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State v. Asbury

Court of Appeals of Iowa

September 26, 2018

STATE OF IOWA, Plaintiff-Appellee,
v.
STEVEN ASBURY, Defendant-Appellant.

          Appeal from the Iowa District Court for Polk County, Paul D. Scott, Judge.

         Steven Asbury appeals from judgment and sentence entered upon his conviction for first-degree murder following a jury trial.

          Mark C. Smith, State Appellate Defender, and Maria L. Ruhtenberg, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, Kevin Cmelik and Kelli A. Huser (until withdrawal), Assistant Attorneys General, for appellee.

          Heard by Danilson, C.J., and Mullins and McDonald, JJ.

          DANILSON, CHIEF JUDGE.

         Steven Asbury appeals from judgment and sentence entered upon his conviction for first-degree murder following a jury trial. On appeal, Asbury asserts there was insufficient evidence of the identity of who shot the victim. He also contends he received ineffective assistance of trial counsel due to his attorney's failure to object to two jury instructions. Because we find substantial evidence supports the jury verdict and Asbury was not prejudiced by counsel's failure to object to the instructions, we affirm.

         I. Background Facts and Proceedings

         On the morning of July 15, 2016, Tabitha Lee borrowed Steven Asbury's maroon Ford F-150 pickup truck to visit James Patton. Asbury and Patton both had past romantic relationships with Lee. Patton had been asked to leave the camper in which he had been living, and Lee was bringing the truck to assist him. Patton and Lee loaded his belongings into Asbury's truck. Later that evening, Lee saw text messages she received from Asbury. The text messages indicated Asbury was angry Lee was using his truck to assist Patton, and, in one message, Asbury asked Lee if she wanted him to shoot Patton.

         After Lee read the text messages, Lee and Patton got into an argument at a fast-food restaurant, and a restaurant employee called the police. Patton took his bicycle out of Asbury's truck and rode away. Lee then drove the truck, still filled with Patton's belongings, to Asbury's residence. Asbury was angry Patton's belongings were in the truck, and he told Lee he would not return the items.

         Five days later, on the morning of July 21, Lee was with Asbury in his truck, and they were arguing. The argument began after Patton contacted Lee about getting his belongings back from Asbury. After the argument, Asbury's truck broke down, and Michelle Killen came to assist Lee and Asbury. Killen dropped Lee off at a fast-food restaurant and stayed with Asbury. Asbury planned to have his truck towed to Killen's auto shop.

         At about 5:45 p.m. on July 21, Patton was at the Casey's convenience store on East 14th Street and Euclid Avenue in Des Moines, Iowa. Patton purchased beer, exited the store, and walked around the building. Patton walked toward a maroon Ford F-150 pickup truck in a laundromat parking lot and was shot multiple times-in the heart, lung, and twice in the groin area. The truck quickly left the area after the shooting. Police and rescue personnel were called to the scene, but Patton died from his injuries.

         The State charged Asbury with first-degree murder in connection with Patton's death. Asbury pleaded not guilty, and the case was tried to a jury. During trial, it was undisputed that Patton was shot, that he died as a result, and that the shooter was in a maroon Ford F-150 pickup truck. Asbury maintained he was not the person who shot Patton.

         Robert Norris, who was Asbury's friend, cooperated with the State to avoid being charged for Patton's murder. During the trial, Norris testified Asbury came to Norris's house on the afternoon of July 21 and asked Norris to drive him in Asbury's truck to the Casey's on East 14th Street and Euclid Avenue. Norris explained Asbury often asked Norris to drive him places in Asbury's truck. Norris drove Asbury to the Casey's, and Asbury told him to park the truck across the street facing the Casey's. After five to ten minutes, Asbury told Norris to pull the truck across the street to the Casey's. As Norris moved the truck, Asbury called out to a man-who Norris later learned was Patton-to come over to the truck. Norris parked the truck in a laundromat parking lot behind the Casey's, and Patton walked up to the passenger side. Asbury grabbed a handgun from under the passenger seat, pointed it at Patton, asked if Patton thought "this was a game," and fired at least four shots. Norris then drove the truck away from the area and toward his house.

         Norris parked the truck about a mile from his house, got out of the truck, took off his shirt and hid it in a bush. Norris told Asbury to take his shirt off, and they hid that shirt elsewhere. Norris's shirt was green, and Asbury's shirt was red. Asbury and Norris walked the rest of the way to Norris's house. After they arrived at Norris's house, they shaved their beards and changed clothes. Asbury departed the house but left his truck keys. Asbury's ...


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