STATE OF IOWA, Plaintiff-Appellee, vs. DESHONE T. OUTLAW, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 6-744 / 06-0063
Filed November 16, 2006
STATE OF IOWA,
Plaintiff-Appellee,
vs.
DESHONE T. OUTLAW,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Jon Fister,
Judge.
Deshone T. Outlaw appeals his conviction for willful injury, reckless use of
a firearm, intimidation with a dangerous weapon, and going armed with intent.
AFFIRMED.
Linda Del Gallo, State Appellate Defender, and David Adams, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Thomas Tauber, Assistant Attorney
General, Thomas J. Ferguson, County Attorney, and Joel Dalrymple, Assistant
County Attorney, for appellee.
Considered by Huitink, P.J., and Mahan and Zimmer, JJ.
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HUITINK, P.J.
I. Background Facts & Proceedings.
On August 23, 2005, the State charged Deshone T. Outlaw with willful
injury in violation of Iowa Code section 708.4 (2005), reckless use of a firearm in
violation of section 724.30(1), intimidation with a dangerous weapon in violation
of section 708.6, going armed with intent in violation of section 708.8, and
possession of a firearm by a felon in violation of section 724.26. The charges
were based on an altercation involving Outlaw and Chris Passenheim outside of
a Waterloo bar on August 12, 2005.
At trial the State’s witnesses testified Outlaw confronted Passenheim and
one or more passengers in Passenheim’s car.
Following a brief argument,
Passenheim got out of his car and fought with Outlaw. After they were separated
by several bystanders, Outlaw pulled a .357 revolver from his pants’ pocket and
fired twice at Passenheim, striking him once in the buttocks.
Passenheim
returned to his car. Outlaw followed and pointed the gun at Passenheim’s head.
Several more shots were fired as Passenheim attempted to take the gun from
Outlaw.
Outlaw moved for judgment of acquittal at the close of the State’s
evidence and again at the close of all of the evidence. Outlaw’s attorney argued:
Your Honor, we would make a – at the close of the State’s
evidence, at this point we would make a motion for judgment of
acquittal as to all counts. It is a sufficiency – lack of sufficiency of
the evidence argument in this particular case. Also, that the
defendant was justified in his actions and that was shown through
the evidence that was already presented to the jury. So in any
event what we’re arguing is, Your Honor, is, is that the witness’s
statements for the State, Mr. Passenheim, both Andre
[Passenheim] and Christopher [Passenheim], and Miss Wright
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[another passenger in Passenheim’s car] are not credible enough
given the fact that they talk about varying distances when the event
occurred, varying events as to Andre saying that they – testifying
that there had been an argument before; Mr. Chris Passenheim
saying that there had not been an argument before, prior to the
alleged shooting; that Miss Wright claims that the defendant, before
the shooting, went to the northeast corner of the parking lot and
then turned around and shot back at them; that Mr. Andre
Passenheim said that he was at least 10 feet away when he shot
Mr. Passenheim the first time; that Mr. Passenheim also stated that
– didn’t give a distance as to how far away he was when he was
shot except he said that he was running away and that the
defendant had been pulled away by other people prior to that and
then allegedly brandished this firearm out of his pocket and shot
him. And that is completely contrary to the physical evidence of Mr.
Marillo from the criminalist laboratory and the DCI saying that these
were close contact or weapon to clothes contact shooting in the
backside of Mr. Passenheim. To that extent it’s completely contrary
to the evidence, which is more consistent with the testimony of
Officer Lake as to what Mr. Outlaw explained to him when he came
in and voluntarily talked with him.
It’s a situation where you have the – And to that extent they
have a motivation to lie, they’re the only three people out of there
that – out of all the people in the parking lot that were there, the
State has presented no other evidence to that extent, that anyone
else saw this but the three of them. They have a motivation to lie
because it was their gun and they were covering this up and so
they created this fictitious story to cover their own criminal activity.
To that extent it’s a situation where also given the defendant’s
testimony through – or the testimony of Officer Lake as to the
defendant’s statements, he talked about how he was defending
himself and how he did not have a gun and that they produced the
weapon and that what we would ask the Court to do is to find – and
I realize it’s still in the light most favorable to the State – but we’d
ask the Court to look at the witnesses for the State’s testimony, the
DNA evidence that the State alleges also is tainted in that they
didn’t check the blood samples, the explanation as to how – what
the second part of the DNA in Exhibit N came from and what it was
raises enough of a question that it’s not credible enough evidence
to believe beyond a reasonable doubt in – given that they’re the
only three witnesses, the both criminalists’ reports can be refuted to
the point that they are not believable beyond a reasonable doubt,
we would ask the Court to enter judgment of acquittal in all counts.
The trial court denied Outlaw’s motion for judgment of acquittal and submitted all
counts charged to the jury. The jury returned guilty verdicts on all counts except
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possession of a firearm by a felon.
The trial court subsequently entered a
judgment of conviction and sentence in accordance with the verdicts.
On appeal, Outlaw argues:
I. Defendant-Appellant was denied the effective assistance of
counsel by counsel’s failure to specifically identify elements of the
various offenses for which the state’s evidence was insufficient.
II. Standard of Review.
We review the entire record de novo in order to assess both the
reasonableness of counsel’s conduct and any resulting prejudice. Ledezma v.
State, 626 N.W.2d 134, 142 (Iowa 2001). If an ineffective assistance of counsel
claim is raised on direct appeal, and the record is adequate to permit us to
assess trial counsel’s effectiveness, or the record is sufficient to determine
whether prejudice resulted from counsel's alleged unprofessional error, we may
decide the ineffectiveness claim on direct appeal. State v. Allen, 348 N.W.2d
243, 248 (Iowa 1984). A claim of ineffective assistance of trial counsel based on
the failure of counsel to raise a claim of insufficient evidence to support a
conviction is a matter that normally can be decided on direct appeal. See State
v. Scalise, 660 N.W.2d 58, 62 (Iowa 2003).
III. Merits.
Outlaw claims counsel was ineffective for failing to cite specific failures of
proof in the State’s evidence when arguing Outlaw’s motion for judgment of
acquittal. Outlaw’s claims are limited to his convictions for intimidation with a
dangerous weapon and going armed with intent.
A defendant receives
ineffective assistance of counsel when (1) trial counsel fails in an essential duty
and (2) prejudice results. Strickland v. Washington, 466 U.S. 668, 687, 104
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S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Outlaw bears the burden of
demonstrating ineffective assistance of counsel, and both prongs of the claim
must be established by a preponderance of the evidence before relief can be
granted. Ledezma, 626 N.W.2d at 142. To establish prejudice from an alleged
breach, Outlaw must prove “that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
“A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id. If Outlaw fails to meet his burden with respect to either prong, his
claim is without merit and will be dismissed. Id. at 697, 104 S. Ct. at 2069, 80
L. Ed. 2d at 699.
“A motion for judgment of acquittal is a means for challenging the
sufficiency of the evidence to sustain a conviction.” Allen, 304 N.W.2d at 206.
Resolving conflicts in the evidence, passing upon the credibility of witnesses, and
weighing the evidence are issues for the jury and not issues to be resolved by
motions for judgments of acquittal. State v. Hutchinson, ___ N.W.2d ___, ___
(Iowa 2006). We note that evidence is sufficient to withstand a motion for
judgment of acquittal when, viewing the evidence in the light most favorable to
the State, “there is substantial evidence in the record to support a finding of the
challenged element.” State v. Reynolds, 670 N.W.2d 405, 409 (Iowa 2003). In
this context, if the record fails to disclose substantial evidence supporting one or
both of the challenged convictions, counsel was ineffective, and Outlaw is
entitled to relief.
If, however, we find substantial evidence supporting both
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convictions, Outlaw is not entitled to relief. See State v. Truesdell, 679 N.W.2d
611, 616 (Iowa 2004).
To convict Outlaw of intimidation with a dangerous weapon under the
theory advanced at trial, the State had to prove he discharged or threatened to
discharge a dangerous weapon within an assembly of people. Iowa Code §
708.6.
Outlaw argues trial counsel breached an essential duty by failing to
challenge the sufficiency of the State’s proof of the “within an assembly of
people” element.
The phrase “within an assembly of people” means into or through two or
more persons at the same place. State v. Bush, 518 N.W.2d 778, 780 (Iowa
1994). The trial court instructed the jury to use this definition in determining
Outlaw’s guilt or innocence of this offense.
Contrary to Outlaw’s contention, we find substantial evidence from which
the jury could conclude he discharged a dangerous weapon into an assembly of
people. As noted earlier, there were several bystanders within ten feet of Outlaw
when he fired the gun, wounding Passenheim. The record also indicates that
others were in or around Passenheim’s vehicle when shots were fired during the
subsequent struggle for the gun.
Because the record included substantial
evidence supporting this element of intimidation with a dangerous weapon,
counsel did not breach an essential duty by failing to argue to the contrary. We
affirm on this issue.
To convict Outlaw of going armed with intent, the State had to prove
Outlaw went armed with a dangerous weapon with the intent to use without
justification the weapon against the person of another. Iowa Code § 708.8. The
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phrase “going armed” or “goes armed” means the conscious and deliberate
keeping of a dangerous weapon on or about the person, available for immediate
use. State v. Alexander, 322 N.W.2d 71, 72 (Iowa 1982); State v. Ray, 516
N.W.2d 863, 865 (Iowa 1994).
Outlaw argues counsel breached an essential duty by failing to challenge
the sufficiency of the evidence supporting his intended use of the weapon. The
gist of his argument is that “[t]he spur of the moment use of a weapon at hand
cannot support a finding that [Outlaw] went armed with intent to use that
weapon.” We disagree.
Contrary to Outlaw’s argument, we find the record contains substantial
evidence supporting all of the elements of going armed with intent. The evidence
indicates Outlaw was armed with a revolver when he approached Passenheim’s
vehicle. There is also evidence indicating he attempted to take the keys from
Passenheim’s vehicle, told the occupants of Passenheim’s vehicle they were not
going anywhere, and that he tried to open the passenger door where the
passenger with whom he argued was seated. Moreover, the record indicates
that following the first two shots, Outlaw followed Passenheim back to the vehicle
carrying the revolver, pointed the revolver at Passenheim’s head, and several
shots were fired during the ensuing struggle for the revolver. Because the record
included substantial evidence supporting all of the elements of going armed with
intent, trial counsel had no duty to argue to the contrary. We also affirm on this
issue.
AFFIRMED.
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