State of Iowa v. Vincent Salvatory Brocato ( 2023 )

IN THE COURT OF APPEALS OF IOWA
No. 22-0572
Filed June 7, 2023
STATE OF IOWA,
Plaintiff-Appellee,
vs.
VINCENT SALVATORY BROCATO,
Defendant-Appellant.
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Appeal from the Iowa District Court for Scott County, Patrick A. McElyea,
Judge.
Vincent Brocato appeals his convictions for attempted murder and domestic
abuse assault while using a dangerous weapon. AFFIRMED.
Martha J. Lucey, State Appellate Defender, and Shellie L. Knipfer, Assistant
Appellate Defender, for appellant.
Brenna Bird, Attorney General, and Thomas E. Bakke, Assistant Attorney
General, for appellee.
Considered by Ahlers, P.J., Badding, J., and Vogel, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2023).
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AHLERS, Presiding Judge.
A jury convicted Vincent Brocato of attempted murder and domestic abuse
assault while using a dangerous weapon for the shooting of Erica.1 Erica had been
staying with Brocato, and the two had a sexual relationship. Their relationship
eventually soured, and Erica was in the process of moving out on the night of the
shooting.
On appeal, Brocato challenges his convictions by claiming the State failed
to establish sufficient evidence identifying him as the shooter. We review
challenges to the sufficiency of the evidence for corrections of errors at law. State
v. Hall, 969 N.W.2d 299, 304 (Iowa 2022). Evidence is sufficient if there is
substantial evidence in the record to support the conviction. Id. Evidence is
substantial if it is sufficient to convince a rational trier of fact that the defendant is
guilty beyond a reasonable doubt. Id. In assessing the sufficiency of the evidence,
we view it in the light most favorable to the State. Id.Key to Brocato’s appellate argument is his suggestion that we should
independently weigh the evidence and make our own credibility determinations to
tip the scales in his favor. But that is not our role on appellate review. “Appellate
review of the jury’s verdict is not the trial redux.” State v. Mathis, 971 N.W.2d 514,
519 (Iowa 2022). “It is not the province of the court . . . to resolve conflicts in the
evidence, to pass upon the credibility of witnesses, to determine the plausibility of
explanations, or to weigh the evidence; such matters are for the jury.” State v.
1 The shooting victim’s name is not Erica. To protect the privacy of the victim, we
used a random-name generator, which yielded the name Erica that we will use to
refer to the victim throughout this opinion.
3
Musser, 721 N.W.2d 758, 761 (Iowa 2006) (quoting State v. Williams, 695 N.W.2d
23, 28 (Iowa 2005)).
Our review of the record evidence, in the light most favorable to the jury
verdict, reveals the following facts.2 Text messages between Brocato and a friend
exchanged a little over two weeks prior to the shooting establish Brocato was angry
with Erica. One text message stated, “That bitch made a fool out of me and took
a lot of my shit.” Brocato’s text messages continued. He told his friend, “I need a
pistol.” He reassured his friend, “If you don’t want to get involved I understand but
I also know that that’s your friend but everybody needs to understand I’ll fucking
smoke that bitch I’ll cut that bitch to fucking pieces.” The friend did not provide
Brocato with a gun at that time.
On the night of the shooting, however, Brocato’s friend brought Brocato a
handgun because Brocato told him he needed it to scare away a man who had
been bothering an ex-girlfriend. The friend visited with Brocato for about an hour
and then left, leaving the gun with Brocato. Later testing revealed that the gun was
used to shoot Erica in the head.
After receiving the handgun, Brocato received a text message informing him
that Erica was at Brocato’s upstairs neighbor’s apartment. Brocato went to the
neighbor’s apartment, talked to Erica, and the two went downstairs. About ten
minutes later, Brocato returned to the neighbor’s apartment alone, and Brocato
was agitated. After Brocato left the upstairs neighbor’s apartment, the friend who
had brought Brocato the gun returned to Brocato’s apartment. He found Brocato
2 Erica did not testify because her head and brain injuries from the shooting
prevented her from being able to communicate enough to testify.
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waiting for him outside to return the gun to him. At the same time, Brocato also
gave him Erica’s cell phone, which the friend then sold at a kiosk.
Brocato went to speak to police the night of the shooting and, while crying,
told them they were going to take him into custody because he thought he did
something. Officers went to his apartment to investigate but left when no one
answered the door. Brocato eventually went with police to his apartment and
unlocked it for them. Once inside the apartment’s entryway, Brocato quickly told
an officer to “look” and pointed toward another room where police would find Erica
suffering from a gunshot wound to the head.
A few days after the shooting, Brocato was in jail and spoke to his mother
on the jail telephone. The conversation was recorded. During the phone call,
Brocato informed his mother that he was the only one in the apartment with Erica.
Viewing this evidence in the light most favorable to the verdict, it is sufficient
for a jury to identify Brocato as Erica’s assailant. Brocato was angry with Erica for
several reasons as expressed in his text messages—explaining Brocato’s motive
to harm Erica. See State v. Richards, 809 N.W.2d 80, 94 (Iowa 2012) (recognizing
a person’s motive to commit an offense is probative to identity). He had access to
the handgun used to shoot Erica, which he got rid of shortly after the shooting by
returning it to his friend. He steered the friend away from entering his apartment
and finding an injured Erica by meeting him outside in the frigid February weather3
instead of inviting him inside or meeting him at the door. He gave Erica’s phone
away to the friend, possibly in an effort to manipulate Erica’s digital footprint and
3 The evidence was consistent that it was a very cold day, with one witness
testifying that it was thirty degrees below zero.
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timeline to make it appear she left his apartment at that point. His conduct while
interacting with police incriminated him as well. As he cried, he told officers he
thought he did something bad. Then, he indicated to officers that he knew Erica
was injured by pointing into the apartment and saying “look” in an emotional tone
before Erica was even visible from his vantage point. A reasonable jury could
conclude that Brocato would not have known about Erica in the other room at that
point unless he was the one who shot her. And, finally, he admitted to his mother
that he was the only one in the apartment with Erica.
The pieces of this puzzle fit together such that a reasonable jury could
conclude that Brocato felt slighted and disrespected by Erica, so he got a gun, shot
her, and then feigned surprise and horror at the discovery of her injuries in an
attempt to convince officers he was not her assailant. The State provided the jury
with substantial evidence to piece the puzzle together to conclude Brocato was the
shooter and reject Brocato’s claim that he was not. So, Brocato’s convictions are
supported by substantial evidence, and we affirm.
AFFIRMED.