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State v. Richardson

Court of Appeals of Iowa

June 7, 2017

STATE OF IOWA, Plaintiff-Appellee,
v.
ROYLEE RICHARDSON JR., Defendant-Appellant.

         Appeal from the Iowa District Court for Scott County, Mary E. Howes, Judge.

         The defendant appeals from his convictions for intimidation with a dangerous weapon, possession of a firearm by a felon, willful injury resulting in bodily injury, and going armed with intent. AFFIRMED.

          Stuart G. Hoover of Blair & Fitzsimmons, P.C., Dubuque, for appellant.

          Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant Attorney General, for appellee.

          Considered by Potterfield, P.J., and Doyle and Tabor, JJ.

          POTTERFIELD, Presiding Judge.

         Roylee Richardson Jr. appeals from his convictions for intimidation with a dangerous weapon, possession of a firearm by a felon, willful injury resulting in bodily injury, and going armed with intent. Richardson maintains there was insufficient evidence to support his conviction for intimidation with a dangerous weapon. Additionally, he claims trial counsel was ineffective for failing to object to the admission of a jailhouse phone call purportedly made by the defendant. Richardson claims counsel should have objected because (1) the State had not laid the necessary foundation or properly authenticated the recording before requesting to have it admitted and (2) the probative value of the phone call was substantially outweighed by the danger of unfair prejudice.

         I. Sufficient Evidence: Intimidation with a Dangerous Weapon.

         Richardson maintains there was not sufficient evidence to support his conviction for intimidation with a dangerous weapon because the State failed to present evidence the victim of the shooting actually experienced "apprehension." See State v. White, 319 N.W.2d 213, 215 (Iowa 1982) ("In addition the victim- here the occupant of the car-must experience 'apprehension of serious injury.' Furthermore, this apprehension must be reasonable under the circumstances. In other words, an unjustified apprehension, one for which a jury might find no basis in fact, will not suffice."). In response, the State maintains Richardson has not preserved this argument for our review. We agree with the State.

         First, we note Richardson incorrectly claims in his appellate brief, "Error was preserved by the timely filing of the Notice of Appeal in this matter." See Thomas A. Mayes & Anuradha Vaitheswaran, Error Preservation in Civil Appeals in Iowa: Perspectives on Present Practice, 55 Drake L. Rev. 39, 48 (2006) ("However error is preserved, it is not preserved by filing a notice of appeal. While this is a common statement in briefs, it is erroneous, for the notice of appeal has nothing to do with error preservation. In fact, the two concepts are mutually exclusive."). Rather, sufficiency-of-the-evidence claims are preserved through a timely and specific motion for judgment of acquittal.[1] See State v. Williams, 695 N.W.2d 23, 27 (Iowa 2005) ("[W]hen the motion for judgment of acquittal did not make reference to the specific elements of the crime on which the evidence was claimed to be insufficient, it does not preserve the sufficiency of the evidence issue for review.").

         Here, when the State rested, Richardson moved for a judgment of acquittal, [2] stating:

At this time, I would like to make a motion for [judgment of acquittal] on each count within the Trial Information, in that the State has not met its burden of proof, at this time, required by law, and that- specifically, as to Count 3, which is Willful Injury Resulting on Bodily Injury.

         He renewed his motion at the close of evidence, stating:

The defendant makes-renews [his] motion for judgment of acquittal on all five charges[3] in that the State has not met its burden on a number of them, specifically the conspiracy count in if showing that both witnesses would know or would not know whether or not a conspiracy or an agreement had taken place. Both testified they just got in the car and went and ended up in this situation. That doesn't make a conspiracy. You have to agree to ...

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