Opinion
21-1928
03-06-2024
STATE OF IOWA, Plaintiff-Appellee, v. ODOL LUAL OTHOW, Defendant-Appellant
Nathan A. Mundy of Mundy Law Office, P.C., Des Moines, for appellant. Brenna Bird, Attorney General, and Louis S. Sloven, Assistant Attorney General, for appellee.
Appeal from the Iowa District Court for Polk County, Scott J. Beattie, Judge.
The defendant appeals his convictions for attempted murder, intimidation with a dangerous weapon, and willful injury causing serious injury. AFFIRMED.
Nathan A. Mundy of Mundy Law Office, P.C., Des Moines, for appellant.
Brenna Bird, Attorney General, and Louis S. Sloven, Assistant Attorney General, for appellee.
Considered by Bower, C.J., and Tabor and Greer, JJ.
GREER, JUDGE
Odol Othow appeals his convictions for attempted murder, intimidation with a dangerous weapon, and willful injury causing serious injury. On appeal, he argues that the district court erred in failing to sever his trial from two co-defendants (Thon Bol and Owo Bol) and in admitting recorded statements by two other codefendants (Reath Yak and Caine Dominguez-Schiesl) whose trials were severed. He also claims there was not sufficient evidence to support the verdicts. We affirm.
I. Background Facts and Prior Proceedings.
This case is the latest in a series related to a late-night drive-by shooting of a Des Moines home in March 2021. We described the underlying facts in State v. Bol:
See State v. Yak, No. 21-1185, 2024 WL 111651, at *13 (Iowa Ct. App. Jan. 10, 2024) (affirming Reath Yak's convictions); State v. Bol, No. 22-0185, 2023 WL 7391657, at *8 (Iowa Ct. App. Nov. 8, 2023) (affirming Owo Bol's convictions and sentences); State v. Dominguez-Schiesl, No. 21-1402, 2023 WL 5949177, at *11 (Iowa Ct. App. Sept. 13, 2023) (affirming Caine Dominguez-Schiesl's convictions).
N.M., who was sixteen years old, lived with her mother, sister, eight-year-old brother, and two-year-old nephew, D.M., at a home in Des Moines. On March 1, 2021, she planned and held a surprise birthday party for her sister. By 10:00 p.m., the party had died down. N.M. was left at home with her brother and nephew. By 10:30 p.m., her brother was asleep in his room, and N.M. sat with her nephew while he watched cartoons in the living room. After N.M. decided it was time for both her and her nephew to retire for the evening, she went outside to retrieve her cell phone charger from her mother's vehicle parked in the driveway. D.M. remained on the couch, watching cartoons.
While N.M. was in the driveway, a vehicle stopped in front of the house. N.M. saw at least four people in the car, one who was wearing a black ski mask. N.M. inquired, "Who are you?" One of the occupants responded, "You know who this is, motherfucker," and shots rang out. Twenty to thirty shots were fired from the vehicle. N.M. dove into her mother's car, fearing that her brother or nephew might be shot if she ran back into the home. The car eventually
pulled away and N.M. ran to the front door of her home to make sure her brother and nephew were all right. But the door was jammed, and N.M. could not get in. She ran to a neighbor's house to call the police, but no one came to the door. She went to another neighbor's house who let her use a cell phone. N.M. then ran home. By that time, her brother had opened the door. N.M. found her nephew lying in the hallway, crying softly. He had been shot in the back of his head. N.M. managed to call 911.2023 WL 7391657, at *1.
Law enforcement arrived at the home and began canvassing the neighborhood. After reviewing security footage taken from a neighbor's porch camera, they identified a dark-colored Nissan Rogue SUV that was driving around the neighborhood at the time of the shooting. N.M. described the shooters as looking like "Africans" because she also was African and described knowing people who were from Africa with darker skin. Law enforcement recovered twenty bullets from the scene, both in the side of the car and the house. Police put out an alert for any vehicles matching the description of a dark Nissan SUV.
Not long after the shooting, in the early hours of March 2, police received a report of a Nissan Rogue that crashed against the center guard wire along Interstate 80 near the Waukee exit. Deputy Nicholas Merwald of the Dallas County Sheriff's Office responded to the crash scene; as he approached the vehicle, his body camera showed snow on the ground and the airbags in the vehicle deployed and still inflated. Due to the cold, the condensation on the inside of the vehicle had begun to freeze, and Deputy Merwald concluded that it had been stopped for at least thirty minutes. Thon Bol was in the driver's seat, Yak was in the front passenger seat, and Owo Bol, Dominguez-Schiesl, and Othow were in the back seat of the crashed vehicle. Othow was in the seat directly behind the front passenger seat. Thon Bol told Deputy Merwald that he had swerved because he was trying to avoid a deer. Although all five had cell phones on them, none had called 911.
While asking Thon Bol to step out of the vehicle, law enforcement saw spent nine-millimeter shell casings on the floor of the vehicle and inside a water bottle; they also saw a black ski mask. After searching the vehicle, law enforcement found a firearm under the driver's seat and discovered Owo Bol had two other firearms in the waistband of his pants. In total, law enforcement counted seventeen spent shell casings and concluded they were consistent with having been fired by the three firearms recovered from inside the vehicle. On top of that, law enforcement also discovered two extended ammunition magazines, one on the backseat floor and one under the driver's seat. The magazines were integral to some of the recovered firearms. Iowa State Trooper Kyle Ratzesberger placed Thon Bol in the backseat of his patrol vehicle; while he was waiting there, Thon Bol made a phone call to his sister that was captured on dash camera. In the dash camera video, Thon Bol said "we do got macs in the car." After his sister asked, "Whose mac is it?" Thon Bol responded, "it's three of 'em." His sister then asked, "Who is all in the whip?" and Thon Bol lists all four other passengers by name.
Des Moines police officers and more state troopers arrived to assist, and law enforcement brought all five occupants of the vehicle to a Des Moines police station for interviews. The Des Moines Police Department led the investigation. During his interview with Des Moines Police Detectives Jeffrey Shannon and Lucas Harden, Dominguez-Schiesl said he did not know the names of the other passengers in the vehicle; he claimed he caught a ride with them because they were all going the same direction-to Des Moines. He also said, "I didn't even know nobody had no gun." The detectives also interviewed Yak and, during his interview, he said that the Nissan Rogue belonged to his parents and that he came to Des Moines to see family. As the detectives were leaving the room, Detective Shannon accused Yak of driving the group to Des Moines where they "shot a two-year-old boy." Yak claimed: "I never even drove." Detective Shannon repeated the accusation, telling Yak the two-year-old was "probably not going to make it." Yak responded: "So that's who came to the door?" Shannon followed up: "What's that?" Yak rephrased: "Who came to the door?" Shannon asked: "What door?" Yak replied: "Never mind."
But Othow was not communicative in his interview as he identified himself with a fictitious name and refused to answer any questions. Next, in Owo Bol's interview, he told the detectives that the group was in Des Moines to visit their "auntie" and a friend who plays basketball in the Des Moines area. A video was recovered from Owo Bol's phone showing the car occupants brandishing the firearms that were recovered from Bol's waistband. Owo Bol admitted that he had two guns on him and identified them by make; however, he claimed that the guns did not have any rounds in them and no one had fired any shots that night.
D.M. was rushed to the hospital in critical condition and underwent surgery. According to an expert testifying at the trial, after testing the spent bullet that surgeons removed from D.M.'s head, the experts "were able to confirm that [one of the weapons found on Owo Bol] was the weapon that resulted the injury." The State charged Othow with two counts of attempted murder, class "B" felonies, in violation of Iowa Code section 707.11(1) (2021); intimidation with a dangerous weapon with intent, a class "C" felony, in violation of section 708.6; and willful injury causing serious injury, a class "C" felony, in violation of section 708.4(1). The State brought the same charges against Thon Bol, Yak, Owo Bol, and Dominguez-Schiesl in a joint trial information.
While at a pre-trial conference, a member of law enforcement overheard Owo Bol say to Yak, "You better not fucking fold, don't fucking say shit." Prior to trial, in May 2021, Othow moved for the first time to sever his trial from the other co-defendants focusing on Owo Bol's courtroom statements. The district court denied the motion, finding that the statements were relevant to the existence and maintenance of a conspiracy and that its relevance was not substantially outweighed by the danger of unfair prejudice.
At the end of May, the case moved to trial with all five defendants together. But after opening statements, four of the five-everyone but Yak-moved to sever their trials. The district court agreed and only Yak went forward with his trial as the jury was already impaneled and he agreed to proceed.
During the opening statements, Dominguez-Schiesl made an assertion that the four other defendants were members of the Sudanese Chilow tribes but that he was not Sudanese and he was not a member of any gang or tribe; the district court found that this defense was antagonistic to the point of depriving the others of a fair trial if tried jointly. The State later agreed with this reasoning and conceded that Dominguez-Schiesl would be tried separately from the other co-defendants.
Yak had taken the position in opening that it was likely the State could prove that all of the defendants were in the vehicle at the time of the shooting and thus, the district court found this I was "just along for the ride" defense to be antagonistic to the other co-defendants. See Yak, 2024 WL 111651, at *4.
In June, the State moved to reconsolidate the trials of the four remaining defendants. At first, the district court denied the State's consolidation motion. Then, the State filed a motion to reconsider, conceding that Dominguez-Schiesl should be tried separately, but arguing that Othow, Thon Bol, and Owo Bol's general denial defenses were not antagonistic to the point of depriving any of those three of a fair trial if tried together. Othow argued the defense theories of the three defendants conflicted, as he might implicate the two other defendants and, thus, he would be prejudiced in a joint trial. After a hearing, the district court granted the motion to reconsider. The district court ultimately agreed with the State that the defenses of Othow, Thon Bol, and Owo Bol were not so antagonistic to deprive them of a fair trial. In July, Owo Bol and Thon Bol were then tried jointly with Othow. After the completion of jury selection in their joint trial, Othow renewed his motion to sever, and the district court again denied the motion.
N.M.; B.M., N.M.'s older sister; and their neighbor testified at trial. The neighbor described hearing thirty gun shots and then seeing a dark-colored SUV drive by. The neurosurgeon that treated D.M. also testified and described the surgery he performed to remove the bullet from D.M.'s scalp. He also stated that it would be impossible to predict D.M.'s permanent injury but that the seizures and paralysis would likely be lifelong and D.M. most likely would have trouble speaking. A crime scene investigator from the Des Moines Police Department testified that based on the type of bullets and spent casings recovered from the scene and the Nissan Rogue SUV, it was likely that three firearms were used in the drive-by shooting and that those recovered from the vehicle were the firearms used. Additionally, he opined that the bullet removed from D.M.'s scalp came from one firearm recovered from the vehicle. A court services staff member testified that Owo Bol said to Yak, "You better not fucking fold, don't fucking say shit." After the court allowed this testimony, Othow renewed his motion to sever his trial, which the district court denied.
Lastly, Detective Shannon testified that based on his training and experience, he believed that the security footage with audio of several gun shots demonstrated multiple firearms being discharged. DNA testing of the firearms revealed DNA from at least four people; DNA testing of the black ski mask revealed DNA from at least three. Detective Shannon also reiterated the crime scene investigator's conclusion that the guns recovered from the Nissan Rogue SUV were used in the shooting. In addition, he concluded based on the number of shots fired from one of the firearms that extended magazines must have been used. After Detective Shannon's testimony, Othow renewed his objection to admission of the recorded interviews of Dominguez-Schiesl and Yak; the court overruled the objections, finding that it had already determined the State met the "requirements of preponderance of the evidence that there was a conspiracy for purposes of [Iowa Rule of Evidence] 5.801" and the statements were non-hearsay because they were not offered for the truth of the matter asserted but to show the evasiveness or dishonesty of the speakers.
In addition to testimony, the district court admitted several exhibits during the State's case-in-chief. First, it admitted a video taken by Owo Bol from the backseat of the Nissan Rogue SUV and saved to his cell phone. In the video, Owo Bol points a firearm at the camera and then turns the phone to show Othow holding an extended magazine that goes with the gun. He also shows Dominguez-Schiesl, who is holding a second firearm. Because Dominguez-Schiesl is sitting on the far side of the seat, he reaches across Othow to point the gun at the camera. The district court also admitted recordings of the phone call between Thon Bol and his sister and the law enforcement interviews of Owo Bol, Yak, and Dominguez-Schiesl. A translator testified that when Thon Bol said they had a "mac" in the car, he was using the Nuer word for "gun" and that the phrase "Whose mac is it?" meant "Whose gun is it?"
Nuer is a Sudanese language.
At the close of the State's evidence, Othow moved for judgment of acquittal, and the district court denied the motion. Unlike his co-defendants, Othow testified at the trial. He said that in March 2021 he was in the process of moving in with Owo Bol and Thon Bol in Sioux City. On March 1, he went to the gun range outside Sioux City with Owo Bol. He then went to Des Moines with Owo Bol, Thon Bol, Dominguez-Schiesl, and Yak. However, according to Othow, he got out of the vehicle to smoke marijuana with a girl walking by in white pants and stayed outside with her for forty-five minutes. After he "grew agitated with her consistent nagging and asking questions," Othow saw the Nissan Rogue coming back down the street and he got back in the vehicle. He testified that he was sitting in the middle seat in the back and that he had switched seats from the back passenger seat to the middle. Othow also testified that he had no knowledge of any guns or shell casings in the car, but after questioning by the State agreed that Owo Bol had a gun permit and he saw him with a gun. He also admitted that in Owo Bol's Snapchat video, Owo Bol and Dominguez-Schiesl were holding guns and he was sitting in between them. At the same time, he insisted that he did not pull a trigger and did not see anyone pull a trigger.
After the defendants rested, Othow renewed his motions for judgment of acquittal and a directed verdict. The district court denied the motions. The jury found Othow guilty of one count of attempted murder; the lesser-included charge of intimidation with a dangerous weapon, a class "D" felony; and willful injury causing serious injury in August. It found him not guilty of the second count of attempted murder. Othow filed a motion for a new trial in September, arguing that the verdict was contrary to the weight of the evidence, his Confrontation Clause rights were violated, and the verdicts were inconsistent. The district court denied the motion in November. In December, the district court sentenced Othow to twenty-five years on the attempted-murder conviction, five years on the intimidation-with-a-dangerous-weapon conviction, and ten years on the willful-injury-causing-serious-injury conviction. The court ordered Othow to serve the sentence for attempted murder consecutively to the sentences for intimidation with a dangerous weapon and willful injury causing serious injury, which would run concurrently to each other, for a total term of incarceration of thirty-five years. Othow appeals.
Although the State originally pursued a habitual offender enhancement pursuant to Iowa Code sections 902.8 and 902.9(1)(c) for the charges of intimidation with a dangerous weapon and willful injury causing serious injury, it abandoned those enhancements at sentencing.
This argument was pursuant to Bruton v. United States, 391 U.S. 123 (1968). See also State v. Liggins, 557 N.W.2d 263, 268 (Iowa 1996).
II. Standards of Review.
A district court's decision to deny severance is reviewed for abuse of discretion. State v. Belieu, 288 N.W.2d 895, 900 (Iowa 1980). "To establish an abuse of discretion, the defendant must show sufficient prejudice to constitute denial of a fair trial." Id.
We generally review evidentiary rulings for abuse of discretion. State v. Buelow, 951 N.W.2d 879, 884 (Iowa 2020). "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.'" State v. Rodriquez, 636 N.W.2d 234, 239 (Iowa 2001) (citation omitted). "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." Id. (citation omitted). However, we review rulings on the admissibility of hearsay for correction of errors at law. Buelow, 951 N.W.2d at 884.
We review the sufficiency of the evidence supporting convictions for correction of errors at law. State v. Crawford, 974 N.W.2d 510, 516 (Iowa 2022). We affirm when the verdict is supported by substantial evidence, meaning "the quantum and quality of evidence is sufficient to 'convince a rational fact finder that the defendant is guilty beyond a reasonable doubt.'" State v. Banes, 910 N.W.2d 634, 637 (Iowa Ct. App. 2018) (citation omitted). In conducting our review, we consider the evidence in the light most favorable to the verdict, including all reasonable inferences that may be fairly drawn from the evidence. Id.
III. Analysis.
Othow makes three arguments on appeal: (1) the district court abused its discretion in failing to grant him a separate trial from Owo Bol and Thon Bol, (2) the district court erred in admitting recorded statements from Dominguez-Schiesl and Yak, and (3) there was not sufficient evidence to support the convictions.
A. Separate Trial.
First, Othow claims that the district court should have granted him a separate trial from Owo Bol and Thon Bol. "When an indictment or information jointly charges two or more defendants, those defendants may be tried jointly if in the discretion of the court a joint trial will not result in prejudice to one of the parties." Iowa R. Crim. P. 2.6(4)(b). Severance is permissible if the court finds any of the following factors:
A panel of this court also addressed this issue in Bol, 2023 WL 7391657, at *4. In that appeal, Bol argued he and Othow had conflicting defense theories, but because Othow's theme was he "was not there" and did not point the finger at Bol, we said the defenses were "at most, 'merely antagonistic.'" Id. at *5.
(1) if admission of evidence in a joint trial would have been inadmissible and prejudicial if a defendant was tried alone, (2) if a joint trial prevents one defendant from presenting exculpatory testimony of a codefendant, (3) if consolidation will produce a trial of such complexity and length that the jury will be unable to effectively compartmentalize the evidence against each defendant, [or] (4) if defenses presented by different defendants conflict to the point of being irreconcilable and mutually exclusive.State v. Williams, 525 N.W.2d 847, 849 (Iowa 1994). However, "[s]everance is not required simply because a defendant might have a better chance of acquittal in a separate trial." State v. Pena, No. 12-0082, 2013 WL 5745608, at *4 (Iowa Ct. App. Oct. 23, 2013).
In June 2021, the district court ruled on a motion to reconsolidate the trials of all defendants except Yak:
The State now asserts again that the cases should be consolidated. While Defendant Yak's case has already been tried, his absence does not alleviate the conflicts noted above. Defendant Owo Bol claims he was not present. Defendant Dominguez-Schiesl also asserts that he was not present and claims that the others were motivated by gang involvement. Defendant Thon Bol wishes to offer one of the exhibits in its entirety [the dash camera video of Thon Bol's
conversation with his sister]. However, that exhibit contains information concerning the criminal records of Defendants Owo Bol and Odol Othow. The Court believes that Owo Bol's and Dominguez-Schiesl's defense is antagonistic to the others to the point of being irreconcilable and mutually exclusive. Furthermore, the evidence that Thon Bol wishes to introduce would be inadmissible if admitted against Owo Bol or Odol Othow if they were tried alone. As a whole, the Court believes a joint trial will result in prejudice against the Defendants, and the State's desire for judicial economy does not overcome that prejudice.
The State moved to reconsider the district court's denial of the motion, conceding that Dominguez-Schiesl's trial should be separate, but otherwise arguing that consolidation of the other three defendants was proper because the general denials of Thon Bol, Owo Bol, and Othow could not be shown to be "antagonistic to the level that it will deprive any of the three defendants a fair trial." After a hearing in July where the district court pressed the remaining defendants for more specific arguments, the district court again consolidated the trials of the three codefendants, finding the "fundamental defenses are not inherently contradictory, such that they cannot be tried together without prejudice." At the end of July, after the trial had started but before any witness testimony, Othow again renewed his motion to sever.
Othow asserts that he preserved error by continuing to move to sever prior to the start of the opening statements at the second trial, but we note he made one more motion to sever following testimony by the court services staff member but before Othow testified. The district court denied the motion. But this last motion came after an unreported bench conference and, other than noting that the motion to sever was renewed, no other record was made. Thus, we find there are no new issues raised that pertain to the last motion that we need to consider here.
Now, Othow bears the burden of showing that "separate trials are necessary to avoid prejudice that would deny him a fair trial." State v. Clark, 464 N.W.2d 861, 864 (Iowa 1991). This prejudice means more than simply that one defendant will attempt to exculpate themselves by incriminating the others but that a joint trial would be unfairly prejudicial. Id. And regarding irreconcilable and mutually exclusive defenses, they must be so antagonistic that "the jury, in order to believe the core testimony offered on behalf of one defendant, must necessarily disbelieve the testimony offered on behalf of a codefendant." State v. Leutfaimany, 585 N.W.2d 200, 203 (Iowa 1998); see also Zafiro v. United States, 506 U.S. 534, 538 (1993) (referring to the federal rules and stating that "[m]utually antagonistic defenses are not prejudicial per se."). We review based on what the district court knew at the time it ruled on the motion for severance, and not what it learned at the conclusion of the trial. Clark, 464 N.W.2d at 864 ("We must decide if, at the time the trial court ruled on [the] motion, [the defendant] had established that the conflicting defenses would cause sufficient prejudice to constitute the denial of a fair trial."). Only if a defendant renews the motion for severance do we look to prejudice that actually occurred during trial. Belieu, 288 N.W.2d at 899. Here, Othow made several motions to sever, including one right before opening statements and one during testimony by the court services staff member; but he did not renew his motion to sever after he testified in his own defense. Thus, we look to what the court knew through the time Othow's motions were denied, through the time of the court services staff member's testimony.
Here, Othow relies on the first and fourth factors to argue that the district court should have ordered a severance. Regarding the first factor, Othow points to the recorded phone call between Thon Bol and his sister and testimony of the statement by Owo Bol that Yak "better not fucking fold, don't fucking say shit" as evidence that would not have been admissible if Othow was tried alone. Yet, both statements would have been admissible in a trial of only Othow as non-hearsay because the State offered them as evidence of knowledge concerning the conspiracy and not for the truth of the matters that they asserted in the statements. See Iowa Rs. Evid. 5.801(c) (defining hearsay); .803(3) (excepting from the rule excluding hearsay a statement of a declarant's then existing state of mind); State v. Dullard, 668 N.W.2d 585, 589-90 (Iowa 2003) ("[A] declaration is excluded from the definition of hearsay when it is not a statement or is not offered to prove the truth of the matter asserted."). Therefore, the first factor for severance is not fulfilled.
Othow also argues that the two pieces of evidence would not have been admissible under Bruton. But Bruton concerns the admission of an oral confession by a co-defendant that inculpated the appellant-defendant and was admitted at their joint trial, even though the evidence was not admissible as evidence of the appellant-defendant's guilt. 391 U.S. at 125 (looking, specifically, at a statement that the appellant-defendant participated with the other co-defendant in committing the crime). It also concerned an appellant-defendant who did not take the stand at trial and was the only other co-defendant. Id. at 132. As Othow did testify at trial and he does not point to any statements inculpating him, but merely statements that are unfavorable, we conclude Bruton is inapposite here; we do not consider the argument further.
Regarding the fourth factor, Othow argues that the district court relied only on the State's characterization of the co-defendant's trial defenses and should have considered his arguments about strategy instead. During the July hearing on the State's motion to reconsider the district court's denial of the request to reconsolidate the co-defendants' trials, Othow's counsel took a general denial stance by saying:
Othow argues that the district court should have held a Watson hearing "to determine the nature of conflict among the defendants." See State v. Watson, 620 N.W.2d 233, 234 (Iowa 2000). But Watson does not apply to conflicts among codefendants unless it involves the existence of an attorney's conflict of interest based on dual representation of a defendant and a party whose interests are adverse to the defendant. Id. at 235, 239 ("[M]ost conflict of interest cases arise in the context of one attorney representing multiple defendants ...."). As Othow does not make any claim that a conflict of interest impacted the constitutional adequacy of his attorney's representation, we see no basis for his claim the court should have held a Watson hearing. We do not consider this argument further.
I think my client is always able to testify in his own self-defense. We do not need to give notice of that. If we are tried together-and this is a decision that we need to make once we get all the evidence in, but it's probably going to be my client didn't have it on him, [Thon] had a gun under her [sic] seat, [Owo] had two guns on him. Those are the perpetrators of the crime, not my client. ....
I think that's probably where we're going to head, if we are tried together.
Othow now argues he was "not free to disclose his intent to testify, nor was he free to disclose his intent to essentially alibi[] himself out of the car during his future testimony." In contrast to Othow's assertions, Othow did testify and in that testimony set out an elaborate alibi, but which did not implicate the other defendants. As a final issue, Othow asserts he should have been tried separately because his testimony conflicted with other testimony at trial about where he was sitting in the vehicle, but he does not explain how that conflicting testimony would have been different if he had been tried alone. And, again, the district court could not have considered Othow's future testimony in ruling on his motion.
We conclude Othow did not meet his burden to show that he was prejudiced by a joint trial or that his defenses qualified as irreconcilable or mutually exclusive with his co-defendants' defenses. See Leutfaimany, 585 N.W.2d at 204 (finding that a defendant who took the stand and claimed that "he was merely present at the scene and not an active participant" was not so deprived of a fair trial to warrant remand for a new trial). Instead, Othow maintained that he did not pull a trigger and did not see anyone else pull a trigger either. And again, "defendants are not entitled to severance simply because they have a better chance of acquittal in separate trials." State v. Bogan, 774 N.W.2d 676, 683 (Iowa 2009) (citing Zafiro, 506 U.S. at 540). What's more, at the time that the district court declined to order separate trials, the district court had no notice of this future testimony as Othow had not filed a notice of an alibi defense. See Iowa R. Crim. P. 2.11(12)(a). But even so, Othow ultimately utilized an alibi defense in a manner that did not conflict with the defenses asserted by his co-defendants. Therefore, because we find that there were no irreconcilable and mutually exclusive defenses here, and none that were apparent to the trial court at the time of the severance ruling, the fourth factor for severance is also not met. The district court did not abuse its discretion in allowing the joint trial of Othow, Owo Bol, and Thon Bol.
B. Admission of Recorded Statements.
Next, Othow asserts that the district court erred in admitting the recorded statements of Yak and Dominguez-Schiesl once they were severed from trial with Othow, as they were hearsay statements not subject to any exception. On this point, Othow argues the State failed to prove a conspiracy so the exception under Iowa Rule of Evidence 5.801(d)(2)(E), which allows as non-hearsay statements made in furtherance of an ongoing conspiracy, could not apply here. A panel of this court addressed this same question in Bol. 2023 WL 7391657, at *5-6 (finding the recorded statements were not offered for the truth of the matter asserted, thus they were not hearsay and the district court did not err by admitting them). We are not persuaded the issue was incorrectly decided in Bol, 2023 WL 7391657, at *5- 6. First, hearsay is "a statement that: (1) The declarant does not make while testifying at the current trial or hearing; and (2) A party offers into evidence to prove the truth of the matter asserted in the statement." Iowa R. Evid. 5.801(c). Hearsay is inadmissible. Iowa R. Evid. 5.802 (the rule against hearsay). But hearsay, by definition, must be offered for the truth of the matter that it asserts. State v. Crowley, 309 N.W.2d 523, 524 (Iowa Ct. App. 1981).
Here, the State argues that it offered the statements of Yak and Dominguez-Schiesl not for the literal truth that they asserted, but to demonstrate their efforts to conceal the group's ongoing conspiracy through use of false information. Id. (finding that because "the [S]tate was trying to show precisely the opposite that the defendant was not telling the truth" the statement was not hearsay). We agree for all statements except for those in the final moments of Yak's interview with Detectives Shannon and Harden. The State first argues that the questions Yak asked were not statements for hearsay purposes and were not intended as an assertion. See State v. Weaver, 608 N.W.2d 797, 805 (Iowa 2000) (holding that questions that do not contain an assertion "are not intentional expressions of facts or opinions" and "are not assertions, at least for purposes of the hearsay rule"). Regarding Yak's twice-asked question of "who came to the door?", we find that the statements, although questions, implied that Yak was present at the home on March 1; so that assertion was hearsay. See Dullard, 668 N.W.2d at 595 (holding "assertions implied from assertive speech" are hearsay under the Iowa Rules of Evidence); State v. McIntyre, No. 18-0266, 2019 WL 156641, at *4 (Iowa Ct. App. Jan. 19, 2019) (concluding a statement posed as a question was hearsay because of the implied assertion within the question); State v. Frederiksen, No. 15-0844, 2016 WL 4051655, at *9 (Iowa Ct. App. July 27, 2016) ("The doctrine of implied assertion applies both to the literal truth of a statement as well as any implied truth or implied assertions.").
At the same time, the admission of these statements was harmless for Othow's case and thus not grounds for a new trial. See State v. Juste, 939 N.W.2d 664, 675 (Iowa 2019) (providing that any hearsay that the district court improperly admits is presumed to be prejudicial unless the record affirmatively establishes no prejudice resulted). Othow maintained that he was not present at the home or even in the vehicle at the time of the shooting on March 1. Even more, Othow testified he was not aware of what the others were doing while he was conversing with the woman on the street. Thus, the implied assertion from Yak's questions that Yak must have been at the home during the shooting does not affect Othow's offered defense that Othow was not. Although the volunteered questions were hearsay, the admission was harmless. Therefore, for the reasons discussed above related to his hearsay challenges, Othow is not entitled to a new trial.
C. Sufficiency of the Evidence.
Lastly, Othow argues that there was insufficient evidence presented at trial to support the guilty verdicts for each of his crimes: attempted murder, intimidation with a dangerous weapon, and willful injury causing serious injury. "Evidence is considered substantial if, when viewed in the light most favorable to the State, it can convince a rational jury that the defendant is guilty beyond a reasonable doubt." State v. Trane, 934 N.W.2d 447, 455 (Iowa 2019) (quoting State v. Ramirez, 895 N.W.2d 884, 890 (Iowa 2017)). "[T]he evidence must raise a fair inference of guilt and do more than create speculation, suspicion, or conjecture." State v. Kern, 831 N.W.2d 149, 158 (Iowa 2013) (quoting State v. Webb, 648 N.W.2d 72, 76 (Iowa 2002)). "[N]either knowledge nor proximity to the scene is- standing alone-enough to prove aiding and abetting." State v. Lewis, 514 N.W.2d 63, 66 (Iowa 1994). However, evidence of aiding and abetting "may be supplied directly or through circumstantial evidence including presence, companionship and conduct before and after the offense is committed." State v. Brimmer, 983 N.W.2d 247, 257 (Iowa 2022) (internal quotation marks and citation omitted); see also State v. Huser, No. 10-2067, 2011 WL 6079120, at *3 (Iowa Ct. App. Dec. 7, 2011).
Although Othow sets up this argument as a claim that the verdict was contrary to the weight of the evidence, we conclude he is actually challenging the sufficiency of the evidence as his supporting authorities are sufficiency-of-the-evidence cases. See, e.g., State v. Chapman, 944 N.W.2d 864, 871 (Iowa 2020) (reviewing for "whether the record contains sufficient evidence to support the district court's determination"); State v. Sanford, 814 N.W.2d 611,614-15 (Iowa 2012) (reviewing the defendant's claims that there was insufficient evidence); State v. Petithory, 702 N.W.2d 854, 856 (Iowa 2005) ("[T]he question posed in this case is not whether Petithory's trial counsel was ineffective, but rather whether there was sufficient evidence to support his conviction."). Therefore, we address this argument as a sufficiency-of-the-evidence claim. Insofar as Othow meant to raise a weight-of-the-evidence claim, it is waived. See Iowa R. App. P. 6.903(2)(g)(3).
To narrow the issues, Othow claims that the State presented insufficient evidence that (1) he had the specific intent to cause death or serious injury to N.M. and (2) that he knowingly approved or actively participated in the crimes. A jury could reasonably infer that a natural consequence from the sheer quantity of shots fired in the direction of an occupied building or toward a person was to intend to cause death or serious injury. See State v. Millbrook, 788 N.W.2d 647, 649-50 (Iowa 2010) (allowing a conviction for intimidation with a dangerous weapon to stand when the defendant drove by a party with a gun "fully loaded with seven rounds of ammunition" and "fired the weapon until it was empty"); State v. Gipson, No. 17-1359, 2018 WL 3650337, at *2-3 (Iowa Ct. App. Aug. 1, 2018) (finding sufficient evidence to support the conviction of going armed with intent when the defendant "sprayed bullets" and "shot at the pub more than two dozen times" as well as "caused people in the pub to fear for their lives and dive to the floor"). In addition, because the State established three guns were responsible for the barrage of bullets shot in the direction of an occupied building and person, a jury could infer that several occupants of the vehicle intended the natural consequence of those actions-that someone would be hit. See Gipson, 2018 WL 3650337, at *3; State v. Brown, No. 02-0086, 2003 WL 1967828, at *4 (Iowa Ct. App. Apr. 30, 2003) ("The fact [the defendants] 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.").
Unchallenged jury instructions become the law of the case for purposes of our review of sufficiency of the evidence. State v. Schiebout, 944 N.W.2d 666, 671 (Iowa 2020). Othow challenges the sufficiency of the evidence regarding elements of aiding and abetting, willful injury causing serious injury, and attempted murder. The instruction for aiding and abetting read "'Aid and abet' means to knowingly approve and agree to the commission of a crime, either by active participation in it or by knowingly advising or encouraging the act in some way before or when it is committed." The instruction for willful injury causing serious injury read:
1. On or about March 1, 2021, the Defendants or someone they aided and abetted shot firearms into the home ....
2. The Defendant or someone they aided and abetted specifically intended to cause a serious injury to D.M.... or any of the occupants of the home ....
3. The Defendants' act, or the act of someone they aided and abetted caused a serious injury to D.M.....And the instruction for attempted murder read:
1. On or about March 1, 2021, the Defendants or someone they aided and abetted shot firearms at N.M.
2. By their acts, the Defendants or someone they aided and abetted expected to set in motion a force or chain of events, which would have caused or result in the death of N.M.
3. When the Defendants or someone they aided and abetted acted, they specifically intended to cause the death of N.M.
But beyond the behavior of the group, the jury had other evidence to evaluate. First, Othow made up a false name during his interview. See State v. Little, No. 19-1062, 2021 WL 1400068, at *9 (Iowa Ct. App. Apr. 14, 2021) (noting a jury could properly infer guilt based upon actions, such as making inconsistent statements to the police or use of a fake name to disguise involvement). The jury did not have to believe Othow's alibi that he saw a woman on the street as they were driving by and left the co-defendants to smoke marijuana with her. Sanford, 814 N.W.2d at 615 (holding that, in reaching its verdict, the jury is "free to reject certain evidence, and credit other evidence"); Brown, 2003 WL 1967828, at *4 (finding that the same is "[i]nherent in our standard of review of jury verdicts in criminal cases" and "credibility of witnesses, in particular, is for the jury"). Plus, other than Othow's testimony, there was no other evidence to support his claim he left the group for a period of time-for example, his phone showed no call or text to the others when he was ready to leave because they just happened to return to get him. See State v. Cox, 500 N.W.2d 23, 25 (Iowa 1993) (noting that implausibility of defendant's story, along with false statements to officers, supplies sufficient evidence to indicate guilt). In a like manner, the jury heard that Othow made a several-hour road trip from Sioux City to Des Moines without a clear explanation of where the group was going or what they were all going to do. And although he was outside in the cold with the woman for "roughly forty-five minutes to an hour," when he was picked-up, for some reason unknown, they headed right back to Sioux City. In the video of the neighborhood where the shooting occurred, the Nissan Rogue SUV traveled back and forth around the home until someone came out and then the shooting commenced. Thus, a rational trier of fact could infer the group in the vehicle traveled to Des Moines to do a targeted shooting, did not stay long, and then headed back to Sioux City. The jury also had to make sense of the video in the vehicle of Othow and the two other co-defendants displaying the firearms and ammunition that connected them to the shooting. And the jury could have factored in this video of Othow celebrating as conduct after the offense was committed that indicated approval. See Brimmer, 983 N.W.2d at 257. Finally, in the video, not only was Othow surrounded by Owo Bol and Dominguez-Schiesl, who were both brandishing firearms that matched bullets recovered at the scene, Othow was holding an extended magazine that went with those firearms. And Othow disavowed any knowledge of the shell casings scattered around the vehicle.
After considering that evidence, the jury could reasonably conclude that, even if it was unclear whether Othow actively fired a gun during the drive-by shooting, at a minimum, he aided and abetted in the crime by knowingly approving of the shooting. See State v. Lilly, 930 N.W.2d 293, 308 (Iowa 2019) (recognizing the State can prove aiding and abetting through direct or circumstantial evidence and must show the defendants "assented to or lent countenance and approval to the criminal act[s] either by active participation or by some manner encouraging it prior to or at the time of its commission") (citation omitted)).
There was substantial evidence for the jury to find Othow aided in the crimes and, given the nature of the shooting, each participant intended to injure a person in the house. Considering the evidence in the light most favorable to the State, including all legitimate inferences we can gather from the record, there was sufficient evidence to link Othow to the crimes and to establish that he had the specific intent to injure or cause a death when the shooting occurred. See State v. Williams, 695 N.W.2d 23, 27 (Iowa 2005). For these reasons, we find that the verdicts were supported by substantial evidence.
IV. Conclusion.
Because we find that the district court did not abuse its discretion in overruling Othow's motion to sever his trial from Owo Bol and Thon Bol, that the district court did not err in admitting the recorded statements of Yak and Dominguez-Schiesl even though they were severed from the trial, and substantial evidence supports the verdicts, we affirm Othow's convictions.
AFFIRMED.