                    IN THE COURT OF APPEALS OF IOWA

                                  No. 14-0423
                            Filed February 25, 2015


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DEVON ALLEN ANDERSON,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, Todd A. Geer,

Judge.



      Devon Anderson appeals from a conviction of intimidation with a

dangerous weapon. AFFIRMED.




      Mark C. Smith, State Appellate Defender, and Nan Jennisch, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Tyler J. Buller, Assistant Attorney

General, Thomas J. Ferguson, County Attorney, and Peter Blink, Assistant

County Attorney, for appellee.



      Considered by Vogel, P.J., and Doyle and McDonald, JJ.
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DOYLE, J.

       Devon Anderson appeals from a conviction of intimidation with a

dangerous weapon.       He contends the evidence was insufficient to show he

threatened to shoot a dangerous weapon in or at an occupied vehicle or in an

assembly of people. We affirm.

I.     Background Facts and Proceedings.

       At around 10:30 p.m. on August 9, 2013, shots rang out as a group of

people were leaving a house in the 800 block of Logan Avenue in Waterloo. The

gunfire came from a passing vehicle. Devon Anderson was identified as the

shooter.

       Later that night, the Black Hawk Consolidated Communications Center

received a 911 call from an individual identifying herself as “Brittany.” According

to the dispatcher, the caller was “very urgent” and “seemed scared to be

involved.” The caller stated, “Okay, there’s a crazy white dude carrying a gun,

pointing at cars and everything on Newell Street. . . . There’s violence going on,

there’s screamin’ outside.” The caller said she “heard it was the same dude that

did the stuff on Logan.”     She further said the individual was threatening his

girlfriend and “put it in her face.” The caller identified the individual with the gun

as Devon Anderson and his girlfriend as Alicia. The caller gave directions to a

house in the 1800 block of Newell Street.

       Waterloo police officers responded to the call and arrived at the house at

approximately 12:30 a.m.       An officer observed four or five people standing

outside on the front porch and a person standing by a vehicle in the driveway.

The vehicle matched the description given by dispatch. Anderson was standing
                                          3


at the bottom of the steps to the house. An officer observed a gun underneath

the steps. Anderson was asked to step away and was detained. Another officer

retrieved the gun, which was later determined to be the same gun fired during the

drive-by shooting on Logan Avenue.

       Anderson was charged with two counts of intimidation with a dangerous

weapon with intent, in violation of Iowa Code sections 708.6 and 902.7 (2013)

(counts I and V),1 one count of possession of a firearm as a felon, in violation of

section 724.26 (count II), one count of carrying a weapon, in violation of section

724.4(1) (count III), and one count of going armed with a dangerous weapon with

intent, in violation of section 708.8 (count IV). Anderson was subject to habitual

offender sentencing enhancements under sections 902.8 and 902.9.               A jury

found Anderson guilty of all charges and he was subsequently sentenced to a

period of imprisonment.

       Anderson appeals. His sole challenge is to the sufficiency of the evidence

supporting count V, intimidation with a dangerous weapon with intent.2

II.    Standard of Review

       We review challenges to the sufficiency of the evidence for correction of

errors at law.    State v. Edouard, 854 N.W.2d 421, 431 (Iowa 2014).              We

“consider all of the record evidence viewed in the light most favorable to the

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


1
  Count I was based on the Logan Avenue drive-by shooting and count V was based on
the Newell Street incident.
2
   To preserve error on appeal, the defendant must make a motion for judgment of
acquittal. See State v. Truesdell, 679 N.W.2d 611, 615 (Iowa 2004). Our review is then
limited to the specific grounds and issues argued in this motion. See id. The State
concedes error was preserved on this claim by Anderson’s motion for judgment of
acquittal at trial.
                                           4

evidence.”     State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012) (internal

quotation marks omitted). “However, it is the State’s burden to prove every fact

necessary to constitute the crime with which the defendant is charged, and the

evidence presented must raise a fair inference of guilt and do more than create

speculation, suspicion, or conjecture.” State v. Brubaker, 805 N.W.2d 164, 171

(Iowa 2011) (internal quotation marks omitted). “We will uphold a verdict if it is

supported by substantial evidence.” State v. Jacobs, 607 N.W.2d 679, 682 (Iowa

2000).     “When a rational fact finder is convinced by the evidence that the

defendant is guilty beyond a reasonable doubt, the evidence is substantial.”

Brubaker, 805 N.W.2d at 171.

III.     Discussion

         The relevant portion of Iowa Code section 708.6 states:

                A person commits a class “C” felony when the person, with
         the intent to injure or provoke fear or anger in another, shoots . . .
         or discharges a dangerous weapon at, into, or in a . . . car . . .
         occupied by another person, or within an assembly of people, and
         thereby places the occupants or people in reasonable
         apprehension of serious injury or threatens to commit such an act
         under circumstances raising a reasonable expectation that the
         threat will be carried out.

With regard to count V, the only count germane to this appeal, the jury was

instructed the State would have to prove the following elements of intimidation

with a dangerous weapon with intent:

         1.     On or about the 10th day of August, 2013, the defendant
         threatened to shoot a dangerous weapon:
                (a) at or in a vehicle which was occupied by another; or
                (b) within an assembly of people.
         2.     The firearm was a dangerous weapon, as explained in
         Instruction Nos. 26 & 27.
         3.     The defendant made the threat under circumstances raising
         a reasonable expectation that the threat would be carried out.
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       4.     The occupants of the vehicle or the assembly of people
       actually experienced fear of serious injury, and the fear was
       reasonable under the existing circumstances.
       5.     The defendant threatened to shoot a dangerous weapon
       with the specific intent to injure or cause fear or anger in the
       occupants of the vehicle or assembly of people.

See Iowa Criminal Jury Instruction 800.13. The jury was also instructed “within

an assembly of people” means “into, through or within two or more persons at the

same place.”     See State v. Bush, 518 N.W.2d 778, 780 (Iowa 1994); Iowa

Criminal Jury Instruction 800.14.1.

       Anderson’s appeal concerns only paragraph one of the marshalling

instruction. Specifically, he contends there was insufficient evidence “to show he

threatened to shoot a dangerous weapon in or at an occupied vehicle or in an

assembly of people.” Under paragraph one, the State must prove one of two

alternatives: that (1) Anderson threatened to shoot a dangerous weapon “in or at

an occupied vehicle” or that (2) Anderson threatened to shoot a dangerous

weapon “within an assembly of people.” We focus our analysis on the second

alternative,3 paragraph 1(b) of the marshalling instruction—whether Anderson

threatened to shoot a dangerous weapon “within an assembly of people.”

       At the conclusion of the State’s presentation of evidence, Anderson

moved for judgment of acquittal arguing, with regard to count V, that “[t]here is

3
  With regard to the first alternative, paragraph 1(a) of the marshalling instruction, the
evidence in the record establishes Anderson was outside when he brandished the
weapon on Newell Street. He was not in a vehicle at the time. Although the evidence
establishes Anderson pointed the gun at vehicles, there is insufficient to establish the
vehicles were occupied. Brittany, the 911 caller, said Anderson was “carrying a gun,
pointing at cars and everything on Newell Street.” This is not enough to establish the
cars were occupied. Furthermore, Anderson’s girlfriend, Alicia, testified she and
Anderson were outside during their confrontation. We therefore agree with Anderson
that the evidence was insufficient to show he threatened to shoot a dangerous weapon
in or at an occupied vehicle, as the State was required to prove under paragraph 1(a) of
the marshalling instruction.
                                        6


absolutely zero, zero evidence that there was a threat . . . within an assembly of

people.”   At the close of all the evidence, Anderson renewed his motion for

judgment of acquittal. As to count V, he claimed,

      [T]here is not sufficient evidence to generate a jury question as to
      whether element 1 of Count V, that Devon Anderson threatened to
      shoot anyone with a dangerous weapon. There’s absolutely no
      evidence presented as to that, no evidence presented . . . that it
      was done within an assembly of people.

      The statute requires an action within an “assembly of people.” Iowa Code

§ 708.6. The “within an assembly of people” language has been interpreted to

mean “into or through two or more persons at the same place.” State v. Ross,

845 N.W.2d 692, 701 (Iowa 2014). To meet the statutory requirement the State

was required to prove, at a minimum, that Anderson threatened to shoot the gun

into or through two or more persons at the same place.

      The jury heard the 911 call, during which the caller, Brittany, stated

Anderson was pointing a gun “at cars and everything on Newell Street.” Brittany

also stated Anderson was threatening his girlfriend, Alicia. Brittany said nothing

about a group of people. Officers who arrived on the scene after the incident

testified there were a number of people standing on the porch at the Newell

Street residence. Another person was in the driveway and Anderson was at the

bottom of the stairs. This evidence, standing alone, is insufficient to establish

Anderson threatened to shoot a weapon within an assembly of people.

      Anderson’s girlfriend, Alicia, testified at trial during presentation of

evidence on behalf of the defense. On direct examination, Alicia testified she

was Anderson’s girlfriend but had broken up with him a week or two before the

August 9, 2013 incident: “It was, like, an on and off thing.” They reunited as
                                         7


boyfriend/girlfriend sometime after the incident.     Alicia testified that on the

evening of August 9, 2013, she went to Anderson’s house and got mad when she

saw him with two other girls, Sayda and Alexa. Alicia tried to fight Sayda, but

Anderson put Alicia back in her car.      Alicia left and drove over to Brittany’s

house. Alicia and Brittany were best friends at the time. Brittany and Alicia were

driving back to Anderson’s house when they saw Anderson, Sayda, Alexa, and

another person, Willie Mac, drive by in another vehicle.       Alicia assumed the

foursome was headed to Alexa’s house on Newell Street, so she and Brittany

drove to that residence. They parked up a hill about two blocks from the house.

Alicia testified she got out of the car with a golf club and walked down the hill to

Alexa’s house. Brittany drove the car closer to the house, parked, and stayed in

the car. Alicia testified Anderson, Sayda, Alexa, Alexa’s mother, and a few other

persons were outside the house. Alicia confronted Anderson. She testified, “We

was arguing again and it’s like he was backing up the hill and I was following him,

so we was basically moving all the way up the hill.” During her testimony, she

denied that Anderson threatened her and denied he had a firearm. Alicia said

she left after about ten minutes of arguing. She testified she “got in the car and I

said I was gonna call the police and I said I was gonna lie and say he had a gun.

But I didn’t want to do it so I told Brittany to do it for me and she did and we was

on our way to her house.”

       On cross-examination Alicia testified as follows:

             Q. And the group at Newell Street, you said that Sayda was
       there? A. Yes.
             Q. Okay. And Alexa was there? A. Yes.
             Q. And Willie Mac was there? A. Yes.
             Q. And there were some other people? A. Yes.
                                         8


             Q. Okay. And there were just kind of a gob of people
      outside, right? A. Yes. Well, Sayda, Alexa and her mom, they was
      there but they were, like, on the porch inside, kind of, like hanging
      out the door.
             Q. Okay. But there were other people maybe around where
      you and Devon were? A. Yeah.
             Q. Okay. And who was that? A. I don’t know them.
             Q. Okay. So there were people you don’t know? A. Yeah.
             Q. But they were kind of— A. They were like, they got out
      of the car, pulled up, got out of the car and was walking through the
      grass to the house.
             Q. And so if someone was standing back and looked, it
      would just look like a big group of people, right? A. Yeah, kind of.
             Q. And you and Devon were in that group of people and
      arguing with each other? A. No, we wasn’t arguing no more. I was
      arguing with Alexa’s mom.
             Q. Okay. You were arguing but everybody was still in that
      group? A. Yeah.
             Q. So if somebody stood back and said, look at that group
      of people, that would describe all the people we just talk[ed] about
      and that includes you and that includes [Anderson]? A. Yes.
             Q. Okay. And eventually you got—so you stopped talking to
      [Anderson] or stopped arguing with him and you switched your
      argument with somebody else? A. Yes.

Alicia further testified she was in the car with Brittany when the 911 call was

made and that she told Brittany some things to say.

      At times, it is difficult to sift through differing evidence concerning chaotic

and confusing events involving numerous people—who may have varying

perspectives and motives. Though Brittany’s and Alicia’s testimony conflict, the

jurors were free to accept or reject any part of each witness’s testimony and to

give the testimony the weight they thought it should receive.         See State v.

Shanahan, 712 N.W.2d 121, 135 (Iowa 2006). “The function of the jury is to

weigh the evidence and place credibility where it belongs.” Id. (internal quotation

marks removed).
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          “[A] court ‘faced with a record of historical facts that supports conflicting

inferences must presume—even if it does not affirmatively appear in the record—

that the trier of fact resolved any such conflicts in favor of the prosecution, and

must defer to that resolution.’” State v. Bentley, 757 N.W.2d 257, 263 (Iowa

2008) (quoting Jackson v. Virginia, 443 U.S. 307, 326 (1979)). Such is the case

here. Considering the record before the jury, we conclude the jury could have

reasonably believed Anderson threatened to shoot a dangerous weapon within

an assembly of people at the Newell Street address. Through Brittany’s 911 call,

the jury could have reasonably believed Anderson threatened to shoot Alicia with

a dangerous weapon, a gun. Through Alicia’s testimony, the jury could have

reasonably believed Anderson made the threat within an assembly of people at

the Newell Street address.

          We therefore affirm the judgment and sentence entered following

Anderson’s conviction on count V of intimidation with a dangerous weapon with

intent.

          AFFIRMED.
