                    IN THE COURT OF APPEALS OF IOWA

                                     No. 13-0084
                                Filed August 27, 2014

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

MONTEZ TYRONE CAPLES,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Black Hawk County, Kellyann M.

Lekar, Judge.



      Defendant appeals his conviction for murder in the first degree.

AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Theresa R. Wilson,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Sheryl Soich, Assistant Attorney

General, Thomas J. Ferguson, County Attorney, and Brian Williams, Assistant

County Attorney, for appellee



      Heard by Danilson, C.J., and Potterfield and McDonald, JJ.
                                         2



MCDONALD, J.

      Murder is the case.     Defendant Montez Caples firmly pressed a .357

caliber revolver to the back of Robert Shannon’s neck and shot and killed him.

Caples appeals his conviction for this offense, murder in the first degree, in

violation of Iowa Code section 707.2(1) (2011), contending the district court

improperly allowed the State to present evidence regarding Caples’ and

Shannon’s respective gang affiliation and the district court erred in denying his

motion to suppress the confession he gave to police.

                                         I.

      The court first addresses the evidentiary issue. Prior to trial, Caples filed a

motion in limine seeking to exclude evidence of the victim’s gang affiliation and

Caples’ gang affiliation. The district court denied Caples’ motion, and the State

presented to the jury evidence of gang affiliation tending to show Shannon and

Caples were from different, rival gangs. Caples contends the gang affiliation

evidence constituted “[e]vidence of other crimes, wrongs, or acts” the district

court should have excluded pursuant to Iowa Rule of Evidence 5.404(b). The

State first responds the gang affiliation evidence was “inextricably intertwined”

with evidence of the homicide and thus admissible.

      We review the district court’s ruling on the admissibility of other-acts

evidence for an abuse of discretion. See State v. Reynolds, 765 N.W.2d 283,

288 (Iowa 2009). “The abuse of discretion standard of review . . . recognizes that

whether evidence of [other] crimes should be admitted is a judgment call on the

part of the trial court.” State v. Rodriguez, 636 N.W.2d 234, 241 (Iowa 2001).
                                         3



The defendant has the heavy burden of establishing the trial court abused its

discretion in making that judgment call. See id. “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.” Reynolds, 765 N.W.2d at 288

(internal quotation marks omitted).    Even where the district court abused its

discretion in admitting evidence, we will not reverse the judgment of the district

court unless the evidentiary ruling prejudiced the defendant. See id.

      “Not all evidence of other crimes, wrongs, or acts falls within the scope of

Rule 5.404(b).” State v. Nelson, 791 N.W.2d 414, 419 (Iowa 2010). One such

category is evidence of other conduct deemed “inextricably intertwined” in a

causal, temporal, relational, or spatial sense with the charged offense. See id. at

419-20. In essence, inextricably-intertwined conduct is so closely related to the

crime charged as to be part and parcel of the same. By its terms, rule 5.404(b)

does not govern the admissibility of such evidence because the rule is applicable

only to “evidence of other crimes, wrongs, or acts” and not evidence of conduct

related to the crime charged. (Emphasis added.) Furthermore, because rule

5.404(b) is inapplicable to inextricably-intertwined evidence, “the court admits the

technically uncharged evidence without limitation and irrespective of its unfair

prejudice or its bearing on the defendant’s bad character.” Nelson, 791 N.W.2d

at 420.

      The State argues the gang affiliation was inextricably intertwined with the

crime because the evidence was necessary to complete the narrative for the jury.

The gang affiliation evidence explained why Caples was motivated to shoot a
                                         4



man he had met only hours before. Without such evidence, the State argues, the

jury would have been confused about the events leading up to the shooting. We

are not convinced the evidence here is “inextricably intertwined” with the charged

crime within the meaning of our cases.

      The supreme court directly addressed the narrative theory in Nelson. The

court rejected the State’s argument that evidence the defendant was a drug

trafficker was necessary to complete the narrative explaining a homicide.

Nelson, 791 N.W.2d at 424. In rejecting the State’s argument, the court adopted

a narrow approach to the inextricably-intertwined doctrine:

      [W]e will only allow such evidence to complete the story of what
      happened when the other crimes, wrongs, or acts evidence is so
      closely related in time and place and so intimately connected to the
      crime charged that it forms a continuous transaction. Thus, the
      charged and uncharged crimes, wrongs, or acts must form a
      continuous transaction. Moreover, we will only allow the admission
      of other crimes, wrongs, or acts evidence to complete the story of
      the charged crime when a court cannot sever this evidence from
      the narrative of the charged crime without leaving the narrative
      unintelligible, incomprehensible, confusing, or misleading. In this
      way, we can be sure rule 5.404(b) remains the standard for the
      admission of evidence of other crimes, wrongs, or acts and the
      inextricably intertwined doctrine is construed as a narrow and
      limited exception to rule 5.404(b).

Id. at 423-24. As in Nelson, while the State’s evidence of gang affiliation in this

case holds explanatory power, the exclusion of such evidence does not leave the

story unintelligible, incomprehensible, confusing, or misleading.    Actually, the

sanitized version of events is quite simple: one of the defendant’s associates got

into a verbal confrontation with the victim on the morning of the shooting, and the

defendant retaliated later in the day. While that narrative does not have the

same explanatory power it would if peppered with evidence the victim made
                                         5



reference to his gang during the verbal confrontation and the defendant is a

member of a rival gang, the sanitized narrative is not unintelligible,

incomprehensible, confusing, or misleading.

       The foregoing conclusion does not end our inquiry. We must analyze the

admissibility of the evidence under rule 5.404(b), which provides “[e]vidence of

other crimes, wrongs, or acts is not admissible to prove the character of a person

in order to show that the person acted in conformity therewith.” The rule is

intended to exclude propensity evidence: “evidence that serves no purpose

except to show the defendant is a bad person, from which the jury is likely to infer

he or she committed the crime in question.” State v. Putman, 848 N.W.2d 1, 8

(Iowa 2014). The evidence is admissible for non-propensity purposes, however,

“such as proof of motive, opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake or accident.”       Iowa R. Evid. 5.404(b).       In

determining whether such evidence is admissible, we engage in a three-step

analysis. See Putman, 848 N.W.2d at 9. “A court must first determine whether

the evidence is relevant to a legitimate, disputed factual issue.” Id. Second,

there also must be clear proof the individual against whom the evidence is

offered committed the bad act or crime.” Id. Finally, “[i]f the evidence is relevant

to a legitimate and disputed factual issue, and the clear-proof requirement is

satisfied, the court must determine whether the evidence’s “probative value is

substantially outweighed by the danger of unfair prejudice to the defendant.” Id.

       There is little doubt the evidence is relevant. Although motive is not an

element of murder, motive evidence is probative of the question of whether the
                                          6



defendant acted with malice aforethought.        See Nelson, 791 N.W.2d at 426

(concluding motive was relevant); State v. Shortridge, 589 N.W.2d 76, 83 (Iowa

Ct. App. 1998) (stating evidence of other conduct is relevant to establishing a

relationship between the parties and a motive for homicide); Heath v. State, No.

06-0492, 2007 WL 1687773, at *2 (Iowa Ct. App. June 13, 2007) (stating “the

gang membership of the participants was a key ingredient in the circumstances

that lead to the shooting” and thus admissible); State v. Gunther, No. 06-0018,

2007 WL 911895, at *3 (Iowa Ct. App. Mar. 28, 2007) (allowing evidence of other

acts to establish motive).

         There is also clear proof of gang affiliation. Clear proof does not require

proof beyond a reasonable doubt. See State v. Newell, 710 N.W.2d 6, 23 (Iowa

2006). Instead, “there simply needs to be sufficient proof to prevent the jury from

engaging in speculation or drawing inferences based on mere suspicion.” Id.

Testimony of a credible witness can satisfy this requirement. During the verbal

altercation that triggered the chain of events, Shannon identified himself as a

blood.     At the scene of the crime, the police found a red handkerchief—

associated with the blood gang—draped over the steering wheel.                Jamie

Billington, a friend of Caples, testified Caples belonged to the Gangster Disciples,

a rival gang. Caples’ tattoos and clothing corroborated this fact. In addition,

contemporaneous text messages corroborated Caples’ gang affiliation.            For

example, shortly prior to the murder, Billington texted Caples and asked if he

wanted his “flag,” i.e., his colored bandana.
                                         7



       We finally address the question of whether the probative value of the

evidence substantially outweighs the danger of unfair prejudice. Caples argues

evidence of gang affiliation was inherently prejudicial and requires reversal.

Caples relies on State v. Nance, 533 N.W.2d 557, 562 (Iowa 1995), a homicide

case, in which the court stated “evidence of gang membership and activity is

inherently prejudicial [because] [i]t appeals to the jury’s instinct to punish gang

members.” Caples reads too much into the phrase “inherently prejudicial.” All

“[r]elevant evidence is inherently prejudicial in the sense of being detrimental to

the opposing party’s case.” State v. Delaney, 526 N.W.2d 170, 175 (Iowa Ct.

App. 1994). The relevant inquiry is not whether the evidence is prejudicial or

inherently prejudicial but whether the evidence is unfairly prejudicial, that is the

“evidence has an undue tendency to suggest a decision on an improper basis.”

Id. “Unfair prejudice exists when minimally relevant evidence could lead a jury to

improperly use it to reach a decision based on inflammatory and emotional

considerations that are unfavorable to a victim because of his or her conduct or

lifestyle.” State v. Shearon, 449 N.W.2d 86, 88 (Iowa Ct. App. 1989).

       In weighing the probative value of the evidence versus the danger of

unfair prejudice, the court considers the following factors: “(1) the actual need for

the evidence in view of the issues and other available evidence, (2) the strength

of the evidence showing the other acts or crimes were committed by the

accused, (3) the strength or weakness of the other crimes evidence supporting

the issue, and (4) the degree to which the jury will probably be roused by the

evidence and use it improperly.” Delaney, 526 N.W.2d at 175-76. On balance,
                                        8



we cannot say that the trial court did not fairly weigh the probative value of the

evidence against the probable dangers of admitting it. The State’s presentation

of gang evidence was limited. The State did not present expert testimony on

gangs, gang violence, gang-related criminal activity, or otherwise emphasize the

evidence.   Instead, the evidence was offered quickly in conjunction with the

narrative of events without further elaboration. The gang affiliation evidence was

unlikely to arouse the jury’s passions given the nature of the crime charged. See

State v. Larson, 512 N.W.2d 803, 808 (Iowa Ct. App. 1993) (noting the

challenged evidence “did not involve conduct any more sensational or disturbing”

than the crime charged). Accordingly, we hold the district court’s resolution of

this delicate balancing process was reasonable and did not constitute an abuse

of discretion. See Astello v. State, No. 02-2085, 2004 WL 239852, at *2 (Iowa

Ct. App. Feb. 11, 2004) (explaining evidence of gang affiliation was relevant and

not unfairly prejudicial when used to show how the defendant became involved

with the events leading to the homicide and where victim was found gagged with

red bandana).

      Even assuming the evidence should have been excluded, “[r]eversal is not

required for the erroneous admission of evidence unless prejudice results.”

Rodriquez, 636 N.W.2d at 244. “To establish prejudice, [Caples] must show a

reasonable probability that but for the error the outcome of the trial would have

been different.” See id. “Where the other evidence overwhelmingly establishes

the defendant’s guilt, we have applied the harmless error doctrine.” Id.
                                         9



       We conclude there is overwhelming evidence of guilt and any evidentiary

error was harmless. At the time of the homicide, the victim, Shannon was in the

front seat of his vehicle, and Caples was in the backseat with his friend Jamie

Billington. At trial, Billington testified Caples pulled out a gun and shot Shannon

from the backseat. William Douglas, the uncle of Caples’ friend DiWayne Brown,

met Caples after the shooting and helped Caples dispose of the gun. Douglas

later cooperated with law enforcement and led them to the gun and to the

casings fired from the gun.      DNA on the barrel of the recovered gun was

consistent with Shannon’s DNA. Caples sent contemporaneous text messages

regarding the shooting.    Subsequently, and addressed in more detail below,

Caples confessed to killing Shannon upon being interviewed by the police.

Finally, Caples sent a letter to a friend after the fact stating because he “was man

enough to do the crime,” he “would be man enough to do the time.” Given the

foregoing, any reference to gang affiliation was not prejudicial.

                                         II.

       The court next addresses Caples’ claim the district court erred in denying

his motion to suppress his confession made to the police. Caples contends the

confession was obtained in violation of his Miranda rights.            We review

constitutional issues de novo. See State v. Pearson, 804 N.W.2d 260, 265 (Iowa

2011) (“We review de novo a district court’s refusal to suppress statements

allegedly made in violation of constitutional safeguards.”).        “We make an

independent evaluation of the totality of the circumstances as shown by the

entire record.” See State v. Palmer, 791 N.W.2d 840, 844 (Iowa 2010) (citation
                                         10



omitted). “We consider both the evidence introduced at the suppression hearing

as well as the evidence introduced at trial.” See id.

          The Fifth Amendment to the Federal Constitution provides that no person

“shall be compelled in any criminal case to be a witness against himself.” U.S.

Const. amend. V. The Due Process Clause of the Fourteenth Amendment to the

Federal Constitution makes this right against self-incrimination binding on the

states.     Malloy v. Hogan, 378 U.S. 1, 6 (1964).       The Supreme Court has

concluded prophylactic warnings designed to dispel the coercion inherent in

custodial interrogation must be provided to any person questioned by the police

after being “taken into custody or otherwise deprived of his freedom of action in

any significant way.” Miranda v. Arizona, 384 U.S. 436, 444 (1966). The person

must be warned that “he has a right to remain silent, that any statement he does

make may be used as evidence against him, and that he has a right to the

presence of an attorney, either retained or appointed.” Id. at 444. In Arizona v.

Edwards, the Supreme Court held once the accused exercises the right to

counsel, “interrogation must cease until an attorney is present” or the accused

initiates “further communications, exchanges, or contestations with the police.”

Edwards v. Arizona, 451 U.S. 477, 484-85 (1981). However, not every action by

an accused amounts to initiation of further communication; a person must

manifest “a willingness and a desire for a generalized discussion about the

investigation.” Oregon v. Bradshaw, 462 U.S. 1039, 1045-46 (1983).

          The record reflects Caples came to the police station and was interviewed

or interrogated on several different occasions over two days while the police
                                       11



were investigating Shannon’s murder.        He contends the police repeatedly

ignored his invocation of his right to counsel.     The State contends Caples

voluntarily continued to speak to investigators following renewed Miranda

warnings. We focus on the last interview because only the last interview elicited

a confession. During the last encounter with police, Caples requested counsel,

as he arguably had done in prior encounters with the police. The police ceased

interrogation but placed Caples in a holding cell and told him he would be

charged with murder. Several hours later, Caples banged on his cell door and

requested to speak to somebody.       The investigating officer read Caples the

Miranda warnings. Caples waived his rights and confessed to the murder. He

contends the police failed to honor his request to speak with counsel by

continually reinitiating conversation with him and engaging in activities

reasonably geared to prompt a response by Caples.         Although we conclude

Caples’ confession was not obtained in violation of his rights, we deny Caples’

claim on the ground any error was harmless.

      “Most federal constitutional errors in the course of a criminal trial do not

require reversal if the error is harmless.” State v. Peterson, 663 N.W.2d 417, 430

(Iowa 2003). This includes the erroneous admission of a confession in violation

of the defendant’s rights. See id. Constitutional harmless error analysis focuses

on the grounds upon which “the jury actually rested its verdict” and not on what

some hypothetical jury would have done. See Sullivan v. Louisiana, 508 U.S.

275, 279 (1993). The issue “is not whether, in a trial that occurred without the
                                          12



error, a guilty verdict would surely have been rendered, but whether the guilty

verdict actually rendered in this trial was surely unattributable to the error.” Id.

       It is the State’s burden to prove harmless error. The State must “prove

beyond a reasonable doubt that the error complained of did not contribute to the

verdict obtained.” Chapman v. California, 386 U.S. 18, 24 (1967). In conducting

the harmless error analysis, we consider the “evidence the jury actually

considered in reaching its verdict.” Peterson, 663 N.W.2d at 431. We then

“weigh the probative force of that evidence against the probative force of the

erroneously admitted evidence standing alone.” Id. Within this framework, error

is harmless when “the force of the evidence is so overwhelming as to leave it

beyond a reasonable doubt that the verdict resting on that evidence would have

been the same without the erroneously admitted evidence.” Id.

       In this case, the State was required to prove Caples acted with malice

aforethought and acted “willfully, deliberately, premeditatedly and with the

specific intent to kill Robert Shannon.”        There is overwhelming direct and

circumstantial evidence supporting the verdict. Billington was with both men in

the car as Caples executed his ruse, which was to have Shannon drive them

around Waterloo for the purported purpose of finding an isolated place to smoke

marijuana but for the real purpose of isolating and killing Shannon. Billington

was in the backseat with Caples when he pulled the gun and shot Shannon in the

back of the neck. Billington testified Shannon had not made any threats toward

them prior to Caples killing Shannon. Billington also testified that she and Caples

fled to Brown’s house after the shooting. Because they could not find bleach,
                                        13



Brown urinated on Caples’ hands in an attempt to cleanse them of any evidence.

Douglas then assisted Caples in disposing of the firearm and shell casings.

Later, Douglas cooperated with law enforcement and helped law enforcement

retrieve the items. DNA evidence linked the gun to Shannon. Text messages

and phone calls corroborate the witness’s testimony regarding the events leading

up to the shooting and Caples’ involvement in the shooting. Finally, independent

of any confession, Caples wrote to a friend that if he was man enough to do the

crime, he was man enough to do the time.

      The confessions, when viewed within the context of the case as it was

actually tried to this jury, did not reasonably contribute to the verdict. This case

was tried as a “whydunit” not a “whodunit.”        Whodunit was not in dispute.

Caples’ defense strategy was to admit to the jury he killed Shannon but only

because his friend DiWayne Brown coerced him to do so. The contested issue

was Caples’ culpability. For instance, in the opening statement, Caples’ lawyer

said, “DiWayne [Brown] gets his .357 Magnum, his gun, and he gives it to

Montez Caples and says, Montez, you have to kill that guy or I’m going to kill

you.” Later defense counsel argued to the jury, “DiWayne Brown wasn’t in the

car, but he could have been. DiWayne Brown didn’t pull the trigger, but it was his

actions that pulled the trigger.” In closing argument, Caples’ attorney argued to

the jury, “Robert Shannon’s fate was sealed because of DiWayne Brown.

Because DiWayne Brown wasn’t going to do it himself and he knew that Montez

would do it because he knew he had a few things. He had fear. He had control

and he had power.” Later he said, “You saw [Caples] apologize, real emotion.
                                        14



But through it all he always said it was DiWayne Brown. It was DiWayne Brown

that made me do it. [DiWayne] is a kingpin and I’m not looking to die.” Finally,

counsel argued to the jury:

       This cause, ladies and gentlemen, at its heart it’s about fear, it’s
       about control, it’s about power and on December 14, 2011, it was
       also about a gun. A gun that Montez Caples believed would be
       pointed at him if he didn’t do exactly what DiWayne ordered him to
       do. . . . [Caples] didn’t make arrangements, he followed orders.
       Throughout that day we’ve heard about decisions that were made.
       But at no point was Montez Caples the one who was making those
       decisions. Montez Caples’ actions that day were never of his own
       volition. He was never, that day, acting voluntarily of his own free
       will. Because that day it was all about power, fear, and control, and
       that’s DiWayne Brown.

       Caples confession is consistent with his theory of the case and did not

advance the State’s case.       In his confession, Caples told police that Brown

forced him to kill Shannon. Caples told the police that Brown was the person

truly responsible for the murder because Caples did not “have the balls to do

nothing like that by myself.”

       Under these facts and circumstances, we conclude any constitutional error

was harmless. See, e.g., Howard v. State, 586 So. 2d 289, 293 (Ala. Crim. App.

1991) (holding admission of confession to robbery was harmless error where

defendant’s trial strategy was to admit to conduct but argue degree of culpability)

abrogated in part by McLeod v. State, 718 So. 2d 727 (Ala. 1998); Neelley v.

State, 494 So. 2d 669, 674-75 (Ala. Crim. App. 1985) (holding admission of

confession was harmless error where defense theory was to admit to homicide

but contest the defendant’s mental state and legal culpability).
                                  15



                                  III.

For the foregoing reasons, the judgment of the district court is affirmed.

AFFIRMED.
