                    IN THE COURT OF APPEALS OF IOWA

                                  No. 14-1042
                            Filed December 9, 2015

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

BOBBY JOE SNOW,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Wapello County, Lucy J. Gamon,

Judge.



      A defendant appeals his conviction for murder in the second degree.

AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Patricia Reynolds, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Kevin Cmelik, Martha E. Trout,

and Laura Roan, Assistant Attorneys General, for appellee.




      Considered by Danilson, C.J., and Vogel and Tabor, JJ.
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TABOR, Judge.

      An angry, late-night confrontation between Bobby Joe Snow and James

McElroy turned deadly when Snow’s punch fell McElroy, who struck his head on

the pavement. Snow sped away from the scene, yelling out his car window to

patrons of a nearby beer garden: “You better go check on James. I just dropped

him.” McElroy died. Snow stood trial for murder in the second degree.

      On appeal, Snow challenges his conviction, alleging three grounds for

reversal: (1) insufficient evidence, (2) an improper ruling on his motion for new

trial, and (3) ineffective assistance of counsel concerning prior bad acts

evidence. Viewing the record in the light most favorable to the State, we find

substantial evidence to support the jury’s verdict. We also reject Snow’s claim

the court erred in ruling the verdict was not contrary to the weight of the

evidence. Finally, we preserve Snow’s ineffective-assistance-of-counsel claim

for possible postconviction-relief proceedings.

I.    Background Facts and Proceedings

      The events at issue in this appeal started on May 14, 2011, at the

Touchdown tavern in Ottumwa.         McElroy and his live-in girlfriend, Beverly

Dawson, were out drinking with Dawson’s daughter, Robyn Assell, and her

boyfriend, Shannon Jameson. McElroy and Dawson called it a night around

10:30 p.m. and went to their home on South Fellows Street. Assell and Jameson

moved on to Coconana’s bar, which was located about a block from South

Fellows Street.
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       In Coconana’s beer garden, Jameson and Assell saw Assell’s half-sister,

Summer Dawn Hipshur, who was “freaking out” because Snow was also in the

bar. Hipshur’s reaction stemmed from a fight that occurred a few weeks earlier in

the same bar when Snow had punched her “right between the eyes,” resulting in

Coconana’s owners banning Snow from the premises. Because of the ban, on

May 14, the owners told Snow to leave, which he did angrily. At the same time,

Assell was returning to the bar on foot after walking Hipshur home. Jameson

called Assell’s cell phone to warn her to stay out of Snow’s way because he was

“driving crazy.” Jameson left the bar to meet Assell and saw Snow strike her with

his car.

       In the meantime, McElroy received word of the uproar and walked out of

his house toward Coconana’s. McElroy spotted Snow’s car and approached the

driver’s side window where the two men had an “aggravated” exchange. Snow

then drove off, “gas pedal to the floorboard,” into the alley. But a few seconds

later, Snow came right back down the alley. McElroy again walked over to the

driver’s door; he and Snow were both yelling. McElroy slapped the top of the car,

and Snow sped away again. Snow then made a u-turn and stopped on South

Fellows.

       During this third encounter, Snow stepped out of his car and punched

McElroy, who “immediately hit the ground.” A witness recalled McElroy went to

his knees and then fell back, his head hitting the pavement in the middle of the

road. McElroy was not in good shape: “[H]is nose was all messed up. His eyes

were rolling in the back of his head, and he was fighting to breathe.”
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      Snow “took off as fast as [his car] would go”—tires squealing. Snow drove

past Coconana’s beer garden, yelling out his window that he had just “dropped”

McElroy. An ambulance picked up both Assell and McElroy. Assell was treated

and released, but McElroy died from his severe head injury.          The medical

examiner estimated McElroy’s blood alcohol content at the time of death would

have been .13.

      In an interview with police on May 15, Snow admitted grabbing McElroy by

the shirt and striking him with a right hook to the chin. Snow held up his fists,

telling the investigators they were his “trademark.” Snow “laid out on the floor in

the booking room” to demonstrate how McElroy “fell to his ass” and started

“jerking or shaking” after he landed on the ground.

      The State charged Snow with murder in the second degree, in violation of

Iowa Code section 707.3 (2011).       Snow filed a motion in limine seeking to

exclude, among other things, any mention he had “allegedly assaulted Summer

Dawn Hipshur in the weeks prior to May 15, 2011.” At the motion hearing, the

defense withdrew that request. His trial started on March 3, 2014, and concluded

on March 10, 2014. The jurors deliberated for about two hours before returning

their guilty verdict. The court denied Snow’s motion for new trial and sentenced

him to an indeterminate term of fifty years. Snow now appeals.

II.   Scope and Standards of Review

      We apply three different levels of review in this appeal. We examine

Snow’s challenge to the sufficiency of the evidence for correction of legal error.

See State v. Copenhaver, 844 N.W.2d 442, 449 (Iowa 2014). We consider the
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court’s ruling on his motion for new trial under an abuse-of-discretion standard.

See State v. Thompson, 836 N.W.2d 470, 491 (Iowa 2013). Finally, his claims

regarding his trial attorney’s performance receive de novo review because they

involve his constitutional right to effective assistance of counsel. See State v.

McNeal, 867 N.W.2d 91, 99 (Iowa 2015).

III.   Analysis of Snow’s Challenges

       A. Sufficiency of the evidence

       We first address Snow’s challenges to the sufficiency of the evidence.

The jury’s verdict is binding on appeal if supported by substantial evidence.

State v. Dewitt, 811 N.W.2d 460, 467 (Iowa 2012). We consider evidence to be

substantial “if it would convince a rational trier of fact the defendant is guilty

beyond a reasonable doubt.” Id.

       After hearing all of the evidence, the jury decided the State proved the

following elements of second-degree murder:

              1. On or about the 15th day of May, 2011, Bobby Joe Snow
       struck a blow to James McElroy’s face.
              2. James McElroy died as a result of being struck in the face
       by the defendant.
              3. The defendant acted with malice aforethought.

       The court instructed the jury that malice aforethought means “a fixed

purpose or design to do some physical harm to another which exists before the

act is committed. It does not have to exist for any particular length of time.”

       On appeal, Snow argues the State failed to prove he acted with malice

aforethought. He suggests instead he may be guilty of voluntary manslaughter

because he was acting “with a sudden violent and irresistible passion, resulting
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from serious provocation” because of “the multiple blows struck by McElroy.”

See Iowa Code § 707.4. Alternatively, Snow argues he should have only been

convicted of involuntary manslaughter because he acted recklessly and

unintentionally caused McElroy’s death. Id. § 707.5.

      When we view the record in the light most favorable to the State, we find

substantial evidence supports the jury’s finding of malice aforethought. Snow

was angry when he left the bar. In his interview with police, he suggested he

was fed up with McElroy’s “clan.” See State v. Buenaventura, 660 N.W.2d 38, 49

(Iowa 2003) (explaining evidence of “bad feelings or quarrels between the

defendant and the victim are circumstances that may be used to support a

finding of malice aforethought”). After a heated encounter with McElroy, who

was on foot, Snow took the opportunity to drive away. But Snow quickly decided

to come back. He parked, stepped out of his car, and struck a hard blow to

McElroy’s face—watching the intoxicated man fall to the pavement and start to

jerk or shake. Then Snow drove off, boasting to others what he had done. See

State v. Berry, 549 N.W.2d 316, 318 (Iowa Ct. App. 1996) (finding malice from

defendant’s conduct after the stabbing). A reasonable jury could find Snow had

a fixed purpose to do harm to McElroy at the time of the deadly punch.

      Snow further argues the State failed to offer sufficient proof to overcome

his justification defense. Snow acknowledges this issue was not argued as part

of the motion for judgment of acquittal, but he claims his counsel was ineffective

for not doing so. To succeed on a claim of ineffective assistance, Snow must

prove by a preponderance of the evidence that his trial counsel failed to perform
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an essential duty and that failure prejudiced his case.         See Strickland v.

Washington, 488 U.S. 668, 687 (1984).

      Snow cannot show he was prejudiced by his counsel’s omission when

moving for judgment of acquittal because the State presented ample evidence to

counteract his justification defense. See State v. Crone, 545 N.W.2d 267, 273

(Iowa 1996) (rejecting claim trial counsel was ineffective for failing to challenge

certain elements in motion for judgment of acquittal when record revealed

sufficient evidence). A defendant cannot prevail in claiming reasonable force if

the State proves any of the following elements: (1) the defendant started or

continued the incident which resulted in injury, (2) an alternative course of action

was available to the defendant, (3) the defendant did not believe he was in

imminent danger and the use of force was not necessary, (4) the defendant did

not have reasonable grounds for the belief, or (5) the force used was

unreasonable. State v. Shanahan, 712 N.W.2d 121, 134 (Iowa 2006). Here, the

State established Snow had available an alternative course of action—leaving

the scene in his car. But instead Snow continued the incident by driving back to

McElroy’s location, exiting his vehicle, and punching McElroy in the face.

      We find no basis to disturb the jury’s guilty verdict.

      B. Motion for New Trial

      We next turn to Snow’s claim concerning the weight of the evidence. He

contends the district court applied the wrong legal standard in ruling on his

motion for new trial. In his motion, Snow alleged under Iowa Rule of Criminal

Procedure 2.24(2), “the facts and evidence of the case presented to the jury do
                                         8



not constitute or prove elements necessary to convict the Defendant on the

charge of Murder in the Second Degree.”

       The court denied the motion, stating on the record:

       The Court has carefully reviewed . . . the Motion for New Trial and
       the standards contained in the Iowa Rules of Criminal Procedure
       with respect to the same, and having done so, I find that . . . the
       Motion for New Trial should be denied at this time.

       Rule 2.24(2)(b)(6) permits the court to grant a new trial “[w]hen the verdict

is contrary to law or evidence.” Contrary to evidence means contrary to the

“weight of the evidence.” State v. Ellis, 578 N.W.2d 655, 659 (Iowa 1998). Snow

asserts the district court did not apply the Ellis standard to decide if the greater

weight of credible evidence supported his claim that he was acting in self-

defense when he struck McElroy.        The ruling at issue does not fall into the

category of cases where the district court mistakenly uses a sufficiency-of-the-

evidence standard in ruling on a new trial motion. See State v. Root, 801 N.W.2d

29, 31 (Iowa Ct. App. 2011). Instead, the district court did not share its reasons

for upholding the verdict.

       “When making a ruling on a motion for new trial, the trial court should state

the reasons for its ruling.” State v. Maxwell, 743 N.W.2d 185, 192 (Iowa 2008).

But even when the district court does not provide reasons, an appellate court

may affirm if the trial record reveals a proper basis for the court’s ruling. Id. at

192–93.    We find a proper basis for affirming here.        The credible evidence

regarding justification did not preponderate heavily against the jury’s verdict. See

Nguyen v. State, 707 N.W.2d 317, 327 (Iowa 2005) (explaining new trial should

be granted on this ground only in exceptional cases). The State’s witnesses
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offered consistent testimony concerning Snow’s actions that night and his

encounters with McElroy.      Even Snow’s own testimony confirmed that after

initially driving away from the conflict, Snow turned his car around and headed

back toward McElroy. Snow recalled putting the car in park, getting out, grabbing

McElroy by the front of the shirt, and hitting him in the chin. We agree with the

district court’s that the jury’s determination of guilt was not contrary to the weight

of the evidence.

       C. Prior Bad Acts Evidence

       Snow’s remaining claim concerns his attorney’s handling of the motion in

limine. Snow argues on appeal that counsel should have objected to testimony

and tape recordings that discussed an incident that occurred a few weeks before

McElroy’s death, when Snow allegedly hit Hipshur in the face. Snow contends

the evidence was inadmissible under Iowa Rule of Evidence 5.404(b).               He

recognizes the motion in limine originally sought to exclude the evidence, but

counsel withdrew that request. Snow notes “[n]o explanation was offered for this

change in strategy.”

       We seize on the word “strategy.” Where the challenged actions of counsel

implicate trial tactics or strategy, we often preserve the claim for postconviction-

relief proceedings where counsel has an opportunity to fully explain his or her

decisions.    State v. Clay, 824 N.W.2d 488, 494 (Iowa 2012).               We find

preservation is the best course here.

       AFFIRMED.
