State of Iowa v. Oscar Marco Gipson ( 2018 )

IN THE COURT OF APPEALS OF IOWA
No. 17-1359
Filed August 1, 2018
STATE OF IOWA,
Plaintiff-Appellee,
vs.
OSCAR MARCO GIPSON,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Robert J. Blink (trial
and sentencing) and Scott D. Rosenberg (verdict), Judges.
Oscar Marco Gipson appeals his conviction by jury trial for going armed with
intent on sufficiency-of-the-evidence grounds. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Robert P. Ranschau,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney
General, for appellee.
Considered by Danilson, C.J., and Vogel and Tabor, JJ.
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TABOR, Judge.
Oscar Marco Gipson sprayed the front of a Des Moines pub with bullets
shot from a semiautomatic rifle. He contends the State did not prove he intended
to use the weapon against another person—an element of going armed with intent.
Considering all of the evidence in the light most favorable to the jury’s verdict, we
find substantial proof of Gipson’s intent. Accordingly, we affirm his conviction.
I. Facts and Prior Proceedings
In January 2017, Gipson and his girlfriend, Tara Nguyen, were arguing
“more often than usual.” Nguyen went to stay with her mother for a few weeks.
Around the same time, Nguyen let an old friend borrow her Buick. When Gipson
saw the friend driving, Gipson took the Buick from him.
On January 21, the friction between Nguyen and Gipson escalated when
they encountered each other at the Beaver Tap. Gipson came into the bar with
several friends and asked to talk with Nguyen outside. Gipson yelled at Nguyen,
asked who she was with, and told her to leave. Nguyen left, heading across the
street to Saints Pub. Gipson and his friend, Derrick Peoples, watched Nguyen go
into the pub. Peoples said Gipson then went to his car, took his AK-74
semiautomatic rifle1 out of the trunk, and started shooting toward the pub.
Unbeknownst to Gipson, Nguyen had already left Saints Pub after calling a friend
to pick her up. She left through the back door, not visible to Gipson.
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A criminalist with the Iowa Division of Criminal Investigation testified the weapon was a
RATMIL AK-style rifle, sometimes referred to as an AK-74. It is designed to look like an
AK-47 but shoots a smaller caliber bullet.
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Gipson’s shooting sounded like a “mag dump” according to the description
from a witness who was drinking at another nearby bar that night. The witness
testified: “Somebody emptied a semiautomatic rifle. It wasn’t a pistol. I could tell
the difference.” A bartender at Saints Pub heard sounds like “pops” that prompted
everyone in the bar drop to the floor. Television screens inside the bar were hit.
Several windows and the bar’s external garage doors also bore bullet holes.
Bullets damaged four cars in the pub’s parking lot. Investigators determined
twenty-five bullet casings recovered from the scene came from an AK-74
semiautomatic rifle.
Gipson fled the scene, but law enforcement later connected him to the
shooting through reports from his friends at the bar. Officers also recovered the
semiautomatic rifle, which Nguyen identified as belonging to Gipson. The State
charged Gipson with two counts of being a felon in possession of a firearm; one
count of going armed with intent; one count of intimidation with a dangerous
weapon; two counts of criminal mischief; and one count of reckless use of a
firearm. A jury returned guilty verdicts on all counts except for intimidation with a
dangerous weapon. The court sentenced Gipson to imprisonment not to exceed
twenty-seven years.
On appeal, Gipson contends the evidence was insufficient to convict him of
going armed with intent, in violation of Iowa Code section 708.8 (2017).
II. Standard of Review
We review Gipson’s challenge to the sufficiency of the evidence for the
correction of legal error. See State v. Reed, 875 N.W.2d 693, 704 (Iowa 2016). If
the jury’s verdict is supported by substantial evidence, we uphold it. See State v.
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Rohm, 609 N.W.2d 504, 509 (Iowa 2000). Evidence is substantial if it would
convince a reasonable fact finder of a defendant’s guilt beyond a reasonable
doubt. Id. We review the facts in the light most favorable to the verdict and
consider not only evidence bolstering the verdict, “but all reasonable inferences
which could be derived from the evidence.” Id.
III. Analysis
To convict Gipson of going armed with intent, the State was required to prove
the following elements:
1. On January 21 through 22, 2017, [Gipson] went armed with
a dangerous weapon.
2. A Ratmil Romak semi-automatic rifle is a dangerous
weapon.
3. [Gipson] had the intent to use said dangerous weapon
without justification against another.
4. While armed with the weapon, [Gipson] moved from one
place to another.
Gipson challenges the State’s proof of the third element—that he intended to use
the weapon against another person. He emphasizes unoccupied vehicles incurred
most of the bullet damage. And any damage to Saints Pub was incidental. He
also denies making threats to harm any person.
“[A] conviction for going armed with intent requires proof that the defendant
carried a dangerous weapon with the specific intent to use it to inflict serious injury.”
United States v. Gomez-Hernandez, 300 F.3d 974, 980 (8th Cir. 2002) (discussing
elements of Iowa Code section 708.8). When the dangerous weapon is a firearm,
“intent to use” means “intent to shoot another person.” State v. Slayton, 417
N.W.2d 432, 434 (Iowa 1987). Specific intent is “seldom capable of direct proof,
but may be shown by reasonable inferences drawn from facts established.” State
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v. Chatterson, 259 N.W.2d 766, 769–70 (Iowa 1977). The jury may presume “a
person intends the natural consequences of his intentional acts.” Id. at 770. But
the legislature limited the inferences available under section 708.8, specifying:
“The intent required for a violation of this section shall not be inferred from the
mere carrying or concealment of any dangerous weapon itself, including a loaded
firearm, whether in a vehicle or on or about a person’s body.”
In its closing argument, the State discussed Gipson’s intent.
Who went armed with a dangerous weapon? Oscar Gipson. What
was he thinking? He was thinking, “I’m going to use it with intent
against another.” Now, the jury instruction says, “against another.”
It doesn’t say, “Tara Nguyen.” But you know it’s Tara Nguyen. And
how do you know that? You know that from direct and circumstantial
evidence.
The State reminded the jury about Nguyen’s long-time relationship with Gipson
and highlighted what happened right before the shooting—“they had been having
words. She’d been staying at her mom’s house on the weekends. And you know
now that the defendant took his guns and her guns and moved out.”
Viewing the record in the light most favorable to the State, we find ample
evidence for the jury to conclude Gipson intended to shoot Nguyen. Their romantic
relationship was strained; he had already confronted Nguyen’s friend for driving
her Buick; he argued with Nguyen at Beaver Tap and watched as she left for Saints
Pub across the street. He then collected his AK-74 from his car and shot at the
pub more than two dozen times. The gunfire caused people in the pub to fear for
their lives and dive to the floor. Some bullets went through the windows into the
occupied bar itself and shot out television screens. Other bullets hit cars in the
parking lot. Gipson was not aware Nguyen already left the pub out the back door.
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The jury did not infer Gipson’s intent merely from his concealment of a
loaded firearm in his vehicle. The jury could reasonably infer he intended to shoot
Nguyen or at least knew shooting her was a natural consequence of his actions.
The jury also could infer Gipson was aware when he sprayed bullets at the pub
that a natural consequence would be hitting a different person in the occupied
business. See State v. Buchanan, 207 N.W.2d 784, 786 (Iowa 1973) (interpreting
predecessor statute as containing no requirement that defendant “have intent to
shoot some particular person”). The absence of a threat by Gipson before the
shooting does not diminish the inferences from his actions. nor does the fortunate
fact he ended up hitting only objects. Substantial evidence supports the verdict,
and we affirm the conviction.
AFFIRMED.