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State v. Houston

Court of Appeals of Iowa

February 21, 2018

STATE OF IOWA, Plaintiff-Appellee,
v.
MICHAEL C. HOUSTON, Defendant-Appellant.

         Appeal from the Iowa District Court for Polk County, Jeanie K. Vaudt, Judge.

         Michael Houston appeals his convictions of second-degree robbery as a habitual offender and interference with official acts.

          Mark C. Smith, State Appellate Defender, and Vidhya K. Reddy, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney General, for appellee.

          Considered by Vogel, P.J., and Potterfield and Mullins, JJ.

          MULLINS, JUDGE.

         Michael Houston appeals his convictions of second-degree robbery as a habitual offender and interference with official acts. He contends (1) the evidence presented was insufficient to support one of the alternative theories of the second-degree robbery charge; (2) the district court erred in permitting the State to elicit irrelevant and prejudicial testimony regarding his income and employment and in allowing the State to use his financial affidavit to impeach him; (3) the district court erred in permitting the State to question him about the contents of letters he sent to witnesses, insinuating his wrongdoing in connection therewith; and (4) the prosecutor's alleged argumentative remarks, disparaging examination of him at trial, and statements in closing argument amounted to prosecutorial error resulting in a denial of his right to a fair trial. Houston also argues his counsel rendered ineffective assistance in failing to properly object to the evidence, questioning, and remarks falling under arguments two through four.

         I. Background Facts and Proceedings

         Based upon the evidence presented, a reasonable jury could have found the following facts. On July 3, 2016, at approximately 11:30 p.m., Merle Wilson was in his vehicle in the dark parking lot of a closed restaurant. He was waiting to pick up his granddaughter, who was working the closing shift at the restaurant. Wilson played games on his phone while waiting. Wilson heard a tap on his window and turned to observe what appeared to be a sawed-off shotgun pointing at his head. The wielder, Houston, ordered Wilson out of the car, and Wilson complied. Houston continued to point the gun-like object at Wilson and ordered, "Give me your fucking phone." Wilson declined, upon which Houston jabbed Wilson in the stomach with the object and advised, "You're going to get it." After a few jabs, Wilson attempted to grab the object[1] from Houston, and a tussle ensued. Seconds later, Houston struck Wilson on the back of the head with a flashlight, and Wilson fell to the ground. When Wilson attempted to get up, Houston struck him with the flashlight a second time. At this point, a restaurant employee, who was sitting in a separate vehicle located next to Wilson's, intervened, and Houston left the scene. Wilson called the police.

         Officer Ryan Neumann of the Des Moines Police Department received a description of the suspect and canvassed the area. He located Houston, who matched the description, in an alley. Neumann identified himself as a police officer and advised Houston to put his hands on a nearby fence. Houston moved toward Neumann with a metal object in his hand and advised, "You're going to have to shoot me." Due to Houston's subsequent movements, Neumann pepper sprayed Houston, after which Houston attempted to flee. Another officer joined Neumann in his chase of Houston and threatened Houston with the use of his taser, upon which Houston stopped, and the officers "went hands-on with" and secured him. Among other items found in the area and on Houston's person, the officers found an object resembling a sawed-off shotgun. Houston testified this object belonged to him, and he discarded it in the area upon his initial encounter with law enforcement.

         Houston was charged by trial information with first-degree robbery and interference with official acts with a dangerous weapon. The district court granted the State's subsequent motion to amend the trial information to include a habitual-offender enhancement. A jury found Houston guilty of the lesser-included offenses of second-degree robbery and interference with official acts without a dangerous weapon. Houston subsequently stipulated to his status as a habitual offender. The district court denied Houston's motion for a new trial and motion in arrest of judgment. Houston appealed following the imposition of sentence.

         II. Sufficiency of the Evidence

         Houston argues he is entitled to a new trial because the jury returned a general verdict on a marshalling instruction that allowed the jury to consider multiple theories of culpability, one of which was unsupported by substantial evidence. He specifically contends the evidence was insufficient to establish that he inflicted a serious injury, and because there is no way of knowing which theory of culpability the jury accepted, he should be afforded a new trial. The State contests error preservation on this issue, arguing Houston did not object to the jury instruction with "concrete particularity." We elect to bypass the State's error-preservation argument and proceed to the merits. See, e.g., State v. Taylor, 596 N.W.2d 55, 56 (Iowa 1999) (bypassing an error-preservation issue and proceeding to the merits of the appeal).

         The jury was instructed that "[a] serious injury is any bodily injury which creates a substantial risk of death or which causes serious permanent disfigurement." Cf. Iowa Code § 702.18(1)(b) (2016). The term "bodily injury" was defined as any "physical pain, illness or any impairment of physical condition." See State v. Gordon, 560 N.W.2d 4, 6 (Iowa 1997) (quoting State v. McKee, 312 N.W.2d 907, 913 (Iowa ...


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