not continue into the future. See Reed, 618 N.W.2d at 334–35 (noting the statute

does not cover isolated criminal activity).

Here, the State relies on evidence that Crawford communicated with a

number of people through Facebook to make multiple marijuana sales, arguing

this reveals an ongoing drug-dealing operation. But Reed makes clear that

multiple drug sales over a short period of time are insufficient without additional

evidence to support a threat of continuing illegal activity. The State’s evidence of

drug sales through Facebook only shows activity through June 15; there is no

evidence that sales continued beyond that point.

The State relies on evidence that Spray and Thornton feared the police

were on to them based on a note found in Spray’s house during execution of the

August search warrant to argue that the illegal activity was cut short by law

enforcement. We reject this argument for two reasons. First, as in Reed, there

must still be evidence beyond the prior short-lived drug sales to support a finding

of a threat of continuing illegal activity, even when there is an explanation for an
 24

end to the illegal activity. The State’s case is lacking that additional piece of

evidence we found crucial in Reed.

Second, the note was not found until August, at least six weeks after the

last evidence of any drug sales, and Crawford was not arrested until nearly a

year later. Yet, the State presented no evidence that he continued any illegal

activities during the interim—before or after execution of the August search

warrants through the time of his arrest. Instead, the evidence revealed he was

gainfully employed and possessed only a user quantity of marijuana. While

courts have excused the lack of continuing illegal activity when it is stopped by

law enforcement, the rationale of those cases does not extend to the facts here.

The defendant in Reed was arrested just one day after selling drugs to a

confidential informant, his third predicate offense, but the evidence of renting a

stash house revealed he would have continued selling but for the arrest. 618

N.W.2d at 330, 335; see also United States v. Torres, 191 F.3d 799, 807–08 (7th

Cir. 1999) (four acts of kidnapping over a short period of time as efforts to collect

drug debts supported RICO charges as part of a larger plan that was halted only

upon the participants’ arrests). Here, we have the opposite. Investigators found

over $50,000 in cash at Thornton’s house but never found dealer quantities of

marijuana. It is just as likely that the three had sold all of the drugs they bought

in Oregon, ending their crime spree. That the co-conspirators may have laid low

to avoid arrest cannot be used to excuse the lack of any evidence of ongoing

illegal activity.
 25

While the nature of the illegal activity itself can reveal an intent for the

illegal activities to continue, this is not such a case. The Supreme Court has

found the necessary threat of continuity when the illegal “acts themselves

include a specific threat of repetition extending indefinitely into the future.” H.J.

Inc., 492 U.S. at 242–43 (giving as an example a neighborhood hoodlum who

offers to provide “insurance” against vandalism to area businesses in exchange

for a “premium”). Relatedly, “the threat of continuity may be established by

showing that the predicate acts or offenses are part of an ongoing entity’s regular

way of doing business.” Id. at 242. We do not have that here. See, e.g., United

States v. Browne, 505 F.3d 1229, 1263 (11th Cir. 2007) (holding evidence

sufficiently satisfied the threat prong of open-ended continuity because the

predicate acts of fraud were part of the defendant’s “regular way of doing

business”); United States v. Simmons, 923 F.2d 934, 950–52 (2d Cir. 1991)

(holding that evidence indicating the murders were intended to maintain

discipline in a narcotics operation was sufficient to show the acts threatened

repetition by their nature). Spray testified that at the time the trio was

committing their alleged crime spree, he was using $100 of methamphetamines

a day. He even admitted to smoking methamphetamines just two hours before

the bank robbery. These facts are more indicative of a drug-induced crime frenzy

than a regimented criminal operation that displayed no signs of stopping.

At most, the State proved a plan to steal from an ATM and rob a bank, use

the proceeds to purchase drugs out west, and then resell them in Iowa, a plan

that was carried out over a period of three weeks. But there is no evidence the
 26

coconspirators had a plan to continue that pattern once the initial drugs ran

out. See, e.g., Banes, 910 N.W.2d at 641 (“Both Vawter and Banes testified at

trial, and neither testified regarding any plan for future conduct.”). Without

evidence of a plan to continue the illegal conduct beyond the last attempted June

15 marijuana sale, the State presented insufficient evidence to establish the

continuing basis element of the ongoing criminal conduct charge. Crawford’s

conviction for ongoing criminal conduct cannot stand.

V. Disposition.

We vacate Crawford’s conviction and sentence for ongoing criminal

conduct. We also vacate Crawford’s conviction for robbery in the first degree and

remand for entry of judgment and sentencing for robbery in the second degree.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT

JUDGMENT OF CONVICTION REVERSED, SENTENCE VACATED, AND

REMANDED FOR RESENTENCING.