This decision is published in table format in the North Western Reporter.
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.
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.
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 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 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.
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 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 ...