                    IN THE COURT OF APPEALS OF IOWA

                                   No. 13-1949
                             Filed October 29, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ANDREW SCOTT YERHART,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Lee (South) County, John G. Linn,

Judge.



      Andrew Scott Yerhart appeals from his conviction after jury trial of

attempted murder, going armed with intent, and harassment in the first degree.

AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Rachel C. Regenold,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Bridget A. Chambers, Assistant

Attorney General, Michael Short, County Attorney, and Bruce C. McDonald,

Assistant County Attorney, for appellee.



      Considered by Vaitheswaran, P.J., McDonald, J., and Goodhue, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
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GOODHUE, S.J.

        Andrew Scott Yerhart appeals from his conviction after jury trial of

attempted murder, going armed with intent, and harassment in the first degree.

   I. Background Facts and Proceedings

        The State filed charges after an incident that occurred on August 10,

2013.    The three charges levied were initially filed separately but were later

consolidated. A supplemental trial information was filed charging Yerhart with

attempted murder in count one, going armed with intent in count two, and

harassment in the first degree in count three. A jury trial was held from October

22 to 25, 2013, and Yerhart was convicted of all three counts. On December 9,

2013, he was sentenced accordingly.

        Yerhart and his victim, Michael Rupp, were rivals for the attention and

affection of twenty-four year old Amanda Steele. Steele and Rupp had been

engaged for two years, but broke up some time in 2011. Yerhart and Steele

began a relationship around Christmas of 2012 and began living together after

Valentine’s Day of 2013. Steele became pregnant by Yerhart soon thereafter.

The relationship between Yerhart and Steele deteriorated, and she moved out of

Yerhart’s house, and Rupp and Steele renewed their relationship.

        Steele and Yerhart retained a relationship even after she moved out.

Yerhart thought they were trying to get back together, but Steele stated her only

interest was the future of the child. She testified she had not been interested in

reunification, but her actions did not make that clear to Yerhart. Yerhart was

angry with Rupp and sometime after July 8 told Steele he was going to find Rupp

and shoot him. Yerhart told Steele to stay away from Rupp.
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      In the early evening of August 10, 2013, Rupp had been fishing in the Des

Moines River and was returning to the Red Wing access when he observed

Yerhart assisting another boat’s occupants at the access. Yerhart began yelling

at Rupp, “Stay away from her,” “I’ll kill you,” and “I could have got you before.”

Yerhart challenged Rupp to come in off the water and finish it. Witnesses at the

ramp also heard Yerhart threaten Rupp and heard him say Rupp was “a dead

man” and that “he’d get a chance one of these days.” Rupp called 911 for

assistance so he could land his boat without a confrontation, but by the time

police arrived Yerhart was gone.

      Yerhart had left the Red Wing access in a truck with two other men. On

the way home they stopped and talked to Yerhart’s neighbor, Joe Cass. Yerhart

told Cass that the fight was on and he was going to “kick someone’s ass.” When

Cass asked who, Yerhart responded “down at Red Wing I seen Mike.” Ten or

fifteen minutes later Yerhart came back and pulled up on his four wheeler. Cass

noted that Yerhart had a gun. Cass cautioned Yerhart not to get in trouble.

      Rupp had docked his boat and started toward his home in his truck when

he saw Yerhart coming toward him on his four wheeler. Yerhart turned around

and pulled up alongside Rupp’s truck and yelled at him that they needed to talk.

Rupp continued toward his home, but in his rearview mirror he saw the four

wheeler stop. He heard Yerhart curse him, saw a flash, and heard a bang. The

back window of Rupp’s truck was shattered. He sped towards home and soon

felt the blood running down the back of his neck and shoulders. Steele arrived at

Rupp’s home soon after Rupp. A 911 call was being made when she arrived.
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         Law enforcement responded to the 911 call and observed Rupp being

loaded in an ambulance. An officer observed Rupp’s wound. There was a bullet

hole in the back window of Rupp’s pickup and the headrest on both the front and

back driver’s-side seat. A bullet fragment was found on the right driver’s-side

floor. Rupp underwent surgery to remove a bullet fragment and was hospitalized

for three days.

         Yerhart testified substantially as set out, insisted he only wanted to talk to

Rupp, and denied that he intended to kill or injure him. He denied shooting at

anything specific besides the truck. Yerhart testified, “I pulled out my pistol and

told him to stop one more time, and he didn’t. And I—I shot the truck. Just

pointed it and pulled the trigger.” Yerhart testified he was familiar with guns and

had practiced shooting at targets. He further testified he had used the same .357

pistol that he used to shoot at the pickup to hunt deer.

         Yerhart claims ineffective assistance of counsel because of his counsel’s

failure to make an objection to what he contends was inadmissible opinion

evidence, inadmissible bad acts, and prosecutorial misconduct.

   II. Standard and Scope of Review

         Claims of ineffective assistance of counsel raise constitutional issues and

are therefore reviewed de novo. State v. Brubaker, 805 N.W.2d 164, 171 (Iowa

2011).     Such claims are reserved for postconviction-relief proceedings when

challenged actions implicate trial tactics or strategy.        State v. Rubino, 602

N.W.2d 558, 563 (Iowa 1999). But such claims will be resolved on direct appeal

if the record is adequate. Id.
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   III. Error Preservation

      Ineffective-assistance-of-counsel claims are an exception to the general

rule of error preservation. State v. Lucas, 323 N.W.2d 228, 232 (Iowa 1982).

Such claims need not be raised before the trial court. Id.

   IV. Discussion

      A. Counsel’s Failure to Object to Inadmissible Opinion Evidence

      Yerhart’s counsel’s efforts were directed towards establishing that

attempted murder and going armed with intent were overcharges. Further record

is not required to ascertain defense counsel’s strategy, as it was set out in both

his opening and closing statement. Yerhart’s counsel’s strategy was to attack

the specific intent element of the charges filed. On cross-examination, Yerhart’s

counsel brought out that the arresting officer, Deputy Stacy Weber, told Yerhart

he was going to charge him with willful injury. In redirect, the officer stated he

had in fact charged attempted murder, going armed with intent, and harassment

in the first degree.   On re-cross the following exchange took place between

defense counsel and Weber:

              Q. Is it a fair statement that you thought attempted murder
      was the appropriate charge because of the severity of the injuries
      to Mr. Rupp? A. Yes, sir.
              Q. Not because of any action of Mr. Yerhart that you had
      learned at a later date? A. Well, when you shoot someone
      anywhere remotely close to their head, that’s attempted murder to
      me.
              Q. But you knew that before you interviewed Mr. Yerhart,
      didn’t you? A. I—I knew that he was shot in the neck, but I didn’t—
      I didn’t know how severe the wound was—
              Q. Yeah. A. –or the location.

      Then in final argument counsel used this exchange to attack the specific

intent element of the two charges. He stated,
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             And the other important thing is what did Mr. Weber tell you
      about this? He said that, originally he—he was going to charge
      Andrew with Willful Injury and then when he sees, basically, the
      severity of the wounds, that’s when it becomes Attempted Murder,
      not because of, you know, anything in there about specific intent of
      Andrew, not because of Andrew’s actions. And Stacy was
      specifically asked by me: Was it because of Andrew’s actions that
      was changed? No, it wasn’t, it was because of the severity of the
      wounds.

      Counsel’s efforts to convince the jury of a lesser charge were not effective,

but a failed strategy or tactic does not constitute ineffective assistance of

counsel. See State v. Aldape, 307 N.W.2d 32, 42 (Iowa 1981). Furthermore,

Weber was being questioned as to the reason he selected a particular charge,

and not his opinion as to Yerhart’s guilt. The charge he wrote represented his

conclusion based on his investigation of the incident.          Furthermore, his

conclusions and the facts upon which his conclusions were based were already

in evidence. Evidence admitted which is cumulative of admissible evidence in

the record is not prejudicial. State v. Schaer, 757 N.W.2d 630, 638 (Iowa 2008).

      B. Counsel’s Failure to Object to Inadmissible Bad Acts Evidence

      Deputy Weber testified that he had been made aware that Yerhart had

made threats through family members and there might be a shootout if officers

tried to arrest him. The statement was made in his answer to a question relating

the circumstances of Yerhart’s being taken into custody.      “Evidence 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.” Iowa R. Evid.

5.404(b). Yerhart was arrested the same night of the shooting. The arrest was a

part of the occurrence and was admissible to show the complete story of the

crime. See State v. Walters, 426 N.W.2d 136, 140-141 (Iowa 1988).
                                          7


       C. Counsel Was Ineffective for Failing to Object to the Prosecutor’s

           Misconduct in Attacking Yerhart’s Credibility

              1. Prosecutor’s Misconduct in Examining Yerhart.

       In cross-examination the following exchange took place between Yerhart

and the prosecutor in discussing the shooting:

               Q. That’s a coincidence? A. Yes.
               Q. Because you weren’t aiming at the driver’s side? A. I
       didn’t aim at all.
               Q: And it’s just a coincidence that that thing went right
       through the head rest on the driver’s side and into Mike Rupp’s
       neck? A. Yes, a horrible coincidence, yes.
               Q. Well it’s either a horrible coincidence or you’re not telling
       the truth. A. No, I’m telling the truth.

       Yerhart’s intent, an element in two of the charges levied, was again the

focal point of the exchange between Yerhart and the prosecutor.             In cross-

examination the prosecutor simply pointed out the obvious. If Yerhart was not

aiming his gun at the occupants of the moving pickup as Yerhart maintains, the

fact that a bullet penetrated the pickup and struck Rupp must have been a

coincidence. The logical conclusion was that it was either a terrible coincidence

or Yerhart was not telling the truth. “A defendant in a criminal case who takes

the stand submits himself to cross-examination the same as any other witness.”

State v. Bauer, 324 N.W.2d 320, 323 (Iowa 1982); see also Iowa R. Crim. P.

2.20(1).    In some circumstances repeated cross-examination questions

challenging the veracity of the defendant might add up to a finding of prejudice

and raise an issue as to the fairness of the trial, but the single question on which

Yerhart relies does not constitute prosecutorial misconduct. See State v. Carey,

709 N.W.2d 547, 556 (Iowa 2006).
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              2. Counsel’s Misconduct In Argument

       In final arguments the prosecutor made the following comments on

Yerhart’s rendition of his activities and intent when he went home after the

confrontation at the Red Wing access and before the shooting.

       He gets dressed and he grabs a belt that he’s said oh, just by
       coincidence, my gun—I keep a gun on that belt.
              Well now, ladies and gentlemen, if you believe that, you will
       certainly believe me when I tell you I have a pet alligator at home
       that plays the bass guitar. That’s not a true statement by the
       defendant, folks. Use your common sense, reason. He goes home
       to get his gun and is going to go back and he’s going to shoot
       Michael Rupp.

Shortly thereafter, in final argument the prosecutor again commented on

Yerhart’s truthfulness as to his true intentions,

       So how does his gun play into this? Well, he said he had heard
       that Michael Rupp carried a .45. Well, any other evidence in the
       record suggest that, folks? But the defendant’s got to have some
       explanation for you as to why he’s bringing his gun to this kicking-
       ass party, right?
              That wasn’t true, either, because from the time he left Red
       Wing Access till the time he caught up again with Michael Rupp, his
       specific purpose was to shoot him to kill him.

       The court must consider three factors in determining whether the

prosecutor’s statements constitute misconduct.

       (1) Could one legitimately infer from the evidence that the
           defendant lied? (2) Were the prosecutor’s statements that the
           defendant lied conveyed to the jury as a prosecutor’s personal
           opinion of the defendant’s credibility, or was such other
           argument related to specific evidence that tended to show the
           defendant had been untruthful? and (3) Was the argument
           made in a professional manner, or did it unfairly disparage the
           defendant and tend to cause the jury to decide the case based
           on emotion rather than upon a dispassionate review of the
           evidence?

State v. Graves, 668 N.W.2d 860, 874-75 (Iowa 2003).
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         The issue the prosecutor was addressing was Yerhart’s acquisition of his

gun and the short time spent between the Red Wing access incident and the

actual shooting. Yerhart had claimed all he wanted to do was fight Rupp and it

was just a coincidence that the belt he retrieved had a gun attached. As to the

first factor, a juror could easily infer from the evidence that Yerhart’s assertion

that his acquisition of the gun was a coincidence was not a true statement. The

ultimate issue was Yerhart’s intent, and intent can seldom be stablished by direct

proof.    See State v. Schminkey, 597 N.W.2d 785, 789 (Iowa 1999).             The

prosecutor’s statement was related to circumstantial evidence that tended to

show Yerhart had been untruthful. Yerhart had stated at the Red Wing access

immediately prior to the shooting that he was going to kill Rupp and that Rupp

was a dead man. As to the second factor, the prosecutor predicated Yerhart’s

intent on his own words and threats and the retrieval of the revolver.         The

prosecutor was expressing a conclusion based on the facts as they existed and

not a baseless opinion of his own. When attempting to determine intent, words

do have meaning. Particularly when they express a threat and are followed by

the act threatened. As to the third factor, the prosecution went beyond the record

in referring to his guitar-playing alligator.   The comment, although trivial and

hardly professional, is not such that it would have an impact on the jury’s

dispassionate view of the evidence. The prosecutor’s statements were based on

reasonable inferences from the record and were not a baseless expression of his

personal belief.    The prosecutor’s argument reflects his attempt to tarnish

Yerhart’s credibility by reference to other facts and testimony of the case, which

is a part of the prosecutor’s duty. See Carey, 709 N.W.2d at 556.
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   V. Conclusion

       To prevail on a claim of ineffective assistance of counsel, a defendant

must prove (1) counsel failed to perform an essential duty and (2) prejudice

resulted.   State v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008).         Counsel’s

performance is measured objectively by determining what is reasonable on

prevailing professional norms and the existing circumstances. State v. Lyman,

776 N.W.2d 865, 878 (Iowa 2010).        Counsel has no obligation to raise a

meritless claim or make a meritless objection. State v. Brothern, 832 N.W.2d

187, 192 (Iowa 2013). Yerhart is correct when he maintains that the cumulative

effect of errors can satisfy the prejudicial prong of the claim of ineffective

assistance of counsel. See State v. Clay, 824 N.W.2d 488, 500 (Iowa 2012).

Nevertheless, we have not found that Yerhart’s counsel has failed to perform an

essential duty, nor do we find that he has suffered any prejudice even if counsel

had failed to perform such a duty.       The evidence of Yerhart’s guilt was

substantial, if not overwhelming.

       AFFIRMED.
