Opinion
No. 3-013 / 02-0086.
Filed April 30, 2003.
Appeal from the Iowa District Court for Scott County, GARY D. McKENRICK, Judge.
Antonio Eugene Brown appeals his convictions, following jury trial, for attempt to commit murder, going armed with intent, two counts of simple misdemeanor assault, criminal gang participation, and willful injury causing bodily injury. REVERSED AND REMANDED.
Murray Bell of Murray W. Bell, P.C., Davenport, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, and William Davis, County Attorney, for appellee.
Heard by VOGEL, P.J., and MILLER and EISENHAUER, JJ.
Antonio Eugene Brown appeals his convictions, following jury trial, for attempt to commit murder, going armed with intent, two counts of simple misdemeanor assault, criminal gang participation, and willful injury causing bodily injury. He contends (1) the trial court erred in denying his motion to sever the criminal gang participation charge for separate trial, (2) the court erred in denying his motion for mistrial, and (3) there was insufficient evidence to find the specific intent required for attempt to commit murder and willful injury. We reverse and remand.
I. BACKGROUND FACTS AND PROCEEDINGS
The record before us reveals the following facts. On the night of June 28, 2001 Jesus Ramirez, Ruben Paralez, and Michael Vela were together at the Thirsty Beaver bar. On the same night Nathan Jurski, Heath Woods, Keith Gibson and the defendant, Antonio Brown, were also together at or near the Thirsty Beaver. As the two groups were leaving the bar Vela and Woods began arguing and Brown broke them up. Approximately a block and a half from the Thirsty Beaver Brown and Vela began arguing and pushing each other. Vela fell during the altercation and Ramirez slapped Brown across the face. Brown did not have an opportunity to respond to Ramirez' slap because the security officers were approaching the scene and both groups fled.
After the altercation, Jurski, Woods, and Brown went to Jurski's apartment in the early morning hours of June 29, 2001 and picked up two guns. Both guns were semi-automatic rifles, one with an eight round clip and the other with a twenty-six round clip. Jurski, Brown and Woods then got into a red, two-door Beretta and went looking for Ramirez, Vela and Peralez. Woods was driving with Brown in the front passenger seat and Jurski directly behind Brown. They found Ramirez, Peralez and Vela at the home of Arturo Jiminez in Davenport, Iowa, where they were putting beer in the trunk of their car and getting in the car.
Jurski testified that Woods pulled into an alley and Brown got out of the vehicle and walked around the car toward Ramirez. He further testified that Brown fired half of this twenty-six round clip in the direction of Ramirez and Vela and whoever else was with them. Jurski then put his hand out the car window and also started shooting in the same general direction, firing eight times. Ramirez, Peralez and Vela all crouched down by the car. Ramirez was shot in the shoulder and back. The car he was standing near was also shot during the incident.
After the shooting Jurski, Brown, and Woods hid the guns, first in a garden and then under some garbage cans at Jurski's father's house. They then went to Kenny Stark's apartment where they washed up and discussed the situation. Eventually the three ended up back at Brown's house where they were arrested. Jurski entered into a plea agreement with the State to testify against Woods and Brown. He testified that Brown got rid of the red Beretta in a field and that Jurski's father got rid of the guns for them. As part of the plea agreement Jurski agreed to plead guilty to criminal gang participation and testify against Brown and Woods in order to get out of jail and so his father would not be charged for disposing of the guns.
Brown was charged by trial information on August 10, 2001 with attempt to commit murder in violation of Iowa Code section 707.11 (2001) (Count I), going armed with intent in violation of Iowa Code section 708.8 (Count II), two counts of assault with intent to inflict serious injury in violation of sections 708.2(1) and 708.1 (Counts III and IV), and criminal gang participation in violation of Iowa Code section 723A.2 (Count V). Brown was charged in a joint trial information that contained similar charges against Woods and Jurski. An amended trial information later added a charge against Brown of willful injury in violation of Iowa Code section 708.4.
Brown filed a motion for a hearing on issues related to criminal gang participation evidence, and shortly thereafter amended the motion to seek severance of the criminal gang participation charge. Brown argued the evidence relating to criminal gang participation was not relevant to the other counts against him and its prejudicial effect would unfairly influence the jury in its deliberation on the other five charges against him. The court denied the motion to sever. The jury found Brown guilty of attempt to commit murder (Count I), going armed with intent (Count II), two counts of simple misdemeanor assault (Counts III and IV), criminal gang participation (Count V) and willful injury causing bodily injury (Count XVI). Brown filed a motion for new trial and motion in arrest of judgment. The court denied the motions and sentenced Brown to prison terms of twenty-five years on Count I, five years on Count II, thirty days each on Counts III and IV, five years on Count V, and five years on Count XVI. The court ordered all of the sentences to be served concurrently.
Brown appeals from his convictions alleging (1) the trial court erred in denying his motion to sever the criminal gang participation count from the other counts for separate trial, (2) the court erred in denying his motion for new trial, and (3) there was insufficient evidence as a matter of law to find him guilty of the specific intent required for attempt to commit murder and willful injury.
II. MERITS A. Motion for Mistrial.
Initially we note that Brown's issue statement in his appellate brief alleges the trial court erred in denying his motion for new trial, but his citation to the record to show how error was preserved, his subheading in this portion of the brief, and the substance of his argument all concern the court's failure to grant his motion for mistrial. The State suggests the defendant is in fact alleging the court erred in denying his motion for mistrial and focuses its argument on the substantive claim made in the motion for mistrial. The State's view appears to be consistent with and confirmed by the fact the defendant's motion for new trial did not complain about the denial of a mistrial, but rather claimed only that (1) the trial court erred in denying severance, (2) the verdict was contrary to the evidence, and (3) the denial of severance resulted in denial of a fair and impartial trial. Further, the defendant in his reply brief does not in any manner suggest the State's view of this issue is incorrect. Accordingly, we will treat this issue as claiming the court erred in denying Brown's motion for mistrial and address it as such.
A trial court has broad discretion in ruling on a motion for mistrial. State v. Brown, 397 N.W.2d 689, 699 (Iowa 1986); State v. Waters, 515 N.W.2d 562, 567 (Iowa Ct.App. 1994). We review the trial court's denial of a motion for mistrial on an abuse of discretion standard. State v. Delaney, 526 N.W.2d 170, 177 (Iowa Ct.App. 1994).
Jurski testified at trial that he and Brown were both members of the gang the Imperial Gangsters. He stated that the Imperial Gangsters were "a bunch of neighborhood friends that drink and party together and use drugs and sell drugs." The prosecutor asked, "What did that gang do besides party and do drugs and sell drugs?" Jurski answered "Crimes." When the prosecutor then asked "What kind of crimes?" Brown objected to the testimony. A discussion on the objection was held outside the presence of the jury and a motion for mistrial was subsequently made by Woods. Brown joined in the motion. The motion for mistrial argued, in part, that Jurski's testimony relating to the defendants' drug dealing was a " Liggins violation." The court overruled the motion for mistrial determining that "the evidence that has been presented thus far is relevant and admissible to the offense of criminal gang participation and criminal gang participation only."
Presumably the " Liggins violation" referred to in the motion for mistrial is based on State v. Liggins, 524 N.W.2d 181 (Iowa 1994). Liggins was a first-degree murder case in whichour supreme court found the trial court abused its discretion in admitting evidence of the defendant's cocaine delivery and distribution. Liggins, 524 N.W.2d at 188. The court in Liggins held that such evidence was not "an inseparable part of the whole deed" and was inherently prejudicial because it "appealed to the jury's instinct to punish drug dealers." Id. at 188-89.
As set forth above, prior to trial Brown had filed a motion to sever the criminal gang participation count for separate trial arguing the evidence of his membership in a gang would have an unfairly prejudicial effect on the jury's deliberations of the other five counts against him. The court denied the motion to sever, finding that any potential unfair prejudice from the gang participation evidence could be eliminated by proper admonishment of the jury in conjunction with the admission of such evidence.
Because of the inherently prejudicial nature of evidence relating to gang membership and activity, see State v. Nance, 533 N.W.2d 557, 562 (Iowa 1995) ("Like evidence of cocaine delivery and distribution, evidence of gang membership and activity is inherently prejudicial. It appeals to the jury's instinct to punish gang members."), we have substantial doubt concerning whether the district court was correct in denying Brown's motion to sever. We also doubt that the criminal gang participation charge "[a]rose from the same transaction or occurrence" as the other five charges, one of two alternative requirements for joinder of multiple offenses under Iowa Rule of Criminal Procedure 2.6(1). See State v. Smith, 576 N.W.2d 634, 636 (Iowa Ct.App. 1998) (overruled on other grounds by State v. Owens, 635 N.W.2d 478, 484 (Iowa 2001)) ("If either crime can be proven without reference to the other, this test is not met . . . ."). Further, it can reasonably be argued that any criminal gang participation and the other offenses did not "constitut[e] parts of a common scheme or plan," the second alternative requirement for joinder under rules 2.6(1). See Smith, 576 N.W.2d at 636 ("The test applied in making this determination is the requirement that all offenses charged must be products of a single continuing motive.") (quoting State v. Lam, 391 N.W.2d 245, 249 (Iowa 1986)). However, we need not decide these issues because by the time the motion for mistrial was made the jury had not only been presented with the inherently prejudicial evidence of Brown's gang membership, it had also been presented with the inherently prejudicial evidence of the gang's, and by inference Brown's, participation in dealing drugs, wholly unconnected in time or place to any of the charges other than the criminal gang participation charge.
We conclude the trial court abused its discretion in denying Brown's motion for mistrial based on the unfairly and inherently prejudicial effect of the combined evidence of his alleged gang membership and participation in drug dealing activities. Such evidence appealed to the jury's instinct to punish Brown as a gang member, Nance, 533 N.W.2d at 562, and drug dealer, Liggins, 524 N.W.2d at 188-89. Any probative value that evidence of gang membership or drug dealing might have on the other five charges was substantially outweighed by the danger of unfair prejudice. See Nance, 533 N.W.2d at 562; s ee also Smith, 576 N.W.2d at 637 (stating unfair prejudice can mean an undue tendency to suggest decision on an improper basis, commonly an emotional one). The danger of an unfair and inherently prejudicial effect on the jury's deliberations could not be undone by an admonishment by the trial court.
We therefore reverse Brown's convictions and remand the case for new trial. In order to avoid unfair prejudice from recurring at retrial the criminal gang participation charge should be severed from the other five charges.
B. Sufficiency of the Evidence.
Our scope of review and many of the standards of review that apply in sufficiency-of-the-evidence challenges are set forth in State v. Kirchner, 600 N.W.2d 330, 333-34 (Iowa Ct.App. 1999) and need not be repeated here. The following additional standards are applicable as well. We give consideration to all of the evidence, not just that supporting the verdict. State v. Schmidt, 588 N.W .2d 416, 418 (Iowa 1998). Inherent in our standard of review of jury verdicts in criminal cases is the recognition that the jury was free to reject certain evidence, and credit other evidence. State v. Anderson, 517 N.W.2d 208, 211 (Iowa 1994). The credibility of witnesses, in particular, is for the jury. A jury is free to believe or disbelieve any testimony as it chooses and to give as much weight to the evidence as, in its judgment, such evidence should receive. State v. Liggins, 557 N.W.2d 263, 269 (Iowa 1996); State v. Thornton, 498 N.W.2d 670, 673 (Iowa 1993). The very function of the jury is to sort out the evidence and place credibility where it belongs. Thornton, 498 N.W.2d at 673.
Brown asserts there is no evidence in the record indicating he, or anyone he aided and abetted, had a specific intent to cause a serious injury or the death of another person and thus there is insufficient evidence to find him guilty of the attempted murder and willful injury charges. See Iowa Code §§ 708.4, 707.11 (providing specific intent required for each of these crimes). More specifically, he contends it is not reasonable to infer from Jurski's testimony that the fact Brown and his companions were not going to let Vela and his companions "get away with" slapping Brown meant they were going to attempt to kill or seriously injury them. Brown argues that the evidence only proves an intent to "scare and intimidate," rather than kill or seriously injure, Vela and Ramirez. He further asserts Ramirez' injuries and the bullet holes in the trunk of the car were merely accidental hits from random gunfire apparently intended only to scare and intimidate Vela and Ramirez.
Specific intent is seldom capable of direct proof. State v. Walker, 574 N.W.2d 280, 289 (Iowa 1998). Intent, being a mental condition, must ordinarily be inferred from external circumstances. State v. Clarke, 475 N.W.2d 193, 197 (Iowa 1991). The State appears to correctly acknowledge that the only evidence of intent to kill or seriously injure in this record is circumstantial. It is well established, however, that "direct and circumstantial evidence are equally probative." Iowa R.App.P. 6.14(6)( p); State v. Knox, 536 N.W.2d 735, 741 (Iowa 1995). Circumstantial evidence is particularly valuable when proving a mental state like intent which is seldom susceptible to proof by direct evidence. Clarke, 475 N.W.2d at 197. Circumstantial evidence may be considered by the jury in determining whether a motive to kill may be inferred. See State v. Freie, 335 N.W.2d 169, 172 (Iowa 1983). Inferences from circumstantial evidence are a staple of the adversarial fact-finding system. State v. Schmidt, 588 N.W.2d 416, 418 (Iowa 1998).
Whether Brown (or anyone he was aiding and abetting) fired shots in an attempt to kill or seriously injure Ramirez or Vela, or whether they were only trying to scare or intimidate them are questions best left for the jury to decide. See Clarke, 475 N.W.2d at 197. Although there is no direct evidence that Brown had the specific intent to kill or seriously injure another person, there is considerable circumstantial evidence from which a reasonable juror could find such intent.
The victim, Ramirez, testified at trial that he saw Brown in front of him shooting at him. Arturo Jimenez (at whose house the shooting took place) testified that he saw a big guy, which is consistent with a description of Brown, get out of the passenger side of a red car and start shooting at somebody. Jurski also testified that both he and Brown were shooting in the direction of Vela and Ramirez with automatic rifles, and that he shot eight times while Brown shot approximately thirteen rounds in the same direction. Finally, Ramirez was in fact shot twice and bullet holes were found in the car Vela and Ramirez were near when the shooting occurred.
Thus, two or more witnesses testified at trial that they saw Brown, or someone fitting his description, shooting a gun at another individual. Ramirez was in fact shot twice during this incident. The fact Brown and Jurski used two automatic rifles and shot at least eight rounds toward the victim, and in fact hit the victim with two shots, more than supports an inference that one or both of them had the specific intent to seriously injure and kill. See State v. Wilkens, 346 N.W.2d 16, 20 (Iowa 1984) (holding when person intentionally uses a deadly weapon in killing victim jury may infer specific intent to kill); State v. Phams, 342 N.W.2d 792, 797 (Iowa 1983) (use of deadly weapon accompanied by opportunity to deliberate is evidence of intent to kill). Based on all of the facts and circumstances in the record, we conclude the jury could reasonably infer both that Brown intended to seriously injure another person and that he intended to cause the death of another person.
III. MOTION TO STRIKE
The State filed a motion to strike Brown's reply brief on appeal. The motion is predicated on the fact the second division of the reply brief presented a new issue not raised in his brief on appeal. This division was apparently added specifically at Brown's request, and argues there was insufficient evidence to convict Brown on the criminal gang participation charge. An issue cannot be asserted for the first time in a reply brief. State v. Walker, 574 N.W.2d 280, 288 (Iowa 1998); Young v. Gregg, 480 N.W.2d 75, 78 (Iowa 1992); Polk County v. Davis, 525 N.W.2d 434, 435 (Iowa Ct.App. 1994). Thus, Brown's argument with regard to the sufficiency of the evidence on the criminal gang participation charge comes too late for our consideration. Walker, 574 N.W.2d at 288. We will not consider new issues raised in a reply brief and grant the State's motion to strike to the extent new issues are contained therein. Davis, 525 N.W.2d at 435.
IV. CONCLUSION
For all of the reasons set forth above, we conclude the district court abused its discretion in denying Brown's motion for mistrial. The evidence of Brown's gang membership and participation in drug dealing had an unfairly and inherently prejudicial effect on the jury's deliberations. We therefore must reverse the convictions and remand for new trial. In order to avoid such unfair prejudice on retrial the criminal gang participation charge should be severed for trial separately from the other five counts. We further conclude there was sufficient evidence of the specific intent required for attempt to commit murder and for willful injury. The State's motion to strike the second division of Brown's reply brief is granted.