Appeal from the Iowa District Court for Scott County, Joel W. Barrows, Judge.
Donovan Dean appeals from his conviction following a jury trial for intimidation with a dangerous weapon and conviction following a bench trial, held simultaneously, for felon in possession of a firearm.
Mark C. Smith, State Appellate Defender, Martha J. Lucey, Assistant Appellate Defender, and Matt Jarvey, Student Legal Intern, for appellant.
Thomas J. Miller, Attorney General, Tyler J. Buller, Assistant Attorney General, Mathias Robinson, Student Legal Intern, Michael J. Walton, County Attorney, and Will R. Ripley, Assistant County Attorney, for appellee.
Considered by Vogel, P.J., and Mullins and McDonald, JJ.
Donovan Dean appeals from his conviction following a jury trial for intimidation with a dangerous weapon and conviction following a bench trial for felon in possession of a firearm. Dean asserts substantial evidence does not support either conviction because there was no physical evidence he had a "real gun, " as opposed to a "fake gun." Dean further asserts trial counsel was ineffective in failing to object to a jury instruction defining "within" (an assembly of people) as well as failing to argue there was insufficient evidence to prove Dean shot "into or through" an assembly of people. We find there was sufficient evidence to support the jury's verdict. We further find counsel breached no essential duty and no prejudice can be established by the lack of objection to the jury instruction. Therefore, we affirm.
I. Factual and Procedural Background
On April 6, 2012, Dean was at a mall in Davenport. In one of the stores, he and his group of friends saw people "they had problems with." Dean and his friends then walked to the food court, where they observed two of the other group walking toward the food court's south doors. A fight ensued, which was captured on security video. During the fight, a chair was thrown at Dean, and it struck him in the face.
Dean, his friends, and the other group ran outside toward their cars. Witnesses testified Dean appeared to be chasing members of the other group. Dean then ran to the car in which he came to the mall and retrieved a black revolver. A disinterested eyewitness testified she saw Dean pull out "a short-barreled revolver—black" and fire it at the group running away, down the parking lot's aisle. One of the alleged victims testified he heard gun shots coming from behind him. Police apprehended Dean approximately four months later. Neither the gun nor any other forensic evidence was obtained.
On June 13, 2012, the State charged Dean with intimidation with a dangerous weapon with intent, in violation of Iowa Code section 708.6 (2011), and felon in possession of a firearm, in violation of Iowa Code section 724.26(1). The intimidation-with-intent charge was tried before a jury, and the felon-in-possession charge was tried before the judge. Dean stipulated to the fact he had been previously adjudicated delinquent for committing a class "D" felony. He was found guilty on both counts and sentenced on October 11, 2012, to a term not to exceed ten years on the intimidation count and five years on the felon in possession count, to be served concurrently. Dean now appeals.
II. Sufficiency of the Evidence
Dean argues there is not sufficient evidence to support either guilty verdict. He claims that, because there was no physical evidence he fired a gun, as opposed to a starter's pistol or a non-functioning replica, and the eyewitness only testified she saw him fire a short-barreled black revolver, the fact finder must have necessarily speculated as to whether he actually used a "dangerous weapon" or firearm. Consequently, a rational trier of fact could not find him guilty beyond a reasonable doubt under either count.
We review challenges to the sufficiency of the evidence for correction of errors at law. State v. Quinn, 691 N.W.2d 403, 407 (Iowa 2005). We view the record in the light most favorable to the non-moving party—the State—and make all legitimate inferences and presumptions that may be reasonably deduced from the evidence. Id. If substantial evidence supports the verdict, we will affirm. Id. Evidence is ...