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State v. Everett

Court of Appeals of Iowa

January 9, 2020

STATE OF IOWA, Plaintiff-Appellee,
v.
MARK ANTHONY EVERETT, Defendant-Appellant.

          Appeal from the Iowa District Court for Woodbury County, John D. Ackerman, Judge.

         Mark Everett appeals his convictions for first-degree robbery and being a felon in possession of a firearm.

          Matthew R. Metzgar of Rhinehart Law, P.C., Sioux City, for appellant.

          Thomas J. Miller, Attorney General, and Linda J. Hines, Assistant Attorney General, for appellee.

          Considered by Bower, C.J., and May and Greer, JJ.

          BOWER, CHIEF JUDGE.

         Mark Everett appeals his convictions for first-degree robbery and being a felon in possession of a firearm, arguing the robbery verdict was against the weight of the evidence, trial counsel was ineffective in failing to object to opinion and vouching testimony, and there was insufficient evidence to support the felon in possession conviction. We affirm.

         I. Background Facts and Proceedings.

         On January 5, 2018, at approximately 12:15 a.m., Ry Tyler was working alone at a Kum & Go in Sioux City when a man carrying a silver handgun entered the store. The man demanded the moneybag, and he and Tyler went to the back room of the store. At some point, the intruder made Tyler empty his pockets, taking Tyler's LG flip cell phone and wallet. The intruder held the gun to Tyler's face and said he wasn't afraid to shoot him.

         There was no money in the back room, but the robber eventually took cash from both registers in the front of the store. When the robber exited, Tyler called 911 and reviewed the store's surveillance video to provide a description of the man to dispatch. When police arrived, they watched the surveillance video, which had captured the robbery. The robber was wearing a two-toned grey and black hooded coat, a ski mask, two pairs of blue boxer shorts, dark pants with zipper pockets, and boots. Sergeant Thomas Gill commented he appeared to be wearing a helmet under the ski mask or had "dreadlocks."

         Later, Tyler viewed the entire video surveillance from the evening of the robbery. He noticed that a man who looked like the robber and wore an identical coat and boots had been in the store twice prior to the robbery-once at around 9:16 p.m. and again around 10:59 p.m. On each earlier visit, the robber was with a different man. At 9:16 p.m., the man with him was about the same height as the robber but was larger in girth and wore an orange sweatshirt. At 10:59 p.m., the other man was shorter, wore well-worn jeans, and had a full beard.

         Officer Ryan Moritz, a K-9 handler, responded to the robbery dispatch and began to establish a perimeter around the Kum & Go. His K-9 partner, Dax, appeared to find a scent about a block away from the Kum & Go but lost it. Officer Moritz stopped tracking and returned to the convenience store where he watched the surveillance tape.

         About an hour after the 911 call, Officer Moritz and Dax returned to tracking and followed footprints in the snow, eventually following a trail to the northwest corner of 92115th Street. Dax led Officer Moritz to a cellar door of the residence where a light was on inside. Dax went down some steps to the door and "started lunging and barking at the door," which indicated to Officer Moritz the dog sensed the odor of humans.

         Police contacted the owners of the duplexes at 921-923 15th Street and learned the cellar door was part of the 921 residence. Sergeant Thomas Gill knocked on the door of 921. Eventually, a bearded male opened the door and identified himself as Jake Johnson. As he stood at the door, Sergeant Gill could also see a female in the living room, later identified as Mischalet Fenceroy. Sergeant Gill also noticed a two-tone sweatshirt on the floor that resembled the ...


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