IN THE COURT OF APPEALS OF IOWA
No. 4-182 / 02-1338
Filed June 9, 2004
STATE OF IOWA,
JOSETTE AMANDA WILLIAMS,
Appeal from the Iowa District Court for Polk County, Robert J. Blink,
Josette Amanda Williams appeals from her conviction for first-degree
Linda Del Gallo, State Appellate Defender, and Shellie Knipfer,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Thomas Tauber, Assistant Attorney
General, John Sarcone, County Attorney, and Nan Horvat and Jeffrey Noble,
Assistant County Attorneys, for appellee.
Heard by Mahan, P.J., and Zimmer and Eisenhauer, JJ.
Defendant Josette Amanda Williams appeals from her conviction for
first-degree murder in violation of Iowa Code sections 707.1 and 707.2
(2001). She contends the district court erred in admitting evidence that
she and her codefendant shoplifted at a mall after Williams shot and killed
Tam Minh Vu. We affirm.
I. Background Facts & Proceedings
During the early afternoon of August 23, 2001, Josette Amanda
Williams shot and killed Tam Minh Vu. The shooting occurred while Williams
and Porsha Allen were stealing Vu's car. After Williams shot Vu, she and
Allen drove Vu's car, a 1993 green Honda Accord, to the home of Williams'
sister, Johnysa Williams. Shortly after they arrived, Williams removed the
license plates and identifying papers from Vu's car.
Williams and Allen left Johnysa Williams' residence approximately ten
to twenty minutes after they arrived. They took the gun used in the
shooting with them and drove Vu's car to Merle Hay Mall where they
shoplifted some clothing and shoes from two stores. As they were leaving
the mall, Allen asked Williams if she felt bad that she shot Vu. Williams
Williams and Allen then drove to the Drake Liquor Store where Williams
bought a cigar with change found in Vu's car. At the liquor store,
Williams and Allen ran into La Chay McGruder. They invited him to join
them. The three of them then drove to the Central City Liquor Store to get
some cigarettes. While they were in the liquor store, a Des Moines police
officer spotted Vu's car. Williams, Allen and McGruder left the liquor
store and drove away in Vu's Honda. Williams noticed that a police car was
following them. Realizing that she had been spotted, Williams sped away.
Following a short pursuit, Williams slammed on the brakes and she and Allen
ran from the car. Police apprehended both of them after a short chase on
foot and transported the pair to the police station.
At the police station, Detective David Ness asked Williams for her
name and address. Williams immediately began to cry and said she would
take officers to the gun. After Williams waived her constitutional rights
in writing, she led Detective Ness to the area through which she had run
while fleeing from the police. She then showed Detective Ness the gun used
in the shooting, which was hidden behind a piece of sheet-rock in a machine
shop. When they returned to the police station, Detective Ness interviewed
Williams. Williams told the detective three different stories.
Initially, Williams claimed she and Allen met McGruder at the Drake
Liquor Store. She said McGruder was driving a green Honda Accord and that
he asked her to drive it. Williams said she agreed and then drove to the
Central City Liquor Store. According to Williams, while they were on their
way to the liquor store, McGruder showed her a gun that he had in the glove
compartment. She also informed Ness she noticed some clothing in the
backseat that appeared to be new. When Williams asked McGruder about the
clothing he reportedly told her his girlfriend stole clothes and then sold
them at half price. When they arrived at the liquor store, Williams
claimed McGruder noticed the police and then told her to drive away.
According to Williams, McGruder told her where to drive and when to stop
and run. She claimed she knew nothing about a shooting involving an Asian
After officers interviewed Allen and McGruder, Detective Ness
confronted Williams with what he believed were inconsistencies in her
initial statement. Williams then gave a second statement. She told Ness
that she and Allen had been walking around looking for a ride to Merle Hay
Mall. Williams said she and Allen approached Vu at a Kum & Go and
persuaded him to give them a lift. After Vu took them to where they told
him to go, Williams stated she produced a screwdriver and ordered Vu to get
out of the car. She claimed she and Allen then drove away. Williams made
no mention of a gun. According to Williams, she and Allen drove to Merle
Hay Mall in Vu's car where they stole some items from two stores.
After Detective Ness reminded Williams she had already led police to a
gun, she gave a third version of the events surrounding the theft of Vu's
car. Williams admitted she had used a gun to steal Vu's car from him;
however, she claimed the shooting was an accident. She said that after Vu
had exited the vehicle, she slid across the front seat to sit behind the
wheel. Williams claimed the gun went off accidentally when she was trying
to manipulate the steering wheel or gearshift. Williams also contended she
did not point the gun at Vu or intend to kill him. Williams told Ness she
and Allen went to Johnysa Williams' house after taking Vu's car and then
drove to the Merle Hay Mall where they stole some items.
On October 4, 2001, the State charged Williams and Allen with murder
in the first degree. Both Williams and Allen moved to sever their trials.
The district court granted their motions. Allen subsequently pled guilty
to robbery in the first degree and assault while committing a felony and
agreed to testify against Williams. Allen was sentenced to thirty-five
years in prison.
Prior to her trial, Williams filed a motion in limine requesting in
part that the State not be allowed to present evidence that Williams
shoplifted items from the Merle Hay Mall after the shooting. The court
ruled that the challenged evidence was admissible because it bore on
Williams' state of mind at the time of the crime and because it completed
the story of the crime.
At her trial, Williams defended on the theory that the shooting was
accidental. The jury was not persuaded by Williams' defense and returned a
guilty verdict on the charge of first-degree murder. Williams was
sentenced to life in prison. She now appeals. Williams contends the trial
court abused its discretion in admitting evidence that she and Allen
shoplifted after she shot Tam Minh Vu.
II. Scope of Review
We generally review evidentiary rulings for abuse of discretion.
State v. Rodriquez, 636 N.W.2d 234, 239 (Iowa 2001). "An abuse of
discretion occurs when the trial court exercises its discretion on grounds
or for reasons clearly untenable or to an extent clearly unreasonable."
Id. "A ground or reason is untenable when it is not supported by
substantial evidence or when it is based on an erroneous application of the
law." Graber v. City of Ankeny, 616 N.W.2d 633, 638 (Iowa 2000).
Williams' claims the district court erred in admitting evidence that
she and Allen shoplifted at a mall after the shooting occurred. Iowa Rule
of Evidence 5.404(b) controls the admissibility of bad-acts evidence. It
Evidence of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show that the person acted in
conformity therewith. It may, however, be admissible for other
purposes, such as proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident.
Iowa R. Evid. 5.404(b).
An important question regarding bad-acts evidence is whether the
disputed evidence is relevant and material to some legitimate issue other
than a general propensity to commit wrongful acts. State v. Barrett, 401
N.W.2d 184, 187 (Iowa 1987). If challenged evidence is relevant to a
material issue in dispute, then it is prima facie admissible. State v.
Mitchell, 633 N.W.2d 295, 298 (Iowa 2001).
Courts employ a two-step analysis to determine whether evidence of bad-
acts is admissible. Id. First, the court must decide whether such
evidence is relevant to a legitimate factual issue in dispute. Id. If the
court determines the evidence is relevant, then the court must decide
whether the probative value of the evidence is substantially outweighed by
the danger of unfair prejudice to the defendant. Id.; Iowa R. Evid. 5.403.
If the answer to the second question is yes, this overcomes the prima
facie admissibility of the evidence and the court must exclude the
evidence. Mitchell, 633 N.W.2d at 298-299. We will reverse the district
court's decision to admit bad-acts evidence only on finding a clear abuse
of discretion. Id.
Williams first contends the disputed evidence was not relevant. She
argues that because the shoplifting incidents took place "well after" she
shot Vu, the evidence was not relevant to any material fact at issue. The
State argues that the challenged evidence was relevant to several
legitimate issues in this case including Williams' intent, the question of
whether she acted with malice aforethought, and the question of whether the
pistol used in the shooting discharged accidentally as Williams contended.
The State also challenges the defendant's suggestion that the evidence was
too remote in time from the shooting to be relevant.
Evidence is relevant when it has any tendency to make the existence of
any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence. State v.
Brown, 569 N.W.2d 113, 116 (Iowa 1997). Evidence that is not relevant is
not admissible. Iowa R. Evid. 5.402. Unless the prosecutor can articulate
a valid, noncharacter theory of admissibility of bad-acts evidence, such
evidence should not be admitted. See State v Sullivan, 679 N.W.2d 19, 28
(Iowa 2004) (district court abused its discretion in admitting evidence
that defendant possessed crack cocaine with intent to deliver three years
before he allegedly committed the offense of possession of marijuana with
intent to deliver).
The record in this case reveals the shooting was reported at 12:42
p.m., shortly after it occurred. Police officers spotted Williams at the
Central City Liquor Store at 3:18 p.m. that same day. During the time
between the shooting and when Williams was spotted in possession of Vu's
car, Williams and Allen drove to the residence of Williams' sister, drove
to the mall, entered the mall and stole clothing from Old Navy, left the
mall, drove to another location in the mall parking lot, and then re-
entered the mall and stole some shoes. Williams and Allen then drove to
the Drake Liquor Store for a cigar. After leaving that location, they
drove to the Central City Liquor Store where they were spotted. The State
suggests that reasonable jurors could conclude Williams and Allen were at
the mall shoplifting within one hour of the shooting. We agree that this
is a reasonable inference. Based on the evidence presented at trial,
reasonable jurors could also have concluded that Williams knew she had shot
Vu when she went to the Mall with Allen.
The fact that Williams went to the mall to shoplift about an hour
after the shooting supports the State's argument that Williams was
indifferent to Vu's fate. Reasonable jurors could conclude that Williams'
behavior shortly after the shooting makes it more probable that she shot Vu
intentionally and with malice aforethought, and not accidentally as she
claimed. Williams' behavior after the shooting was inconsistent with
the behavior one would expect from a person who sincerely believed that she
had just accidentally shot another person. See State v. Nance, 533 N.W.2d
557, 562-63 (Iowa 1995) (evidence of a defendant's behavior after a
shooting, which is inconsistent with the defendant's claim that the
shooting was accidental, supports the inference that the shooting was in
fact intentional). We conclude the challenged evidence was relevant.
Williams also contends that any probative value of the evidence of her
shoplifting was substantially outweighed by the danger of unfair prejudice.
See Iowa R. Evid. 5.403. If the probative value of the challenged
evidence was substantially outweighed by the danger of unfair prejudice,
the evidence should not have been admitted. State v. Brown, 569 N.W.2d
113, 116 (Iowa 1997). "Unfair prejudice is an undue tendency to suggest
decisions by the fact finder based on an improper basis, often an emotional
one." State v. Plaster, 424 N.W.2d 226, 231 (Iowa 1988). Of course, the
whole purpose of evidence is to persuade the fact finder to find in favor
of one party, so most evidence that damages a party's case is not to be
considered unfairly prejudicial. Id. "Unfairly prejudicial evidence is
evidence that appeals to the jury's sympathies, arouses its sense of
horror, provokes its instinct to punish, or triggers other mainsprings of
human action [which] may cause a jury to base its decision on something
other than the established propositions in the case." Brown, 569 N.W.2d at
Williams argues the shoplifting evidence was prejudicial because it
suggested that she had a "propensity" to commit crimes. We believe there
was little risk that the jury would infer Williams had a propensity to
commit murder based on the evidence of her shoplifting. No reasonable
juror could conclude that since Williams shoplifted she must have shot Vu.
Moreover, the record does not support the conclusion that the challenged
evidence was offered and admitted to show Williams' criminal disposition.
The shoplifting evidence was offered to show the complete story of the
crime, which began with Williams and Allen's desire to steal a car to go to
the mall and get clothing, and ended with them acting on their intention.
The fact that evidence of the circumstances immediately surrounding Vu's
murder included some evidence that Williams committed a relatively minor
offense soon after the shooting did not result in unfair prejudice to
Williams. We find the probative value of the challenged evidence was not
substantially outweighed by the danger of unfair prejudice.
Because we conclude the trial court acted within its discretion in
determining that the shoplifting evidence was relevant, and not unduly
prejudicial, we affirm Williams' conviction.
 In the alternative, Williams claims her trial counsel was ineffective
if she failed to properly preserve error on her challenge to the admission
of the evidence of shoplifting during trial. The record reveals the
parties treated the court's ruling on Williams' motion in limine as a final
decision regarding the shoplifting evidence. In its brief on appeal, the
State acknowledges that Williams preserved her claim for our review.
Accordingly, we find it unnecessary to address Williams' alternative claim
of ineffective assistance of counsel.
 Although Williams gave conflicting accounts regarding the shooting, she
did admit that she saw Vu lie down after she fired the gun. Allen
testified she saw Williams stick her hand out the car window and shoot Vu.
She knew that Vu had been shot because Williams had pointed the gun right
at him before she fired. Allen also testified that she saw Vu clutch the
middle of his chest after Williams shot him. Later on, when Allen and
Williams were leaving Merle Hay Mall, Allen asked Williams if she felt bad
for shooting Vu. Williams laughed.
 The disputed evidence also discredited Williams' initial statement to
Detective Ness which suggested that when Williams first observed the Honda
Accord, it was being driven by La Chay McGruder, and that the new clothing
found in the victim's vehicle was connected to McGruder's girlfriend rather
than to Williams and Allen.