State of Iowa v. Charlie Gary, III ( 2023 )

IN THE COURT OF APPEALS OF IOWA
No. 21-1476
Filed June 7, 2023
STATE OF IOWA,
Plaintiff-Appellee,
vs.
CHARLIE GARY III,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Mark Fowler, Judge.
Charlie Gary III appeals his first-degree murder conviction. AFFIRMED.
Karmen Anderson, Des Moines, for appellant.
Brenna Bird, Attorney General, and Kyle Hanson, Assistant Attorney
General, for appellee.
Considered by Bower, C.J., and Tabor and Greer, JJ.
2
BOWER, Chief Judge.
Charlie Gary III was convicted after a jury trial of first-degree murder, first-
degree burglary, first-degree robbery, and abuse of a corpse. On appeal, he
challenges the sufficiency of the evidence of malice aforethought to support his
first-degree murder conviction.1 Because there is substantial evidence from which
the jury could find malice aforethought, we affirm.
On January 7, 2020, seventy-four-year-old Robert Long was found
strangled in his home. Long’s body was leaning over the living room couch with
his pants around his ankles. There were ligature marks on his neck, and a red
elastic exercise band was found nearby. His hands were by his neck and his
fingers were clenched. There was dried blood and severe swelling to his rectal
area.
The home had been ransacked. Items were knocked over in the hallway
and living room. The bedroom drawers had been rifled through, money bags were
strewn on the floor, and a briefcase and lockbox were pried open. 2 Family
members noticed a TV, camera, change jar, cash, and Long’s cell phone were all
missing. His blue Ford Taurus was not in the driveway.
1 Gary also asserts the prosecutor engaged in misconduct. He concedes no
objection was made to preserve his claims of prosecutorial misconduct. We
decline his invitation to bypass error-preservation and we do not address his
prosecutorial misconduct claims further. See State v. Smith, No. 18-2052, 2020
WL 376554, at *4 (Iowa Ct. App. Jan. 23, 2020) (finding error was not preserved
because “defendant waives his right to complain of prosecutorial misconduct if a
motion is not made ‘before submission to the jury’” (citation omitted)). Cf. State v.
Nelson, 234 N.W.2d 368, 371 (Iowa 1975) (“[O]bjections to remarks of counsel
during final jury argument are timely if urged at close of argument and in a motion
for mistrial made before submission to the jury.”).
2 Long ran a business out of his home and kept cash for his business and an
emergency fund there.
3
A subsequent investigation pointed to Gary, who had previously been paid
to do chores for Long. On January 3, 2020, Gary had a fight with his mother about
finances. It was snowing, so he went to Long’s house hoping to earn some money
shoveling. At about 10:47 p.m., surveillance video showed Gary leaving his
uncle’s house, which was less than half a mile from Long’s house.
On January 4, Long’s phone was used to log into Gary’s Facebook account.
Gary sent Facebook messages to a friend about plans to take a cell phone to “that
phone machine at Walmart.” Matching browser history showed a search for
EcoATM, which is a machine where people can trade cell phones for cash. Gary
also sent Facebook messages to friends bragging that he had a new car. Location
data indicated the phone was in the vicinity of Gary’s house.
About 10 a.m. on January 4, Gary and his mother pawned Long’s television
at EZ Pawn. Surveillance video showed Gary driving Long’s stolen car. A couple
days later, Gary and his uncle pawned Long’s cell phone at EZ Pawn. Surveillance
video again showed Gary driving Long’s stolen car.
After midnight on January 8, police spotted Long’s stolen car with two
people inside. When an officer began to follow in a marked squad car, the stolen
car sped up and made evasive moves. The car stopped momentarily for the
passenger—Gary’s mother—to get out. The stolen vehicle sped away, crashed
into a utility pole, and then was left abandoned. Police caught Gary nearby and
identified him as the driver. They found Gary’s cell phone in the center console.
In an interview, Gary gave several stories to detectives about how he came
to have the stolen Taurus. First, he said he found a key from a Taurus in a junkyard
that just happened to work on the stolen vehicle, which he found on the street.
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Gary was confronted about his mom pawning a TV. Gary said the TV came
from his uncle’s house and he claimed he did not know the owner of the car and
had never been to the owner’s house. He changed his story a few minutes later,
saying he picked a random house, knocked, and pushed in the door when a man
answered. He took the car keys as the man lay on the floor. After first denying
going through any drawers, he admitted opening drawers and finding an empty
cashbox. He denied taking the TV, cell phone, or anything except the car keys.
Gary denied fighting with the man; he claimed the man was knocked out and lying
face down by the door.
Gary changed his story again. He admitted he knew the victim and had
been working at his home since the previous summer. Gary said he went there
that night because it was snowing and he offered to shovel the driveway. Gary
said he left the man lying unconscious on the floor.
Still later, Gary explained he was angry about an argument with his mother
and he “took it out” on the victim. When detectives asked if the autopsy would
indicate strangulation, Gary admitted he strangled the man. The detective asked
if the ligature was a belt or shoelace, but Gary said he used a “something stretchy”
that he found in the living room. He described wrapping the stretchy band around
the victim’s neck and strangling him in the hallway because he was angry. Gary
admitted he stole the TV and pawned it with his mother. Gary still insisted the
victim remained fully clothed and that he did not assault the victim in any other
way.
Later in the interview Gary said, “I strangled him and then I raped him.”
Gary explained he dragged Long into the living room, strangled him on the couch,
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and then raped him after he finished strangling him. He denied being gay and the
detective’s suggestion that some older men like to take advantage of younger men
who need money. Gary said his decision to rape the man was “just spur of the
moment” and “something new, I guess.”
Police later executed a search warrant at Gary’s home, and in his bedroom
they found Long’s stolen laptop computer.
An autopsy confirmed Long died of ligature strangulation. The ligature
marks on his neck were consistent with being caused by a knot in the red elastic
exercise band found at the scene. Long also had petechial hemorrhages in both
eyes, indicative of strangulation. The medical examiner explained at trial that
ligature strangulation causes death by cutting off blood flow to the brain; a person
loses consciousness in ten to fifteen seconds, but “that force has to be applied for
another few minutes before you suffer brain death.”
The autopsy also indicated Long had blunt-force injuries to his jaw and
scalp, several scrapes and a bruise on his abdomen, and scrapes and bruises on
his shoulder, wrist, right thigh, and left leg. Long’s anus showed dark bruising,
which is evidence of trauma. The medical examiner collected an anal swab as
part of sexual assault kit. The anal swab screened positive for seminal fluid and
contained spermatozoa. The profile from the sperm fraction of the anal swab
contained a mixture of DNA from two people, the major contributor was a 1-in-10-
nonillion match to defendant Gary.3
3The minor contributor was too weak for identification. The expert explained “we
would expect somebody’s own DNA to be in their own anus.”
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The jury was instructed that to find Gary guilty of first-degree murder the
State was required to prove beyond a reasonable doubt that Gary strangled Long,
Long died as a result of being strangled, Gary acted with malice aforethought, and
he was participating in first-degree burglary or first-degree robbery.
The jury found Gary guilty of murder in the first degree, burglary in the first
degree, robbery in the first degree, and abuse of a corpse. On appeal, Gary claims
there is insufficient evidence of malice aforethought to sustain his first-degree
murder conviction.
We review challenges to the sufficiency of the evidence for correction of
errors at law. See State v. Crawford, 974 N.W.2d 510, 516 (Iowa 2022). A verdict
will be upheld if substantial evidence supports it. State v. Wickes, 910 N.W.2d
554, 563 (Iowa 2018). “Evidence is substantial if, ‘when viewed in the light most
favorable to the State, it can convince a rational jury that the defendant is guilty
beyond a reasonable doubt.’” Id. (citation omitted). “Evidence is not insubstantial
just because it might support a different conclusion; the only question is whether
the evidence supports the finding actually made.” State v. Koromah, No. 21-1606,
2023 WL 3092501, at *3–4 (Iowa Ct. App. Apr. 26, 2023) (finding substantial
evidence of malice aforethought where the defendant appeared to aim at victim
and fired more than one shot and the inferences arising from his actions after the
shooting and shifting stories to police about what happened).
The jury was instructed, “‘Malice’ is a state of mind which leads one to
intentionally do a wrongful act to the injury of another or in disregard of the rights
of another out of actual hatred, or with an evil or unlawful purpose.” Accord State
v. Green, 896 N.W.2d 770, 779 (Iowa 2017) (defining malice as “that condition of
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mind which prompts one to do a wrongful act intentionally, without legal justification
or excuse” (citation omitted)).
“Malice aforethought” was defined to the jury as “a fixed purpose or design
to do some physical harm to another which exists before the act is committed. It
does not have to exist for any particular length of time.” Malice aforethought “may
be found from the acts and conduct of the defendant, as well as the means used
to do the wrongful and injurious act.” State v. Kinsel, 545 N.W.2d 885, 888 (Iowa
Ct. App. 1996).
The jury was also instructed, “If a person has the opportunity to deliberate
and uses a dangerous weapon against another resulting in death, you may, but
are not required to infer that the weapon was used with malice,” and “Malice
aforethought may be inferred from the defendant’s use of a dangerous weapon.”
Accord State v. LuCore, 989 N.W.2d 209, 217 (Iowa Ct. App. 2023). A dangerous
weapon was defined, in part, as “any sort of instrument or device which is used in
such a way as to indicate the user intended to inflict death or serious injury, and
when so used is capable of inflicting death.” On our review, we conclude there is
substantial evidence to support the jury finding of malice aforethought.
Gary admitted he went to Long’s house in search of money. See State v.
Nelson, 791 N.W.2d 414, 426 (Iowa 2010) (“Motive can be relevant to whether a
defendant acted with malice aforethought.”). Gary admitted he strangled Long
because he was angry, which supports a finding that he acted with a fixed purpose
to do physical harm. See State v. Ayers, No. 01-0365, 2002 WL 985007, at *2
(Iowa Ct. App. May 15, 2002) (“We have previously considered evidence of a
defendant’s anger when assessing the sufficiency of evidence supporting a finding
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of malice aforethought.”). The fact that asphyxiation takes several minutes is also
evidence that supports a finding that he acted with a fixed purpose to do harm, as
is the evidence of all the other injuries inflicted on Long—blunt force injuries to the
jaw and scalp; bruises on the abdomen, shoulder, wrist, thigh, and leg; and the
trauma to the anus. Viewing the evidence in the light most favorable to the State,
we are convinced that a rational factfinder could find Gary guilty of first-degree
murder beyond a reasonable doubt. We affirm.
AFFIRMED.