STATE OF IOWA, Plaintiff-Appellee, vs. SOKLAY LAI LOEUM, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 6-603 / 04-1441
Filed November 30, 2006
STATE OF IOWA,
Plaintiff-Appellee,
vs.
SOKLAY LAI LOEUM,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Robert B. Hanson,
Judge.
Soklay Lai Loeum appeals his conviction for second-degree murder.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Linda Del Gallo, State Appellate Defender, and Martha Lucey, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney
General, John P. Sarcone, County Attorney, and Bob Diblassi and George
Karnas, Assistant County Attorneys, for appellee.
Heard by Huitink, P.J., Vogel, J., and Robinson, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2005).
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HUITINK, P.J.
Soklay Lai Loeum appeals his second-degree murder conviction.
We
affirm in part, reverse in part, and remand for further proceedings.
I. Background Facts and Proceedings.
On March 9, 2004, Loeum was charged with first-degree murder for the
shooting death of his brother, Roeutana Loeum. According to the State’s version
of events, Loeum shot Roeutana Loeum in the head with a nine millimeter pistol
during a heated argument. Loeum claimed he only intended to “pistol whip”
Roeutana but the pistol accidentally discharged when he struck Roeutana on the
head with it. Following a jury trial, Loeum was convicted of the lesser offense of
murder in the second degree and sentenced accordingly.
On appeal, Loeum argues:
I.
II.
III.
The State presented insufficient evidence to convict Soklay
Loeum of murder in the second degree.
Trial counsel provided ineffective assistance of counsel by
failing to object to jury instruction twenty-seven.
The district court erred in denying the motion for a new trial.
II. Sufficiency of the Evidence.
We review a sufficiency of the evidence challenge for correction of errors
at law. State v. Thomas, 561 N.W.2d 37, 39 (Iowa 1997). A jury’s finding of guilt
is binding upon us unless there is not substantial evidence in the record to
support the verdict.
State v. Sutton, 636 N.W.2d 107, 110 (Iowa 2001).
Substantial evidence is evidence that could convince a rational trier of fact that
the defendant is guilty beyond a reasonable doubt.
State v. Robinson, 288
N.W.2d 337, 339 (Iowa 1980). We view the evidence in the light most favorable
to the State, but consider all the evidence, not just the evidence supporting the
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verdict.
Thomas, 561 N.W.2d at 39.
“Direct and circumstantial evidence is
equally probative.” State v. Shortridge, 589 N.W.2d 76, 80 (Iowa Ct. App. 1998).
The evidence must raise a fair inference of guilt as to each essential element of
the crime and must do more than raise suspicion, speculation, or conjecture.
State v. Webb, 648 N.W.2d 72, 76 (Iowa 2000).
Iowa Code section 707.1 (2003) states “[a] person who kills another
person with malice aforethought either express or implied commits murder.”
“Malice aforethought is therefore an essential element of second-degree murder
and is the element that distinguishes second-degree murder from other lesser
included offenses.” State v. Reeves, 670 N.W.2d 199, 207 (Iowa 2003). Malice
aforethought is defined as:
a fixed purpose or design to do some physical harm to another
existing prior to the act complained of; it need not be shown to have
existed for any length of time before, . . . ; it is sufficient if such
purpose was formed before and continued to exist at the time of the
injury.
State v. Hofer, 238 Iowa 820, 833, 28 N.W.2d 475, 482 (1947). In other words,
“it is sufficient if malice existed prior to the act—the length of time it existed is not
material.” Id. at 834, 28 N.W.2d at 482. “The law allows a presumption of malice
aforethought from the use of a deadly weapon in the absence of evidence to the
contrary.” Reeves, 670 N.W.2d at 207 (citing State v. Woodmansee, 212 Iowa
596, 620, 233 N.W. 725, 736 (1930)). “[T]he presumption is only permissive.”
Reeves, 670 N.W.2d at 207 (citing State v. Elam, 328 N.W.2d 314, 318 (Iowa
1982)). “[T]he presumption may be rebutted by evidence showing the killing was
accidental, under provocation, or because of mental incapacity.” Reeves, 670
N.W.2d at 207.
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Contrary to Loeum’s claims, we find the record contains sufficient
evidence supporting his second-degree murder conviction.
Eyewitness
testimony indicates Loeum and Roeutana engaged in a heated argument that
escalated into a violent confrontation. The record also indicates Loeum struck
Roeutana in the head with a handgun with sufficient force to cause it to discharge
and kill Roeutana. Moreover, Loeum’s statement to investigators indicates he
knew the handgun would discharge upon sufficient contact with the barrel end of
the handgun.
Although the record contains additional conflicting evidence
concerning Loeum’s accidental homicide defense, we find the foregoing sufficient
to convince a rational trier of fact that Loeum killed Roeutana with malice
aforethought. We therefore affirm on this issue.
III. Ineffective Assistance of Counsel/Jury Instruction No. 27.
We review claims of ineffective assistance of counsel de novo. Wemark v.
State, 602 N.W.2d 810, 814 (Iowa 1999). To establish ineffective assistance of
trial counsel, Loeum must prove both that his attorneys’ performance fell below
“an objective standard of reasonableness” and that “the deficient performance
prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.
Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). To establish a breach of duty, he
must overcome the presumption that his trial attorneys were competent and
prove that their performance was not within the range of normal competency.
State v. Buck, 510 N.W.2d 850, 853 (Iowa 1994). To establish prejudice, he
must show a reasonable probability that, but for counsels’ errors, the result of the
proceeding would have been different. State v. Atwood, 602 N.W.2d 775, 784
(Iowa 1999). If Loeum fails to prove either element, his ineffective assistance
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claim cannot succeed. State v. Query, 594 N.W.2d 438, 445 (Iowa Ct. App.
1999).
Loeum argues that Jury Instruction No. 27 is incomplete and not a correct
statement of the law and his trial counsel had a duty to object to it. We disagree.
Instruction No. 27 and Iowa Uniform Criminal Jury Instruction 700.10 are
identical. Both state “[m]alice aforethought may be inferred from the Defendant’s
use of a dangerous weapon.” Iowa Code section 702.7 classifies a dangerous
weapon as any instrument capable of inflicting death or serious injury by its
design or actual use and including a pistol or revolver. “[M]alice aforethought
may be inferred from defendant’s use of a pistol or revolver, i.e., a deadly
weapon.” State v. Smith, 242 N.W.2d 320, 326 (Iowa 1976). The instruction
must correctly state the law and be supported by substantial evidence. State v.
Predka, 555 N.W.2d 202, 204 (Iowa 1996). Instructions derived from the Uniform
Jury Instructions are presumptively valid; the supreme court on review is
reluctant to disapprove them.
State v. Weaver, 405 N.W.2d 852, 855 (Iowa
1987). Because Instruction No. 27 correctly states the law on this issue and
substantial evidence supported its submission, trial counsel had no duty to make
a meritless objection to it. We also affirm on this issue.
IV. Motion for New Trial.
Rulings on motions for a new trial are reviewed for abuse of discretion.
State v. Ellis, 578 N.W.2d 655, 659 (Iowa 1998). Loeum argues the district court
applied the incorrect legal standard in ruling on his motion for new trial. Trial
courts have broad discretion in deciding motions for new trial. State v. Atley, 564
N.W.2d 817, 821 (Iowa 1997). A trial court may grant a new trial “[w]hen the
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verdict is contrary to law or evidence.” Iowa R. Crim. P. 2.24(2)(b)(6). “Contrary
to the evidence” means “contrary to the weight of the evidence.”
Ellis, 578
N.W.2d at 659. Weight of the evidence refers to a determination by the trier of
fact “that a greater amount of credible evidence supports one side of an issue or
cause than the other.” Id. at 658 (quoting Tibbs v. Florida, 457 U.S. 31, 37-38,
102 S. Ct. 2211, 2216, 72 L. Ed. 2d 652, 658 (1982)). In ruling on the motion for
a new trial, the district court stated:
Well, it’s been sometime since the trial of the case. And I can’t tell
you in all candor that I have perfect recall, but to the extent that our
discussion here is focusing on the question on whether the jury
could have found – correctly found malice aforethought as one of
the elements as required for a conviction of second degree murder,
I would note, Mr. Moss has already noted some of these things, but
malice aforethought I note from the standard jury instructions can
be found from the acts and the conduct of the defendant, can be
found from the means used in doing the wrongful and injurious act,
requires only such deliberation that would make a person
appreciate and understand the nature of the act and its
consequences. It does not have to exist for any particular length of
time. That is all from stock jury instruction 700.7, which I believe
was given in this matter.
And I would also note that, as Mr. Moss has noted, that malice
aforethought may be inferred from the defendant’s use of a
dangerous weapon. I know that this is a hotly contested matter and
there was a lot of evidence on both sides, but I’m confident that
there was sufficient evidence on the record to support the jury’s
findings of all of the elements of murder in the second degree,
including but not limited to malice aforethought. And so the motion
for new trial and the motion in arrest of judgment will be overruled.
The State concedes that the matter should be remanded because the trial court
applied the wrong legal standard in ruling on Loeum’s motion for new trial. The
trial court should have applied a contrary-to-the-weight-of-the-evidence standard
instead of a sufficiency-of-the-evidence standard. See Ellis, 578 N.W.2d at 659.
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Accordingly, we reverse the trial court’s ruling on Loeum’s motion for new trial
and remand to the district court for a new ruling on that motion.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
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