IN THE COURT OF APPEALS OF IOWA

No. 17-1435

Filed July 18, 2018

STATE OF IOWA,

Plaintiff-Appellee,

vs.

PRINCE NYOMAH,

Defendant-Appellant.

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Appeal from the Iowa District Court for Polk County, Karen A. Romano, 

Judge.

Prince Nyomah appeals his convictions of second-degree robbery and 

assault while participating in a felony, arguing the convictions should have merged. 

AFFIRMED.

Mark C. Smith, State Appellate Defender, and Nan Jennisch, Assistant 

Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant Attorney 

General, for appellee.

Considered by Vogel, P.J., and Doyle and Bower, JJ.
2

DOYLE, Judge.

Prince Nyomah entered Alford pleas1to second-degree robbery and assault 

while participating in a felony, among other things. He now appeals those two 

convictions, arguing the convictions should have merged under the merger 

doctrine, codified in Iowa Code section 701.9 (2017). That section provides:

No person shall be convicted of a public offense which is 

necessarily included in another public offense of which the person is 

convicted. If the jury returns a verdict of guilty of more than one 

offense and such verdict conflicts with this section, the court shall 

enter judgment of guilty of the greater of the offenses only.

While we generally review a challenge under the merger statute for correction of 

errors at law, see State v. Ceretti, 871 N.W.2d 88, 92 (Iowa 2015), insofar as an 

unconstitutional sentence is alleged, our review is de novo, see State v. Zarate, 

908 N.W.2d 831, 840 (Iowa 2018).

“[I]n the merger and double jeopardy context, the threshold question is 

whether it is legally impossible to commit the greater crime without also committing 

the lesser.” State v. Stewart, 858 N.W.2d 17, 21 (Iowa 2015). “If the robbery and 

assault charges were predicated on a single assault, the two crimes should 

merge.” See State v. Wilson, 523 N.W.2d 440, 441 (Iowa 1994). However, “[i]t is 

well established in Iowa law that a single course of conduct can give rise to multiple 

charges and convictions.” State v. Velez, 829 N.W.2d 572, 584 (Iowa 2013) (citing 

State v. McKettrick, 480 N.W.2d 52, 57 (Iowa 1992)). Ultimately, a merger claim 

 

1 An Alford plea allows a defendant to maintain innocence while acknowledging the 

prosecution has enough evidence to win a conviction from a judge or jury. See North 

Carolina v. Alford, 400 U.S. 25, 32-38 (1970).
3

turns on whether the two offenses at issue “involve the same offense.” State v. 

Lewis, 514 N.W.2d 63, 69 (Iowa 1994).

The amended trial information alleged Nyomah committed robbery in the 

second degree, in violation of sections 711.1 and .3, and assault while participating 

in a felony, in violation of Iowa Code section 708.3. Under sections 711.1 and .3, 

a defendant is guilty of second-degree robbery when that defendant committed a 

robbery with the intent to commit a theft and, to assist or further the commission of 

the intended theft or the defendant’s escape from the scene thereof, the defendant 

either committed an assault upon another, threatened another with or purposely 

put another in fear of immediate serious injury, or threatened to commit 

immediately any forcible felony. Under section 708.3, a defendant is guilty of 

assault while participating in a felony if he committed “an assault within the 

meaning of Iowa Code section 708.1 [(2017)] while participating in a felony other 

that a sexual abuse.” A person commits an assault

when, without justification, the person does any of the following:

a. Any act which is intended to cause pain or injury to, or 

which is intended to result in physical contact which will be insulting 

or offensive to another, coupled with the apparent ability to execute 

the act.

b. Any act which is intended to place another in fear of 

immediate physical contact which will be painful, injurious, insulting, 

or offensive, coupled with the apparent ability to execute the act.

c. Intentionally points any firearm toward another, or displays 

in a threatening manner any dangerous weapon toward another.

See Iowa Code § 708.1(2). The amended trial information alleged Nyomah 

committed “assaults” upon the victim, but that document did not specify the way or 

ways in which the assaults allegedly occurred.
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At the plea hearing, the court discussed the elements of the offenses with 

Nyomah, and Nyomah acknowledged the elements the State would be required to 

prove for both offenses. Additionally, Nyomah agreed that, if the witnesses set 

forth in the minutes of evidence came to court and testified as described, his guilt 

would be established beyond a reasonable doubt and that any evidence his 

witnesses presented to the jury “would not overcome that guilt beyond a 

reasonable doubt.” 

The minutes of evidence set forth numerous actions by Nyomah which 

constitute separate and distinct assaults. While in the living room, Nyomah pulled 

out a gun and pointed it at the victim, who was standing in the hallway. He yelled,

“Give me all your money. Give me everything.” The victim backed up the hallway 

and walked to her bedroom where she retrieved her own handgun. She walked 

out, pointed her gun at Nyomah, and told him to leave. Nyomah then grabbed for 

the victim’s gun, and the victim grabbed Nyomah’s gun. The two wrestled for each 

other’s guns for a few moments. They ended up in the bedroom where Nyomah

threw the victim on to the bed and started punching her. Because multiple assaults 

took place, each crime can be supported by a separate and distinct assault. Thus, 

the crimes of assault while participating in a felony and second-degree robbery do 

not merge. See Velez, 829 N.W.2d at 583-84; see also State v. Clay, No. 14-0864, 

2015 WL 4935606, at *6 (Iowa Ct. App. Aug. 19, 2015).

Because the crimes do not merge, Nyomah’s claim must fail. Accordingly, 

we affirm his convictions, judgment, and sentences.

AFFIRMED.