                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-1888
                            Filed November 21, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

SEAN MICHAEL FREESE,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, John D. Telleen,

Judge.



      Sean Freese appeals two convictions of first-degree murder and the

sentences imposed. CONVICTIONS AFFIRMED; SENTENCES VACATED IN

PART AND REMANDED WITH DIRECTIONS.



      Mark C. Smith, State Appellate Defender, and Robert P. Ranschau,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Darrel Mullins, Assistant Attorney

General, for appellee.




      Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
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MULLINS, Judge.

       Sean Freese appeals two convictions of first-degree murder stemming from

the deaths of his parents, Kevin and Donna Freese, and the sentences imposed.

He challenges the sufficiency of the evidence to support his convictions and

contends the district court erred in ordering him to pay a law-enforcement-initiative

surcharge on each of the counts.

I.     Background Facts and Proceedings

       Upon the evidence presented at trial, a reasonable jury could make the

following factual findings. In October 2016, Sean was living with his parents in

Davenport. On October 4, Sean and his girlfriend, Ellyott, hung out at the Freese

residence. Kevin and Donna were present in the home at this time. Ellyott testified

the atmosphere in the home was generally positive on this date, but there were

underlying issues concerning Sean’s schooling and his parents’ desire that he

move out. At approximately 11:22 p.m., Sean and Ellyott left the residence and

got into Sean’s vehicle, which was parked in the street in front of the Freese

residence,1 for the purpose of transporting Ellyott home. They departed shortly

thereafter. After stopping at a fast food restaurant, Sean dropped Ellyott off at

home around midnight.

       At 11:57 p.m., Donna text messaged Sean and told him “to get home.” At

12:03 a.m. on October 5, Donna texted, “Doors r locked.” The surveillance footage

shows Sean returned home seconds before 12:07 a.m. Less than a minute later,




1
  One of the Freeses’ neighbors maintains surveillance cameras at his residence to record
the area in the front of his home at all times. One of the surveillance camera’s views
includes the area in front of the Freese home where Sean regularly parks his vehicle.
                                           3


Sean texted Donna, “Im here.” Donna responded, “You’re late.” Sean responded,

“Yea I know. I have school work to do. Unlock the door plz.” Donna responded,

“U r getting up in the morning and doing good school work.” Over the next several

minutes, Donna and Sean argued via text message about Sean’s schedule, Donna

taking issue with Sean “staying . . . up all night and sleeping ‘til noon,” and Sean

retorting that getting up early makes him upset and “not wanting to do anything.”

Donna advised Sean, “If u want to live here u r going to keep normal hours. I’m

tired of being sleep deprived so u can do what u want when u want” and “U need

to learn to do what’s asked of u not just what u want to do.”

       The surveillance camera footage shows that at roughly 3:40 a.m., Sean2

approached his vehicle from the direction of the home, opened the back hatch of

the vehicle, removed a long dark object from the vehicle, and proceeded back to

the house with it. Sean’s best friend testified at trial that Sean often kept his AR-

15-type rifle secured in a case in his vehicle.

       At approximately 3:55 a.m., one of the Freeses’ neighbors was awoken by

what she thought were gunshots coming from the direction of the Freese

residence, which is located directly behind her home. At this time, Sean’s vehicle

was still parked in front of the Freese residence. The neighbor looked out her

bedroom window which faces the back of the Freese residence and noticed most

of the lights in the Freese home were illuminated. The neighbor monitored the




2
  Although the surveillance footage is blurry and does not positively identify Sean, upon
the other evidence presented, a reasonable jury could conclude that Sean is the person
depicted in the footage at all times.
                                         4


Freese residence for several minutes and observed someone calmly moving about

the house.

       The surveillance footage shows that at roughly 4:07 a.m., Sean returned to

his vehicle, placed something in its rear, and then got in the vehicle and drove

away. Sean returned to the Freese home about a minute later and parked in the

driveway; he departed from the residence in his vehicle again at 4:13 a.m. Sean

returned to the home at 4:16 a.m., parked his vehicle in front of the home, exited

the vehicle and proceeded in the direction of the Freese residence. At 4:18 a.m.,

Sean returned to the vehicle and drove away. At 4:26 a.m., Sean, alone and in his

vehicle, visited a nearby fast food restaurant’s drive through. Sean returned to the

Freese residence at 4:41 a.m. At this time, Sean began to approach the home,

but then returned to the vehicle, opened the back hatch, removed a long item, and

proceeded to the residence with it.

       At approximately 4:46 a.m., Sean called 911. He reported he recently left

his house to go for a drive and stop by a fast food restaurant, pursuant to which he

was gone from his home for about an hour and a half. When he returned home,

he found his gun lying on the floor, noticed the back door partially open, and then

went upstairs and found both of his parents shot and not breathing. Sean noted

he was not concerned that an assailant was in the home.

       Officers were promptly dispatched to the residence. Upon arrival at 4:53

a.m., officers discovered Sean sitting on the front steps of the home, crying. Sean

advised the first officer on scene that his parents were located in an upstairs

bedroom. Officers entered the home, and observed an AR-15-style semiautomatic

rifle lying on the floor near the stairs leading to the second level of the home. The
                                         5


firearm belonged to Sean. Located near the rifle was a black rifle case, laying

open, which contained an empty rifle magazine. Officers proceeded to the master

bedroom and discovered Donna lying on the bed and Kevin lying face down on the

floor, both having sustained multiple gunshot wounds. Subsequent autopsies

identified Kevin and Donna’s cause of death as multiple gunshot wounds and

revealed Kevin sustained three or four3 gunshot wounds and Donna sustained five.

The bedroom was riddled with shell casings. Sean was transported to the local

police station for questioning and was interviewed by a detective later that morning.

At the conclusion of the interview, the detective advised Sean to consider himself

under arrest.

       At 7:19 p.m., Sean called a close friend from jail. During this call, Sean

advised, “We got in a huge argument and I snapped, that was it.” Sean explained

the argument was “about them and their rules and everything they’re putting me

through,” noting “they were treating [him] poorly last night,” and he “just couldn’t

take it.” Sean also explained to his friend that he was originally going to take his

own life, but then decided to go get his gun, shoot his parents, and then shoot

himself, but only “half of that worked out.” Sean called his friend again on October

6 at 8:42 a.m. During this call, Sean repeated that he “just snapped.”

       The State charged Sean with two counts of first-degree murder. The matter

proceeded to a jury trial. At the close of the State’s case-in-chief, Sean moved for

judgment of acquittal as to both counts, arguing the evidence was insufficient to

show he acted with malice aforethought, deliberately, premeditatedly, or with the


3
  The medical examiner testified two of the gunshot wounds may have been caused by a
single projectile.
                                          6


specific intent to kill. The court denied the motion. The jury found Sean guilty as

charged. Sean appealed following the imposition of sentence.

II.    Standard of Review

       Sean challenges the sufficiency of the evidence to support his convictions

and contends the district court erred in ordering him to pay a law-enforcement-

initiative surcharge on each of the counts. Challenges to the sufficiency of the

evidence are reviewed for corrections of errors at law. State v. Kelso-Christy, 911

N.W.2d 663, 666 (Iowa 2018). The court views “the evidence ‘in the light most

favorable to the State, including all reasonable inferences that may be fairly drawn

from the evidence.’” State v. Ortiz, 905 N.W.2d 174, 180 (Iowa 2017) (quoting

State v. Huser, 894 N.W.2d 472, 490 (Iowa 2017)). All evidence is considered, not

just that of an inculpatory nature. See Huser, 894 N.W.2d at 490. “[W]e will uphold

a verdict if substantial evidence supports it.” State v. Wickes, 910 N.W.2d 554,

563 (Iowa 2018) (quoting State v. Ramirez, 895 N.W.2d 884, 890 (Iowa 2017)).

“Evidence is 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.’” Id. (quoting Ramirez, 895 N.W.2d at 890). We likewise review non-

constitutional challenges to a sentence as illegal for correction of errors at law.

Noll v. Iowa Dist. Ct., ___ N.W.2d ___, ___, 2018 WL 5090781, at *2 (Iowa 2018).

III.   Analysis

       A.     Sufficiency of the Evidence

       The State bears the burden of proving every element of the charged crimes.

State v. Armstrong, 787 N.W.2d 472, 475 (Iowa Ct. App. 2010). Sean does not

challenge any of the jury instructions employed in his trial. As such, the jury
                                          7


instructions are the law of the case for purposes of reviewing the sufficiency of the

evidence. See State v. Banes, 910 N.W.2d 634, 639 (Iowa Ct. App. 2018).

       The jury was instructed the State was required to prove the following

elements of murder in the first degree as to the deaths of both Donna and Kevin:

               1. On or about October 5, 2016, the defendant shot [the
       victim].
               2. [The victim] died as a result of being shot.
               3. The Defendant acted with malice aforethought.
               4. The Defendant acted willfully, deliberately, premeditatedly
       and with a specific intent to kill [the victim].

Sean does not challenge the sufficiency of the evidence as to whether he shot his

parents or his parents died as a result. He only challenges the sufficiency of the

evidence on the third and fourth elements of the crimes.

       On the element of malice aforethought, the jury was instructed as follows:

               “Malice” is a state of mind which leads one to intentionally do
       a wrongful act to the injury of another out of actual hatred, or with an
       evil or unlawful purpose.
               Malice may be established by evidence of actual hatred, or by
       proof of a deliberate or fixed intent to do injury.
               Malice may be found from the acts and conduct of the
       defendant, and the means used in doing the wrongful and injurious
       act.
               Malice requires only such deliberation that would make a
       person appreciate and understand the nature of the act and its
       consequences, as distinguished from an act done in the heat of
       passion.
               “Malice aforethought” is 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.

As to the fourth element, the jury was instructed:

              “Willful” means intentional or fixed by design or purpose and
       not accidental.
              “To deliberate” is to weigh in one’s mind, to consider, to
       contemplate, or to reflect.
              “Premediate” is to think or ponder upon a matter before acting.
                                         8


               Deliberation and premeditation need not exist for any
        particular length of time before the act.

The jury was additionally instructed the following:

               If a person has the opportunity to deliberate and uses a
        dangerous weapon against another resulting in death, you may, but
        are not required to, infer that the weapon was used with malice,
        premeditation and specific intent to kill.
               ....
               Malice aforethought may be inferred from the Defendant’s use
        of a dangerous weapon.
               ....
               You are instructed that a firearm is, by law, a dangerous
        weapon.

        Sean argues the evidence on the third and fourth elements was lacking

because the atmosphere in the Freese home was calm around the time of the

commission of the crimes and the fact that he “just snapped” defeats any finding

that he acted with malice aforethought, deliberately, premeditatedly, or with the

specific intent to kill.

        The evidence shows that between around midnight and 3:40 a.m. on

October 5, 2016, Sean and his parents got into a “huge argument.” As a result of

this argument, Sean “snapped, that was it,” he “just couldn’t take it.” Sean then

contemplated. He thought about taking his own life, but then he decided to go get

his gun and shoot his parents. Sean exited the home to retrieve his gun from his

car at 3:40 a.m. and then returned to the home. Sean shot his parents in their

bedroom fifteen minutes later.

        Applying the jury instructions as the law of the case and viewing the

evidence in the light most favorable to the State, we find the evidence was

sufficient to show Sean acted with malice aforethought, willfully, deliberately,

premeditatedly, and with the specific intent to kill. The jury was allowed to infer
                                         9


malice aforethought, premeditation, and a specific intent to kill upon the undisputed

fact that Sean used a firearm against his parents.           Those inferences are

strengthened by the fact that Sean inflicted eight or nine gunshot wounds between

his parents. Sean’s statements in his jailhouse phone call to a close friend show

that Sean contemplated his actions beforehand, made the choice to shoot his

parents, retrieved his firearm from his vehicle, and then effectuated his choice.

       Because the evidence was sufficient to support the challenged elements of

the crimes of first-degree murder, we affirm Sean’s convictions.

       B.     Sentencing

       Sean contends the district court erred in ordering him to pay a law

enforcement initiative surcharge on each of the counts. The State concedes error.

See Iowa Code § 911.3 (2016).          We vacate the law-enforcement-initiative

surcharges and remand for entry of a corrected sentencing order.

IV.    Conclusion

       We affirm Sean’s convictions of murder in the first degree. We vacate the

law-enforcement-initiative surcharges and remand for entry of a corrected

sentencing order.

       CONVICTIONS AFFIRMED; SENTENCES VACATED IN PART AND

REMANDED WITH DIRECTIONS.
