from the Iowa District Court for Black Hawk County, Kellyann
M. Lekar, Judge.
Gonzalez Pena appeals from his convictions for first-degree
murder and carrying weapons. AFFIRMED.
C. Smith, State Appellate Defender, and Bradley M. Bender,
Assistant Appellate Defender, for appellant.
Rodolfo Gonzalez Pena, Fort Madison, appellant pro se.
J. Miller, Attorney General, and Kevin Cmelik and Linda J.
Hines, Assistant Attorneys General, for appellee.
by Danilson, C.J., and Doyle and Mullins, JJ.
DANILSON, CHIEF JUDGE.
Gonzalez Pena (Gonzalez) appeals from his convictions for
first-degree murder and carrying weapons. Gonzalez asserts
the facts do not support a felony-murder conviction, the
court erred in summarily denying his motion for new trial and
instructing the jury on felony murder, and trial counsel was
ineffective in not requesting that the jury determine if
Gonzalez committed one or more criminal acts. Because we find
the two shots fired were sufficiently independent of each
other to support a conviction of felony murder, trial counsel
was not required to seek an additional jury instruction, the
court did not err in denying Gonzalez's motion for new
trial, and there is substantial evidence to support a finding
of malice aforethought, we affirm the convictions.
Background Facts & Proceedings.
approximately 11:00 p.m. on August 22, 2014, Meighan
Middleton was in a Waterloo bar with her fiancé, Celio
Posada. Also in the bar were Jose Ruben Villalpando, the
owner who was bartending that night, and Ruben's sons,
George and Ivan Villalpando. Middleton and Posada sat at the
bar for approximately twenty-five minutes before Gonzalez
entered and took a seat near them at the bar. Although
Middleton and Posada did not know Gonzalez, the three engaged
in casual conversation. The men bought each other shots of
tequila, and Gonzalez purchased a bottle of Buchanan's,
which was placed in an ice bucket on the bar near the three
12:00 a.m., Gonzalez exited the building leaving the bottle
on the bar. Posada followed him carrying the bottle of
Buchanan's. A brief time later, Middleton picked up
Posada's wallet and cell phone from the bar and followed
the men out into the parking lot. She saw Gonzalez and Posada
talking, approached Posada, and asked him if he and she were
leaving. Posada told her no. Middleton then went back inside
to use the restroom.
Middleton left the restroom, George Villalpando was running
towards her yelling, "He's been shot. He shot your
husband." Middleton ran outside and saw Posada "on
the ground, up against" her Jeep. There was blood on the
right side of Posada's head. Middleton ran to Posada and
held his arm and neck as he took his last breaths.
approximately 12:20 a.m. on August 23, Deputy Sheriff Matthew
Harris, was on his regular patrol and driving westbound when
he observed a silver truck driving with no headlights. Deputy
Harris stopped the truck, and Gonzalez was the truck's
driver. Deputy Harris discovered that Gonzalez's license
was suspended and placed him under arrest. Deputy Harris
performed an inventory of Gonzalez's truck-he found a
pistol between the driver's and passenger's seats.
Deputy Harris also arrested Gonzalez for carrying weapons and
transported him to the county jail.
later, Ruben, George, and Ivan Villalpando and Middleton went
to the police station to give statements. Each was shown a
photo array, and each selected Gonzalez's photo as the
person who had been in the parking lot.
bullet cartridges were found in the bar parking lot. One
cartridge was located six feet from Posada. Another cartridge
was located approximately thirty-five feet from Posada's
body. An open knife was found near Posada's body. There
was a trail of Posada's blood between the location of the
furthest cartridge and Posada's body. A bullet was found
in Posada's left arm. Testing revealed that both this
bullet and the cartridges found in the parking lot were fired
from the gun seized from Gonzalez's vehicle.
an interview with Detective Brice Lippert, Gonzalez did not
initially admit any involvement in the shooting at the bar.
Gonzalez explained he was at the bar with a friend, Roberto.
Gonzalez denied being in the parking lot at the same time as
Posada. He then stated that Posada grabbed him by the shirt
when they were in the parking lot. When asked whether Posada
had any weapons on him, Gonzalez was uncertain. He later
mentioned being poked by a knife; however, when questioned
about whether he saw a knife, Gonzalez stated he did not see
one. Eventually, Gonzalez asserted that it was Roberto, his
twin brother, who had shot Posada. Gonzalez was charged with
first-degree murder and carrying weapons.
autopsy revealed that Posada had been shot in the chest and
in the head; both shots would have been fatal. The medical
examiner, Dr. Dennis Klein, concluded the first shot was to
Posada's chest and came from a distance. Dr. Klein
testified that Posada could have been mobile after being shot
in the chest but not after being shot in the head. Further,
Dr. Klein stated Posada was in a seated position when he was
shot in the head and this shot was from close range.
Halverson, a blood-stain-pattern analyst with the Iowa
Department of Criminal Investigations, also concluded Posada
was in a seated position by Middleton's Jeep when he was
shot in the head. Victor Murillo, the State's
firearm's expert concurred with Dr. Klein's
conclusion Posada was shot in the chest from a distance and
in the head from a close range.
trial, Gonzalez testified that when he exited the bar, Posada
walked outside with him. Gonzalez stated that as he walked
toward his parked truck, he waved his hand and told Posada,
"See you later." Posada then grabbed Gonzalez by
the shirt in the corner of the parking lot and tried to stab
him with a knife. Gonzalez testified Posada said, "MS-13
and I kill people." Gonzalez stated he hit Posada's
hand and Posada dropped the knife. Gonzalez then ran away and
heard Posada say to him, "I'm going to kill
you." Gonzalez testified he was carrying a gun, and as
he tried to get to a lighted area of the parking lot he fired
the first shot; he did not know whether it struck Posada. He
testified Posada came in front of him and he fired the second
shot. Gonzalez then got in his truck and drove away.
the discussion regarding the jury instructions, Gonzalez
objected to the inclusion of the felony-murder alternative of
the first-degree murder instruction. Specifically, Gonzalez
We're objecting to the inclusion of the felony murder
instruction which essentially is 4B and anything that's
applicable to it following that marshalling instruction. I
understand the State's argument will be that they have
two separate acts because there is the first gunshot and the
second gunshot. Presumably, the argument is that the first
gunshot was an attempted murder or willful injury being the
predicate felony for-forcible felony, excuse me, for the
second gunshot which led to the death of Mr. Posada.
The first argument is that these are not different acts or
sufficiently different acts to warrant parsing them out. . .
And that-where that ties into, Your Honor, is it goes back to
the-the Velez case, as well as the Ross
case where we're kind of looking at-in those cases,
they're looking at units of prosecutions, but you start
with the idea that you can say these are separate acts and
then ultimately convict somebody of separate acts.
court denied Gonzalez's request and included the
felony-murder alternative in the instruction.
with respect to the charge of first-degree murder, the jury
was instructed that to prove Gonzalez guilty the State was
required to prove all of the following elements beyond a
1. On or about the 23rd day of August, 2014, the defendant
shot Celio Posada.
2. Celio Posada died as a result of being shot by the
3. The defendant acted with malice aforethought.
4(a). The defendant acted willfully, deliberately,
premeditatedly and specific intent to kill Celio Posada, or
4(b). The defendant was participating in the offense of
attempted murder or willful injury causing serious injury, as
defined in [other instructions].
element 3, the jury was instructed malice aforethought
"may, but is not required to, be inferred from the
defendant's use of a dangerous ...