State of Iowa v. Nathaniel Lamice Yancey Jr. ( 2014 )

IN THE COURT OF APPEALS OF IOWA
No. 3-1235 / 12-1754
Filed March 12, 2014
STATE OF IOWA,
Plaintiff-Appellee,
vs.
NATHANIEL LAMICE YANCEY JR.,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Christopher L.
McDonald (sentencing) and Scott D. Rosenberg (trial), Judges.
Defendant appeals from the judgment, convictions, and sentence following
a jury trial and guilty verdicts. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Bradley M. Bender,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Linda Hines, Assistant Attorney
General, John P. Sarcone, County Attorney, and James Ward, Assistant County
Attorney, for appellee.
Considered by Danilson, C.J., and Vaitheswaran and Mullins, JJ.
McDonald, J., takes no part.
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DANILSON, C.J.
Nathaniel Yancey Jr. appeals from the judgment, convictions, and
sentence following a jury trial and guilty verdicts. On appeal, Yancey raises
several claims. First, he maintains the district court erred by allowing evidence of
prior bad acts where the probative value was substantially outweighed by unfair
prejudice. Second, he argues the State failed to present sufficient evidence to
support each of his convictions. Next, he claims he received ineffective
assistance from counsel at trial. In support of this contention, he maintains
counsel was ineffective for failing to object to a jury instruction. Finally, he
maintains the district court failed to provide adequate reasoning to explain the
decision to impose consecutive sentences. Upon our review of the record, we
affirm.
I. Background Facts and Proceedings.
On November 25, 2011, several “Black Friday” shoppers observed an
altercation in the parking lot of Valley West Mall in West Des Moines, Iowa.
Several people heard gun shots, and some witnessed a gun being fired. When
the police arrived at the parking lot, only the witnesses remained.
Among the witnesses who saw the gun being fired was Francesca
Bertagonolli. She reported the incident to the West Des Moines Police and
identified Yancey as the shooter in a photo array. Some of the witnesses were
passengers in a black Buick Escalade that was shot at and hit. One of the
passengers, Janee Jones, identified the shooter by race. Another witness
provided the police with a license plate number from one of the cars involved in
the shooting; the car belonged to Yancey. Finally, the police collected three
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nine-millimeter pistol shell casings from the area the witnesses indicated the
shooting occurred.
Eight days later, on December 3, 2011, off-duty Des Moines police officers
Sone Cam and Pat Hickey were working at Club 101 in Des Moines, Iowa.
During his shift, Officer Cam encountered Yancey when he heard someone yell
Yancey “had a piece.” When Officer Cam tried to stop Yancey, Yancey resisted
and ran away. Officer Cam pursued Yancey outside and tried to deploy his taser
during the pursuit. Yancey spun around and began firing shots at Officer Cam,
who returned fire. Officer Hickey was eventually able to apprehend Yancey while
he fled on foot. When Yancey was apprehended, he no longer had a firearm in
his possession. Des Moines Police Officer Michael Dixson located a nine-
millimeter pistol underneath a truck in the alley through which Yancey ran. He
also located three casings from a nine-millimeter pistol.
Victor Murillo, a criminalist from the Iowa Division of Criminal Investigation
(DCI), compared the casings and the weapon found at the scene and determined
the casings were fired from the gun retrieved by the Des Moines police officers.
Murillo also tested the shell casings retrieved from Valley West Mall and
determined those were also fired from the gun recovered from the Club 101
shooting.
On December 16, 2011, Yancey was charged with intimidation with a
dangerous weapon, in violation of Iowa Code section 708.6 (2011); assault while
participating in a felony, in violation of section 708.3; going armed with intent, in
violation of section 708.8; possession of a firearm by a felon, in violation of
section 724.26; attempt to commit murder, in violation of section 707.11; assault
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on a peace officer with a weapon, in violation of sections 708.1 and 708.3A;
assault while participating in a felony, in violation of section 708.3; going armed
with intent, in violation of section 708.8; possession of a firearm by a felon, in
violation of section 724.26; and intimidation with a dangerous weapon, in
violation of section 708.6.
On May 9, 2012, Yancey filed a motion to sever trial on separate offenses.
A hearing on the motion was held the same day. Yancey indicated that counts
one through four arose from the incident at Valley West Mall in West Des Moines
on November 25, 2011, while the rest of the counts arose from the incident at
Club 101 in Des Moines on December 3, 2011. The State concurred that the
charges from the two incidents should be severed. The district court granted
Yancey’s motion to sever and ordered the charges stemming from the shooting
at Club 101 to be tried first.
On May 14, 2012, a jury trial commenced on the charges stemming from
the Club 101 shooting. The jury found Yancey guilty of the lesser-included
offense of assault with intent to inflict serious injury on the attempted murder
charge, as well as assault on a peace officer with a weapon, assault while
participating in a felony, going armed with intent, possession of a firearm by a
felon, and intimidation with a dangerous weapon.1
On July 30, 2012, Yancey filed a motion in limine regarding the trial for the
Valley West Mall incident. In his motion, he requested the exclusion of evidence
concerning the shooting at Club 101 and the ballistic testing by the DCI, which
1
Yancey also appeals the judgment, convictions, and sentence regarding the incident at
Club 101. Those claims are decided in a separate opinion filed today. See State v.
Yancey, No. 12-1556 (Iowa Ct. App. March 12, 2014).
5
found that the gun retrieved matched the casings fired at Valley West Mall on
November 25, 2011. Yancey argued the admission of such evidence was highly
prejudicial and that any probative value was outweighed by unfair prejudice. The
district court ruled on the motion the same day and concluded that evidence from
the Club 101 shooting was admissible for the limited purpose of establishing
possession of the firearm and identity of the shooter. Following a jury trial,
Yancey was convicted of each of the four charges. He stipulated he was a
habitual offender for the purpose of the sentencing enhancement.
On August 3, 2012, Yancey was sentenced for the charges stemming
from the Club 101 incident. He was sentenced to an indeterminate term of
imprisonment not to exceed seventy-five years. A sentencing hearing for the
charges stemming from the Valley West Mall shooting was held September 17,
2012. On each of the four charges, Yancey was sentenced to serve an
indeterminate term not to exceed fifteen years. The court ordered the sentences
to be served concurrent to each other, but consecutive to the sentences imposed
for the Club 101 charges, for a total term of incarceration not to exceed ninety
years. Yancey appeals.
II. Standard of Review.
Yancey raises several issues on appeal:
We review rulings on the admission of evidence of prior bad acts for an
abuse of discretion. State v. White, 668 N.W.2d 850, 853 (Iowa 2003). Even if
an abuse of discretion occurred, reversal is not required if the court’s erroneous
admission of evidence was harmless. State v. Henderson, 696 N.W.2d 5, 10
(Iowa 2005).
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We review challenges to the sufficiency of evidence for errors at law.
State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012). We review the evidence “in
the light most favorable to the State, including all reasonable inferences that may
be deduced from” it to determine whether the finding of guilt is supported by
substantial evidence and should be upheld. Id. Evidence is substantial if it
would convince a rational fact-finder of the defendant’s guilt beyond a reasonable
doubt. Id.A defendant may raise an ineffective-assistance claim on direct appeal if
he has reasonable grounds to believe the record is adequate for us to address
the claim on direct appeal. State v. Straw, 709 N.W. 2d 128, 133 (Iowa 2006). If
we determine the record is adequate, we may decide the claim. Id. We review
claims for ineffective assistance of counsel de novo. Id.Our review of the district court’s sentencing decision is for correction of
errors at law. State v. Thomas, 547 N.W.2d 223, 225 (Iowa 1996). The decision
to impose a sentence within statutory limits is “cloaked with a strong presumption
in its favor.” State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002). The sentence
will not be upset on appeal “unless the defendant demonstrates an abuse of trial
court discretion or a defect in the sentencing procedure.” State v. Grandberry,
619 N.W.2d 399, 401 (Iowa 2000). An abuse of discretion is found only when the
sentencing court exercises its discretion on grounds or for reasons clearly
untenable or to an extent clearly unreasonable. Thomas, 547 N.W.2d at 225. In
criminal cases the court is to “state on the record its reasons for selecting the
particular sentence.” Iowa R. Crim. P. 2.23(3)(d). We review both the court’s
stated reasons made at the sentencing hearing and its written sentencing order.
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See State v. Lumadue, 622 N.W.2d 302, 304 (Iowa 2001). The statement of
reasons can be “terse and succinct,” as long as its brevity does not hinder review
of the district court’s discretion. State v. Victor, 310 N.W.2d 201, 205 (Iowa
1981).
III. Discussion.
A. Admission of Bad Acts Evidence.
Yancey appeals the district court’s decision allowing the State to present
evidence regarding the Club 101 shooting at Yancey’s trial for the Valley West
shooting. Yancey concedes the evidence is relevant but maintains its probative
value was substantially outweighed by the danger of unfair prejudice. He argues
that because it was unfairly prejudicial, it should have been excluded from trial.
See State v. Mitchell, 633 N.W.2d 295, 298–99 (Iowa 2001) (“If [the evidence’s]
probative value is substantially outweighed by the danger of unfair prejudice to
the defendant . . . the evidence must be excluded.”); see also Iowa R. Evid.
5.403 (“Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue delay, waste of time,
or needless presentation of cumulative evidence.”).
Unfair evidence is that which:
appeals to the jury’s sympathies, arouses its sense of horror,
provokes its instinct to punish, or triggers other mainsprings of
human action may cause a jury to base its decision on something
other than the established propositions in the case. The appellate
court may conclude that “unfair prejudice” occurred because an
insufficient effort was made below to avoid the dangers of
prejudice, or because the theory on which the evidence was offered
was designed to elicit a response from the jurors not justified by the
evidence.
8
State v. Plaster, 424 N.W.2d 226, 231–32 (Iowa 1988). In determining whether
evidence is unfairly prejudicial, we consider:
the need for the evidence in light of the issues and the other
evidence available to the prosecution, whether there is clear proof
the defendant committed the prior bad acts, the strength or
weaknesses of the evidence on the relevant issue, and the degree
to which the fact finder will be prompted to decide the case on the
improper basis.
State v. Taylor, 689 N.W.2d 116, 124 (Iowa 2004).
Here, the evidence concerning the shooting at Club 101 aided in
identifying Yancey as the shooter at Valley West Mall. Although Francesca
Bertagonolli identified Yancey as the shooter, none of the other witnesses were
able to do so. Furthermore, at trial, each witness testified it was still dark at the
time of the incident, and each testified they were some distance from the incident
when it occurred, even those who had been in the same vehicle as Francesca.
Although Yancey’s vehicle was identified as one of the vehicles that was at the
mall at the time of the altercation, that evidence did not tie Yancey to the
shooting or the gun.
The DCI criminalist testified that the gun retrieved from the Club 101
shooting was the same gun used at the Valley West Mall shooting. Officers Cam
and Hickey testified that Yancey shot a gun at Club 101 and was taken into
custody near the gun identified by the DCI criminalist. Here, there was “clear
proof [Yancey] committed the prior bad acts.” See Taylor, 689 N.W.2d at 124.
At the time of the trial for the charges stemming from the mall incident,
Yancey had already been tried and convicted for the Club 101 incident.
Furthermore, the trial court mitigated any prejudicial effect of the evidence by at
9
least twice instructing the jury verbally of the limited purpose for which the
testimony was being offered. The jury was also provided a written instruction
which stated that the evidence from the Club 101 incident could “only be used to
show the identity of the person charged and not for any other purpose.” See
State v. Owens, 635 N.W.2d 478, 483 (Iowa 2001) (“[W]hen a cautionary
instruction is given, it is only in extreme cases that the instruction is insufficient to
nullify the danger of unfair prejudice.”).
Thus, we conclude the trial court did not abuse its discretion by allowing
evidence of Yancey’s prior bad acts to be admitted at trial.
B. Sufficiency of Evidence.
Yancey maintains the State failed to present sufficient evidence to support
his conviction for any of the four offenses of which he was convicted. He claims
the district court erred by not granting his motion for judgment of acquittal on
each of the four offenses because the State did not present evidence that
supported the jury’s finding he was the person who shot the gun at Valley West
Mall.
When reviewing the evidence in the light most beneficial to the State, a
jury could reasonably infer Yancey was the person responsible for shooting the
gun in the Valley West Mall parking lot. After the incident occurred, an
eyewitness provided the police officers with a license plate of a vehicle that
people involved in the altercation used to flee. That car was owned by Yancey.
Another eyewitness, Francesca Bertagnolli, picked Yancey out of a photograph
array at the police station a few days after witnessing the incident. At trial, she
also identified Yancey as the man she had seen in the parking lot. Finally, the
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State presented evidence that the gun used at the Valley West Mall shooting was
in Yancey’s possession eight days later.
Although some of the witnesses, even those in the same car as
Francesca, testified they were unable to identify the shooter because of the
distance or the darkness, “discrepancies in testimony, in and of themselves, do
not preclude proof beyond a reasonable doubt.” See State v. Speaks, 576
N.W.2d 629, 632 (Iowa Ct. App. 1998). Furthermore, a jury is free to believe or
disbelieve any testimony it chooses and to give as much weight to the evidence
as, in its judgment, such evidence should receive. Id.Based on our review of the evidence in the record, we conclude the district
court properly denied Yancey’s motion for judgment of acquittal for all four
offenses because substantial evidence existed at the time of the close of the
State’s evidence.
C. Ineffective Assistance of Counsel.
One of the charges against Yancey was going armed with intent. Iowa
Code section 708.8 defines it as, “A person who goes armed with any dangerous
weapon with the intent to use without justification such weapon against the
person of another commits a class ‘D’ felony.” At trial, the jury was provided the
following instruction, based on the uniform instruction, regarding the charge:
The State must prove all of the following elements of Going
Armed With Intent as charged in Count III:
1. On or about the 25th day of November, 2011 the
defendant was armed with a handgun.
2. The handgun was a dangerous weapon as defined in
Instruction No. 23.
3. The defendant was armed with the specific intent to use
the handgun against another person.
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4. During the commission of this offense, the defendant
moved from one location to another.
5. The defendant specifically intended to shoot at another
person.
If you find the State has proved all of the elements, the
defendant is guilty of Going Armed With Intent. If the State has
failed to prove any one of the elements, the Defendant is not guilty
on Count III.
Yancey maintains that an essential element of going armed with intent is proof of
movement, and he claims the jury instruction did not reflect this essential part of
the offense. He maintains that counsel’s failure to object to the jury instruction
amounts to ineffective assistance from counsel at trial and that he was prejudiced
by the failure.
To succeed on his claim, Yancey must show by a preponderance of the
evidence that (1) his counsel failed to perform an essential duty and (2) prejudice
resulted. See State v. Rodriguez, 804 N.W.2d 844, 848 (Iowa 2011). To prove
counsel failed to perform an essential duty, Yancey must show “counsel’s
representation fell below an objective standard of reasonableness . . . under
prevailing professional norms.” See Strickland v. Washington, 466 U.S. 668, 688
(1984). In doing so, he must overcome “a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance.” See
id. at 689. Prejudice has resulted when “there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Bowman v. State, 710 N.W.2d 200, 203 (Iowa 2006). We can
affirm if either prong is absent and need not engage in both prongs of the
analysis if one is lacking. See Everett v. State, 789 N.W.2d 151, 159 (Iowa
2010).
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In this case, Yancey’s trial counsel did not breach an essential duty.
Yancey is correct that “going armed” requires proof of movement. See State v
Ray, 516 N.W.2d 863, 865 (Iowa 1994) (“As for ‘going’ armed, we believe the
term necessarily implicates proof of movement.”). Here, the jury instructions
included both the requirement that the State prove, “During the commission of
this offense, the defendant moved from one location to another” and advised the
jury that “[i]f the State has failed to prove any one of the elements, the Defendant
is not guilty on Count III.” (Emphasis added.) Contrary to Yancey’s assertion,
these instructions do require proof of movement.2
Because the uniform instruction provided to the jury does require proof of
movement, any objection to it by counsel would have been overruled. Counsel
was not ineffective for failing to raise an objection that has no merit. See State v.
Willis, 696 N.W.2d 20, 24 (Iowa 2005) (holding counsel was not ineffective for
failing to raise an issue that has no merit). Since Yancey’s trial attorney did not
breach any essential duty, we need not address the prejudice element of
ineffective assistance. See Everett, 789 N.W.2d at 159.
D. Decision to Impose Consecutive Sentences.
This is yet another case of a long line of cases raising on appeal the issue
of whether an adequate explanation was given for imposing consecutive
sentences. Here, Yancey concedes the district court provided adequate
reasoning for its decision to impose a term of incarceration but maintains the
court did not provided adequate reasoning regarding why consecutive sentences
2
We conclude a reasonable juror would understand that “during the commission of the
offense” means while being armed with a handgun.
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are warranted in this particular case. The district court imposed concurrent
sentences for each of the charges in the present case but ordered the sentence
to run consecutively to the sentence from the Club 101 charges. In doing so, the
court stated:
The Court hereby pronounces the following judgment and
sentence. And let the record reflect that in pronouncing the
judgment and sentence, the Court has considered the presentence
investigation report, the defendant’s statement in this case, in which
he has made none, and other pertinent information, including letters
in the file from people advocating on Mr. Yancey’s behalf.
The Court has also considered the following factors: The age
of Mr. Yancey, his prior record of convictions, his employment
circumstances, his family circumstances, his financial
circumstances, the nature of the offense committed, the
defendant’s history of substance abuse, and the defendant’s mental
health history, and whether—and what would afford the maximum
opportunity for rehabilitation and protection of the public.
The Court has further considered all sentencing options
available by statute, and the Court concludes the following
judgment and sentence provides the maximum opportunity for
rehabilitation of the defendant and protection of the community from
further offenses by the defendant.
....
The Court has decided that it’s going to run the sentences
with respect to Counts I through IV concurrently. However, those
sentences shall run consecutively to the sentence on Counts V
through X that were previously imposed by Judge Rosenberg in this
matter.
“If a person is sentenced for two or more separate offenses, the
sentencing judge may order the second or further sentence to begin at the
expiration of the first or succeeding sentence.” Iowa Code § 901.8. A
sentencing court must state, on the record, its reason for selecting a particular
sentence. State v. Barnes, 791 N.W.2d 817, 827 (Iowa 2010) (citing Iowa R.
Crim. P. 2.23(3)(d)). The court must also provide reasons for imposing
consecutive sentences. Id. “A statement may be sufficient, even if terse and
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succinct, so long as the brevity of the court’s statement does not prevent review
of the exercise of the trial court’s sentencing discretion.” State v. Hennings, 791
N.W.2d 828, 838 (Iowa 2010). We may look to the court’s overall sentencing
rationale to glean the reasoning for imposing consecutive sentences. See id.(“[I]t is apparent to us that the district court ordered the defendant to serve his
sentences consecutively as part of an overall sentencing plan.”).
In Hennings, our supreme court stated, “[t]he court spoke at length about
the information it considered in making a sentencing determination and
specifically what factors influenced its ultimate decision. This is not a situation
where the court ‘failed to give even a terse explanation of why it imposed
consecutive, as opposed to concurrent sentences.’” 791 N.W.2d at 838 (citing
State v. Uthe, 542 N.W.2d 810, 816 (Iowa 1996)). In Hennings not a single word
or sentence was directly expressed explaining why consecutive sentences were
imposed.
While the court provided no explicit connection between its sentencing
plan as a whole and its decision to impose the consecutive sentence, we can
discern no difference between these facts and the facts in Hennings. We can
only conclude the court’s reasoning is apparent from the overall sentencing
rationale.3 See Hennings, 791 N.W.2d at 838.
Thus, we find the district court did not abuse its discretion, and we affirm.
3
See State v. Scott, 12-1531, 2013 WL2146226, at *2 (Iowa Ct. App. May 15, 2013)
(Danilson, J., concurring specially).
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IV. Conclusion.
Upon our review, we find the evidence of Yancey’s prior bad acts was not
unfairly prejudicial and the trial court did not abuse its discretion by allowing the
evidence to be admitted at trial. We also find the district court properly denied
Yancey’s motion for judgment of acquittal for all four offenses because
substantial evidence existed at the time of the close of the State’s evidence.
Because Yancey’s trial attorney did not breach an essential duty and thus did not
provide ineffective assistance, we affirm Yancey’s convictions. Finally, the
sentencing court did not abuse its discretion when it ordered the sentence on the
present case to run consecutively to the sentence imposed on a previous case.
We affirm.
AFFIRMED.