STATE OF IOWA, Plaintiff-Appellee, vs. AMBUS RAY DAVIS, III, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 7-057 / 06-0148
Filed February 28, 2007
STATE OF IOWA,
Plaintiff-Appellee,
vs.
AMBUS RAY DAVIS, III,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Gary D. McKenrick,
Judge.
Defendant appeals from the judgement and sentence entered upon his
conviction following a bench trial of first-degree murder, willful injury, and going
armed with intent. AFFIRMED.
Patricia Reynolds, Acting State Appellate Defender, and James G. Tomka,
Assistant Appellate Defender, for appellant.
Ambus Ray Davis, III, pro se.
Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney
General, William E. Davis, County Attorney, and Robert Cusack, Assistant
County Attorney, for appellee.
Considered by Sackett, C.J., and Huitink and Mahan, JJ.
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SACKETT, C.J.
Defendant, Ambus Davis, appeals from the judgement and sentence
entered upon his conviction following a bench trial of first-degree murder, in
violation of Iowa Code sections 707.1, 707.2(1), and 707.2(2) (2005); willful
injury, in violation of section 708.4(1); and going armed with intent, in violation of
section 708.8 in the shooting death of Jalon Thomas. He claims the district court
erred in denying (1) his motion for judgment of acquittal and (2) his motion for
new trial. We affirm.
Background. On May 15, 2005, Thomas was shot and killed outside a
home in Davenport, Iowa. The gun that shot Thomas was never found. The
State sought to prove its case with the following evidence, which the district court
found to be credible. The defendant and Thomas had argued over the telephone
the day of the shooting about Thomas’s missing dog.
Thomas thought the
defendant knew where the animal was. Just before the shooting, the defendant
called Thomas from a blue car parked in front of the area where the shooting
took place. Thomas came outside and talked to the defendant, who was in the
driver’s seat of the car. The two had a heated conversation. The defendant had
a revolver that was either on his lap or on the seat next to him, and he picked it
up and pointed it at Thomas. Thomas jumped back from the car. The defendant
got out of the car. Thomas ran, and the defendant fired three shots, one of which
hit Thomas and caused wounds that lead to Thomas’s death. The defendant
went into hiding and made a statement to a witness that he had shot somebody.
The defendant does not contend there was not evidence to support these
findings; rather, he appears to argue the witnesses were not credible and their
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testimony conflicted with their earlier statements and was contrary to the
testimony of other witnesses.
Motion for Judgement of Acquittal.
The defendant first contends the
district court erred by denying his motion for judgment of acquittal because there
was insufficient evidence to establish guilt beyond a reasonable doubt.
Specifically, he claims the testimony of the State’s witnesses creates nothing
more than speculation, suspicion, and conjecture.
The State contends the
district court did not err.
We review the district court’s denial of a motion for judgement of acquittal
based on sufficiency of the evidence. State v. McPhillips, 580 N.W.2d 748, 752
(Iowa 1998). We will uphold the denial of the motion “if there is substantial
evidence in the record to support the defendant’s convictions.” State v. Laffey,
600 N.W.2d 57, 59 (Iowa 1999) (citing McPhillips, 580 N.W2d at 752).
We
consider all evidence in the record. Id. We view the evidence in a light most
favorable to the verdict.
State v. Gay, 526 N.W.2d 294, 295 (Iowa 1995).
“Evidence is substantial if it would convince a rational factfinder that the
defendant is guilty beyond a reasonable doubt.” State v. Mitchell, 568 N.W.2d
493, 502 (Iowa 1997).
Substantial evidence may exist to uphold a verdict even if substantial
evidence to the contrary also exists. State v. Frake, 450 N.W.2d 817, 818-19
(Iowa 1990). There was substantial evidence, though contradicted, to support
the verdict.
Motion for New Trial.
The defendant also contends the district court
abused its discretion in denying his motion for new trial based on the weight of
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the evidence. The defendant contends the State’s witnesses were not credible.
He also contends the State failed to prove malice aforethought and
premeditation. The State asserts the district court fulfilled its duty in weighing of
the credibility of the witnesses.
We review the district court’s denial of a motion for new trial for abuse of
discretion. State v. Ellis, 578 N.W.2d 655, 659 (Iowa 1998). On a weight of the
evidence claim regarding a new trial, the district court may weigh the evidence
and consider the credibility of witnesses. Id. at 658. “[A]ppellate review is limited
to a review of the exercise of discretion . . . not the underlying question of
whether the verdict is against the weight of the evidence.” State v. Reeves, 670
N.W.2d 199, 203 (Iowa 2003) (citations omitted).
In denying the motion for new trial the district court stated it considered the
credibility of the witnesses and found, and continued to find, the greater weight of
the credible evidence supported the verdicts, and the State proved beyond a
reasonable doubt all the elements of each of the offenses charged. We affirm on
this issue.
In his pro se brief defendant claims there is no evidence to prove either
malice aforethought or deliberation or premeditation.
Malice aforethought is a fixed purpose or design to do some physical harm
to another which exists prior to the act being committed. See State v Artzer, 609
N.W.2d 526, 529 (Iowa 2000). It does not need to exist for any specific time
before the act occurs, and it can be inferred from the use of a weapon. Id. at
530. Furthermore, the use of a deadly weapon, coupled with an opportunity to
deliberate, even for a short time, may give rise to an inference of deliberation and
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premeditation. State v. Khouri, 503 N.W.2d 393, 395 (Iowa 1993). There is no
basis to the defendant’s argument on this issue.
AFFIRMED.
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