                    IN THE COURT OF APPEALS OF IOWA

                                   No. 18-0677
                               Filed May 15, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

MIGUEL ANGEL LORENZO BALTAZAR,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg,

Judge.



      Miguel Angel Lorenzo Baltazar appeals his conviction for murder in the first

degree. REVERSED AND REMANDED FOR NEW TRIAL.



      Mark C. Smith, State Appellate Defender, (until withdrawal) and Stephan J.

Japuntich, Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Kyle P. Hanson, Assistant Attorney

General, for appellee.



      Considered by Vogel, C.J., Vaitheswaran, J., and Carr, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).
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VOGEL, Chief Judge.

       Miguel Angel Lorenzo Baltazar appeals his conviction for murder in the first

degree.     He argues his counsel was ineffective for failing to object to jury

instructions on his justification defense, and both parties argue the court abused

its discretion in allowing only certain character evidence of the decedent. Because

the 2017 amendments to Chapter 704 of the Iowa Code should have resulted in

the jury being instructed without the “alternative course of action” language, we

find counsel breached an essential duty in failing to object when the older version

of the justification instruction was given, and prejudice resulted. The evidence

presented at trial was sufficient to prove Lorenzo Baltazar acted with the specific

intent to kill, and thus we reverse and remand for new trial. Further, should the

issue of the character evidence arise during the new trial, we also find the trial

court did not abuse its discretion in allowing only certain character evidence.

       I.      Background Facts and Proceedings

       On the afternoon of July 28, 2017, Des Moines police responded to reports

of gunshots on Oakland Avenue. Upon arrival, officers found one person, later

identified as Jeffrey “Pumba” Mercado, fatally wounded from apparent gunshot

wounds. Officers began searching for a car seen leaving the scene. When an

officer attempted to stop a matching car, it sped away but soon crashed in a

residential area. After a brief search of the area, officers captured Anthony Garcia

in a backyard and Lorenzo Baltazar in a drainage pipe. Officers also recovered a

handgun in the grass near the suspects’ crashed car.
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          An autopsy concluded Mercado’s death was a homicide as a result of a

gunshot wound to his back. The autopsy showed two bullets had passed through

Mercado, one entering his right buttocks and the other entering his right back.

          Lorenzo Baltazar proceeded to trial for Mercado’s death from March 26 to

April 2, 2018. Numerous witnesses testified, including several Des Moines police

officers and investigators as well as multiple civilians who heard gunshots or

responded to the shooting. Garcia also testified for the State, acknowledging he

agreed to a plea bargain based in part on providing truthful testimony. According

to Garcia, Lorenzo Baltazar had a previous disagreement with Mercado, calling

him “an enemy.” Garcia had driven Lorenzo Baltazar around in search of Mercado

in the days before the shooting. On the afternoon of July 28, 2017, Garcia picked

up Lorenzo Baltazar, and Lorenzo Baltazar asked him to drive to Oakland Avenue

to look for Mercado. As they neared Oakland, Lorenzo Baltazar pulled out a gun

and said he was going to fight Mercado if they found him. They saw Mercado

walking along the sidewalk on Oakland, and Garcia stopped the car a few feet

away from him. Lorenzo Baltazar said, “What’s up, Pumba,” and they started

arguing with Mercado. Mercado did not reply and began to run away, and Lorenzo

Baltazar exited the car and rapidly fired “four or five” times directly at Mercado.1

Mercado fell after being hit, and Lorenzo Baltazar told Garcia to drive them away.

Lorenzo Baltazar initially instructed Garcia to drive slowly to avoid drawing

attention. When the officer tried to stop them, Garcia panicked and sped away.




1
    Officers found five spent casings in the street after the shooting.
                                               4


          Lorenzo Baltazar also testified at his trial, stating he first learned of Mercado

about eighteen months before the shooting. Since then, both his uncle and his

cousin had been injured in altercations with Mercado, and Lorenzo Baltazar

suffered a broken arm in another altercation. More recently, Mercado had sent

messages to Lorenzo Baltazar through social media threatening him with physical

harm such that he believed his life was in danger. Lorenzo Baltazar eventually

decided “[t]o confront [Mercado] and pretty much ask him what did I do.” When

Garcia picked him up on the afternoon of July 28, 2017, Lorenzo Baltazar said he

wanted to go to Oakland Avenue to “confront” Mercado. When they encountered

Mercado on the street, Lorenzo Baltazar stepped out of the car and held the

handgun at his side in case Mercado rushed the car. He said, “Hey, Pumba,” to

draw his attention without appearing to be aggressive. Mercado looked at him,

adjusted his pants, and took a couple steps toward the car. As Mercado reached

for his pockets, Lorenzo Baltazar thought he saw a handle for a gun or knife in his

pocket.2      He said, “Pumba, we don’t need to do this.”              Mercado continued

advancing, and Lorenzo Baltazar—fearing he would be killed—panicked, raised

the handgun, and pulled the trigger multiple times. He claimed he did not intend

to hit Mercado but did intend “[t]o at least scare” him. “[S]hocked” and “confused”

that he had hit Mercado, he reentered the car and told Garcia to drive.

          Prior to trial, Lorenzo Baltazar sought to admit two videos showing

Mercado’s actions before the shooting, asserting they both depicted his violent

character. The court denied the request, but it allowed him to question two



2
    Police found a lighter, a phone, and a pair of pliers on Mercado after he died.
                                          5


detectives about the content of the videos. According to one detective, a store

surveillance video from the night before the shooting showed Mercado conversing

with another man and then “Mercado can be seen punching the guy a couple of

times.” According to another detective, a home surveillance video from minutes

before the shooting showed Mercado walking up to a car and “taking several

swings inside the vehicle at the individual sitting in the passenger seat,” causing

minor injuries to the passenger.

       The jury found Lorenzo Baltazar guilty of murder in the first degree, affirming

in a special interrogatory he was armed with a dangerous weapon. The court

sentenced him to life in prison. He now appeals.

       II.    Standard of Review

       We review ineffective-assistance-of-counsel claims de novo.            State v.

Schlitter, 881 N.W.2d 380, 388 (Iowa 2016). We review evidentiary rulings for

abuse of discretion. State v. Webster, 865 N.W.2d 223, 231 (Iowa 2015).

       III.   Ineffective Assistance—Jury Instructions on Justification

       Lorenzo Baltazar argues his counsel was ineffective for failing to object to

the jury instructions on his claim of justification. “Ineffective-assistance-of-counsel

claims require a showing by a preponderance of the evidence both that counsel

failed an essential duty and that the failure resulted in prejudice.” Schlitter, 881

N.W.2d at 388. “Ordinarily, ineffective assistance of counsel claims are best

resolved by postconviction proceedings to enable a complete record to be

developed and afford trial counsel an opportunity to respond to the claim. Yet, in

some instances, the appellate record can be adequate to address the claim on

direct appeal.” State v. Truesdell, 679 N.W.2d 611, 616 (Iowa 2004).
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        Lorenzo Baltazar was charged with murder in the first degree under Iowa

Code sections 707.1 and 707.2 (2017). He claimed the defense of justification,

specifically self-defense, and the jury received a series of instructions on

justification.   Instruction No. 20 says justification means, “A person may use

reasonable force to prevent injury to the defendant.” Instruction No. 21 says the

defendant was not justified if the State proves any of five elements, including, “An

alternative course of action was available to the defendant.”            Regarding an

alternative course of action, Instruction No. 25 says:

        [I]f a defendant is confronted with the use of unlawful force against
        him, he is required to avoid the confrontation by seeking an
        alternative course of action before he is justified in repelling the force
        used against him. However, there is an exception.
                If the alternative course of action involved a risk to his life or
        safety, and he reasonably believed that, then he was not required to
        take or use the alternative course of action to avoid the confrontation,
        and he could repel the force with reasonable force including deadly
        force.

        In 2017, Iowa enacted legislation with multiple changes affecting a

justification defense. See 2017 Iowa Acts ch. 69, §§ 37–44. Prior to the legislation,

the State could rebut a claim of justification by proving, “An alternative course of

action was available to the Defendant.” State v. Thornton, 498 N.W.2d 670, 673

(Iowa 1993); see also Iowa Code § 704.1 (2016). The 2017 legislation deleted the

“alternative course of action” language from the Iowa Code and added language

saying, “A person who is not engaged in illegal activity has no duty to retreat from

any place where the person is lawfully present before using force.” 2017 Iowa Acts

ch. 69, § 37 (codified at Iowa Code § 704.1(3)).

        The amendments to justification took effect July 1, 2017, prior to the July 28

shooting at issue here. See id. The amendments clearly allow the justification
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defense regardless of whether an alternative course of action was available. See

id. Nevertheless, Lorenzo Baltazar’s jury was erroneously instructed he could not

claim justification if the State proved an alternative course of action was available

to him. Because we see no strategic reason for his counsel to fail to object to this

erroneous instruction, his counsel breached an essential duty. See State v. Harris,

891 N.W.2d 182, 187–88 (Iowa 2017) (noting counsel may make a strategic choice

to not object to a jury instruction, but finding “no possible strategic reason for failing

to object” here).

       “Errors in jury instructions are presumed prejudicial unless ‘the record

affirmatively establishes there was no prejudice.’” State v. Murray, 796 N.W.2d

907, 908 (Iowa 2011) (quoting State v. Hanes, 790 N.W.2d 545, 551 (Iowa 2010)).

The State argues Lorenzo Baltazar suffered no prejudice because he was

“engaged in illegal activity” at the time of the shooting, he was not “lawfully present

before using force,” and he did not “notify a law enforcement agency about [his]

use of deadly force within a reasonable time period.” Iowa Code §§ 704.1(3),

.2B(1). Regardless of any additional changes to justification under 2017 Iowa Acts

chapter 69, the “alternative course of action” language submitted to the jurors was

clearly no longer appropriate. The jury should have been allowed to sort out the

evidence under the parameters of the amended statutory language to determine

whether Lorenzo Baltazar’s justification defense would still render a guilty verdict.

In light of Lorenzo Baltazar’s testimony, we cannot say the record affirmatively

establishes the jury would have rejected his justification defense without the

erroneous instructions. Because he has shown both breach of an essential duty
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and prejudice, he has proven ineffective assistance of counsel. See Murray, 796

N.W.2d at 908. Therefore, we reverse his conviction.

       IV.    Sufficiency of the Evidence—Specific Intent

       When we find prejudicial error at trial requiring reversal of a criminal

conviction, double-jeopardy principles prohibit a retrial unless the evidence

presented was sufficient to support the conviction. See State v. Dullard, 668

N.W.2d 585, 597 (Iowa 2003). Evidence is sufficient “to support a verdict when

the record reveals evidence that a rational trier of fact could find the defendant

guilty beyond a reasonable doubt. In making this determination, ‘[w]e view the

evidence in the light most favorable to the verdict,’ including all reasonable

inferences that may be deduced from the record.” Truesdell, 679 N.W.2d at 615

(quoting State v. Gay, 526 N.W.2d 294, 295 (Iowa 1995)).

       Lorenzo Baltazar acknowledges he shot Mercado and caused his death,

but he argues the evidence is insufficient to prove he acted with specific intent to

cause Mercado’s death. See State v. Serrato, 787 N.W.2d 462, 469 (Iowa 2010)

(stating one element of murder in the first degree is acting with “the specific intent

to kill”). “[A] trier of fact may infer intent from the normal consequences of one’s

actions.” State v. Evans, 672 N.W.2d 328, 331 (Iowa 2003).

       The physical evidence and testimony of numerous witnesses, including

some of Lorenzo Baltazar’s own testimony, is more than sufficient to prove the

specific intent to kill. Lorenzo Baltazar knew Mercado and knew Mercado had

threatened him and his family. He sought to confront Mercado while holding a

handgun. He fired multiple shots, striking Mercado twice. He immediately fled the

scene and ultimately hid in a drain pipe to avoid capture. While he claims he
                                            9


merely fired rapidly with no intent to kill, the jury is entitled “to believe or disbelieve

the testimony of witnesses as it chooses and give such weight to the evidence as

in its judgment the evidence was entitled to receive.” State v. Blair, 347 N.W.2d

416, 420 (Iowa 1984). Therefore, the evidence is sufficient for the jury to conclude

he acted with the specific intent to kill, and we remand for new trial.

       V.         Character Evidence of the Victim

       Because this case must be retried, we consider the parties’ challenges to

the admission of character evidence regarding Mercado. See State v. Dudley, 766

N.W.2d 606, 615 (Iowa 2009) (addressing “other issues in this appeal that are

likely to arise upon remand”). Lorenzo Baltazar sought to admit two surveillance

videos, one showing Mercado punching a man in a convenience store the night

before his death and the other showing Mercado punching a passenger in a car

minutes before his death.         Lorenzo Baltazar asserted both videos showed

Mercado’s violent character. The court refused to admit the videos but allowed

two detectives to testify about their contents. Both parties argue the court abused

its discretion.

       “Evidence of a homicide victim’s prior violent or turbulent character is

ordinarily immaterial and not admissible at trial. An exception to this general rule

exists where the accused asserts that he or she acted in self-defense and the

slightest supporting evidence is introduced.” State v. Shearon, 449 N.W.2d 86, 87

(Iowa Ct. App. 1989). “Then the violent, quarrelsome, dangerous or turbulent

character of the deceased may be shown, both by evidence of his or her reputation

in that respect and by witnesses who can testify from an actual knowledge of the

victim’s character.” State v. Jacoby, 260 N.W.2d 828, 837 (Iowa 1977). “[S]pecific
                                         10


acts to prove the victim’s violent, dangerous, turbulent or quarrelsome character,

even though unknown to the defendant, are admissible if so closely related to the

fatal event as to constitute part of the res gestae.” Id. at 838; see also State v.

Dunson, 433 N.W.2d 676, 681 (Iowa 1988) (permitting introduction of specific

events as character evidence of an assault victim even when those events

occurred after the assault).

       In ruling on the character evidence during trial, the court said:

       [The detectives] can say what [they] saw, but I think [the videos are]
       too prejudicial because it allows the jury to speculate, and it allows
       also—it’s unfair to the State in that it gives you no opportunity to
       explain those two events whatsoever.
              It’s confusing to the jury. It’s isolated. You don’t know exactly
       what was going on, especially when there’s no sound to it. So I have
       a problem with that.
              However, they can describe what they saw in the video, and
       say “Yeah, we saw him punching and, therefore, we think he’s
       violent.”

       Lorenzo Baltazar claimed self-defense and testified in support of his

defense.    Accordingly, he has met the threshold to introduce evidence of

Mercado’s violent character. Shearon, 449 N.W.2d at 87. The State argues the

facts and the law do not compel the court to admit this character evidence.

However, we review the court’s decision for abuse of discretion. See id. We find

no abuse of discretion in allowing the detectives to testify about Mercado’s actions

in the videos.

       Regarding the videos themselves, “even otherwise relevant admissible

evidence is inadmissible ‘if its probative value is substantially outweighed by the

danger of unfair prejudice.’” State v. Webster, 865 N.W.2d 223, 243 (Iowa 2015)

(quoting State v. Huston, 825 N.W.2d 531, 537 (Iowa 2013)); see also Iowa R.
                                         11


Evid. 5.403 (“The court may exclude relevant evidence if its probative value is

substantially outweighed by a danger of one or more of the following: unfair

prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or

needlessly presenting cumulative evidence.”). The videos add little probative

value beyond the detectives’ testimony.        They come from fixed surveillance

cameras that obscure many visual details, such as the person inside the car who

Mercado apparently punches. They have no sound and provide no context for

Mercado’s actions. Therefore, we also find no abuse of discretion in excluding the

videos.

       VI.    Conclusion

       Lorenzo Baltazar’s counsel was ineffective for failing to object to erroneous

jury instructions on justification. Because the evidence presented at trial was

sufficient to prove he acted with the specific intent to kill, we reverse and remand

for new trial. Should the issue arise in the new trial, we find no abuse of discretion

in the trial court’s decision to exclude videos of Mercado’s actions but to allow

detectives to testify about the contents of the videos.

       REVERSED AND REMANDED FOR NEW TRIAL.
