                    IN THE COURT OF APPEALS OF IOWA

                               No. 3-1235 / 12-1754
                               Filed March 12, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

NATHANIEL LAMICE YANCEY JR.,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Polk County, Christopher L.

McDonald (sentencing) and Scott D. Rosenberg (trial), Judges.



       Defendant appeals from the judgment, convictions, and sentence following

a jury trial and guilty verdicts. AFFIRMED.



       Mark C. Smith, State Appellate Defender, and Bradley M. Bender,

Assistant Appellate Defender, for appellant.

       Thomas J. Miller, Attorney General, Linda Hines, Assistant Attorney

General, John P. Sarcone, County Attorney, and James Ward, Assistant County

Attorney, for appellee.



       Considered by Danilson, C.J., and Vaitheswaran and Mullins, JJ.

McDonald, J., takes no part.
                                         2


DANILSON, C.J.

          Nathaniel Yancey Jr. appeals from the judgment, convictions, and

sentence following a jury trial and guilty verdicts.   On appeal, Yancey raises

several claims. First, he maintains the district court erred by allowing evidence of

prior bad acts where the probative value was substantially outweighed by unfair

prejudice. Second, he argues the State failed to present sufficient evidence to

support each of his convictions.       Next, he claims he received ineffective

assistance from counsel at trial.    In support of this contention, he maintains

counsel was ineffective for failing to object to a jury instruction.    Finally, he

maintains the district court failed to provide adequate reasoning to explain the

decision to impose consecutive sentences. Upon our review of the record, we

affirm.

I. Background Facts and Proceedings.

          On November 25, 2011, several “Black Friday” shoppers observed an

altercation in the parking lot of Valley West Mall in West Des Moines, Iowa.

Several people heard gun shots, and some witnessed a gun being fired. When

the police arrived at the parking lot, only the witnesses remained.

          Among the witnesses who saw the gun being fired was Francesca

Bertagonolli.    She reported the incident to the West Des Moines Police and

identified Yancey as the shooter in a photo array. Some of the witnesses were

passengers in a black Buick Escalade that was shot at and hit. One of the

passengers, Janee Jones, identified the shooter by race.          Another witness

provided the police with a license plate number from one of the cars involved in

the shooting; the car belonged to Yancey. Finally, the police collected three
                                         3


nine-millimeter pistol shell casings from the area the witnesses indicated the

shooting occurred.

       Eight days later, on December 3, 2011, off-duty Des Moines police officers

Sone Cam and Pat Hickey were working at Club 101 in Des Moines, Iowa.

During his shift, Officer Cam encountered Yancey when he heard someone yell

Yancey “had a piece.” When Officer Cam tried to stop Yancey, Yancey resisted

and ran away. Officer Cam pursued Yancey outside and tried to deploy his taser

during the pursuit. Yancey spun around and began firing shots at Officer Cam,

who returned fire. Officer Hickey was eventually able to apprehend Yancey while

he fled on foot. When Yancey was apprehended, he no longer had a firearm in

his possession.      Des Moines Police Officer Michael Dixson located a nine-

millimeter pistol underneath a truck in the alley through which Yancey ran. He

also located three casings from a nine-millimeter pistol.

       Victor Murillo, a criminalist from the Iowa Division of Criminal Investigation

(DCI), compared the casings and the weapon found at the scene and determined

the casings were fired from the gun retrieved by the Des Moines police officers.

Murillo also tested the shell casings retrieved from Valley West Mall and

determined those were also fired from the gun recovered from the Club 101

shooting.

       On December 16, 2011, Yancey was charged with intimidation with a

dangerous weapon, in violation of Iowa Code section 708.6 (2011); assault while

participating in a felony, in violation of section 708.3; going armed with intent, in

violation of section 708.8; possession of a firearm by a felon, in violation of

section 724.26; attempt to commit murder, in violation of section 707.11; assault
                                          4


on a peace officer with a weapon, in violation of sections 708.1 and 708.3A;

assault while participating in a felony, in violation of section 708.3; going armed

with intent, in violation of section 708.8; possession of a firearm by a felon, in

violation of section 724.26; and intimidation with a dangerous weapon, in

violation of section 708.6.

       On May 9, 2012, Yancey filed a motion to sever trial on separate offenses.

A hearing on the motion was held the same day. Yancey indicated that counts

one through four arose from the incident at Valley West Mall in West Des Moines

on November 25, 2011, while the rest of the counts arose from the incident at

Club 101 in Des Moines on December 3, 2011. The State concurred that the

charges from the two incidents should be severed. The district court granted

Yancey’s motion to sever and ordered the charges stemming from the shooting

at Club 101 to be tried first.

       On May 14, 2012, a jury trial commenced on the charges stemming from

the Club 101 shooting.        The jury found Yancey guilty of the lesser-included

offense of assault with intent to inflict serious injury on the attempted murder

charge, as well as assault on a peace officer with a weapon, assault while

participating in a felony, going armed with intent, possession of a firearm by a

felon, and intimidation with a dangerous weapon.1

       On July 30, 2012, Yancey filed a motion in limine regarding the trial for the

Valley West Mall incident. In his motion, he requested the exclusion of evidence

concerning the shooting at Club 101 and the ballistic testing by the DCI, which

1
 Yancey also appeals the judgment, convictions, and sentence regarding the incident at
Club 101. Those claims are decided in a separate opinion filed today. See State v.
Yancey, No. 12-1556 (Iowa Ct. App. March 12, 2014).
                                        5


found that the gun retrieved matched the casings fired at Valley West Mall on

November 25, 2011. Yancey argued the admission of such evidence was highly

prejudicial and that any probative value was outweighed by unfair prejudice. The

district court ruled on the motion the same day and concluded that evidence from

the Club 101 shooting was admissible for the limited purpose of establishing

possession of the firearm and identity of the shooter.     Following a jury trial,

Yancey was convicted of each of the four charges. He stipulated he was a

habitual offender for the purpose of the sentencing enhancement.

        On August 3, 2012, Yancey was sentenced for the charges stemming

from the Club 101 incident.    He was sentenced to an indeterminate term of

imprisonment not to exceed seventy-five years. A sentencing hearing for the

charges stemming from the Valley West Mall shooting was held September 17,

2012.    On each of the four charges, Yancey was sentenced to serve an

indeterminate term not to exceed fifteen years. The court ordered the sentences

to be served concurrent to each other, but consecutive to the sentences imposed

for the Club 101 charges, for a total term of incarceration not to exceed ninety

years. Yancey appeals.

II. Standard of Review.

        Yancey raises several issues on appeal:

        We review rulings on the admission of evidence of prior bad acts for an

abuse of discretion. State v. White, 668 N.W.2d 850, 853 (Iowa 2003). Even if

an abuse of discretion occurred, reversal is not required if the court’s erroneous

admission of evidence was harmless. State v. Henderson, 696 N.W.2d 5, 10

(Iowa 2005).
                                        6


      We review challenges to the sufficiency of evidence for errors at law.

State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012). We review the evidence “in

the light most favorable to the State, including all reasonable inferences that may

be deduced from” it to determine whether the finding of guilt is supported by

substantial evidence and should be upheld.       Id. Evidence is substantial if it

would convince a rational fact-finder of the defendant’s guilt beyond a reasonable

doubt. Id.

      A defendant may raise an ineffective-assistance claim on direct appeal if

he has reasonable grounds to believe the record is adequate for us to address

the claim on direct appeal. State v. Straw, 709 N.W. 2d 128, 133 (Iowa 2006). If

we determine the record is adequate, we may decide the claim. Id. We review

claims for ineffective assistance of counsel de novo. Id.

      Our review of the district court’s sentencing decision is for correction of

errors at law. State v. Thomas, 547 N.W.2d 223, 225 (Iowa 1996). The decision

to impose a sentence within statutory limits is “cloaked with a strong presumption

in its favor.” State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002). The sentence

will not be upset on appeal “unless the defendant demonstrates an abuse of trial

court discretion or a defect in the sentencing procedure.” State v. Grandberry,

619 N.W.2d 399, 401 (Iowa 2000). An abuse of discretion is found only when the

sentencing court exercises its discretion on grounds or for reasons clearly

untenable or to an extent clearly unreasonable. Thomas, 547 N.W.2d at 225. In

criminal cases the court is to “state on the record its reasons for selecting the

particular sentence.” Iowa R. Crim. P. 2.23(3)(d). We review both the court’s

stated reasons made at the sentencing hearing and its written sentencing order.
                                           7

See State v. Lumadue, 622 N.W.2d 302, 304 (Iowa 2001). The statement of

reasons can be “terse and succinct,” as long as its brevity does not hinder review

of the district court’s discretion. State v. Victor, 310 N.W.2d 201, 205 (Iowa

1981).

III. Discussion.

         A. Admission of Bad Acts Evidence.

         Yancey appeals the district court’s decision allowing the State to present

evidence regarding the Club 101 shooting at Yancey’s trial for the Valley West

shooting. Yancey concedes the evidence is relevant but maintains its probative

value was substantially outweighed by the danger of unfair prejudice. He argues

that because it was unfairly prejudicial, it should have been excluded from trial.

See State v. Mitchell, 633 N.W.2d 295, 298–99 (Iowa 2001) (“If [the evidence’s]

probative value is substantially outweighed by the danger of unfair prejudice to

the defendant . . . the evidence must be excluded.”); see also Iowa R. Evid.

5.403 (“Although relevant, evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the

issues, or misleading the jury, or by considerations of undue delay, waste of time,

or needless presentation of cumulative evidence.”).

         Unfair evidence is that which:

         appeals to the jury’s sympathies, arouses its sense of horror,
         provokes its instinct to punish, or triggers other mainsprings of
         human action may cause a jury to base its decision on something
         other than the established propositions in the case. The appellate
         court may conclude that “unfair prejudice” occurred because an
         insufficient effort was made below to avoid the dangers of
         prejudice, or because the theory on which the evidence was offered
         was designed to elicit a response from the jurors not justified by the
         evidence.
                                         8



State v. Plaster, 424 N.W.2d 226, 231–32 (Iowa 1988). In determining whether

evidence is unfairly prejudicial, we consider:

       the need for the evidence in light of the issues and the other
       evidence available to the prosecution, whether there is clear proof
       the defendant committed the prior bad acts, the strength or
       weaknesses of the evidence on the relevant issue, and the degree
       to which the fact finder will be prompted to decide the case on the
       improper basis.

State v. Taylor, 689 N.W.2d 116, 124 (Iowa 2004).

       Here, the evidence concerning the shooting at Club 101 aided in

identifying Yancey as the shooter at Valley West Mall.         Although Francesca

Bertagonolli identified Yancey as the shooter, none of the other witnesses were

able to do so. Furthermore, at trial, each witness testified it was still dark at the

time of the incident, and each testified they were some distance from the incident

when it occurred, even those who had been in the same vehicle as Francesca.

Although Yancey’s vehicle was identified as one of the vehicles that was at the

mall at the time of the altercation, that evidence did not tie Yancey to the

shooting or the gun.

       The DCI criminalist testified that the gun retrieved from the Club 101

shooting was the same gun used at the Valley West Mall shooting. Officers Cam

and Hickey testified that Yancey shot a gun at Club 101 and was taken into

custody near the gun identified by the DCI criminalist. Here, there was “clear

proof [Yancey] committed the prior bad acts.” See Taylor, 689 N.W.2d at 124.

       At the time of the trial for the charges stemming from the mall incident,

Yancey had already been tried and convicted for the Club 101 incident.

Furthermore, the trial court mitigated any prejudicial effect of the evidence by at
                                             9


least twice instructing the jury verbally of the limited purpose for which the

testimony was being offered. The jury was also provided a written instruction

which stated that the evidence from the Club 101 incident could “only be used to

show the identity of the person charged and not for any other purpose.” See

State v. Owens, 635 N.W.2d 478, 483 (Iowa 2001) (“[W]hen a cautionary

instruction is given, it is only in extreme cases that the instruction is insufficient to

nullify the danger of unfair prejudice.”).

        Thus, we conclude the trial court did not abuse its discretion by allowing

evidence of Yancey’s prior bad acts to be admitted at trial.

        B. Sufficiency of Evidence.

        Yancey maintains the State failed to present sufficient evidence to support

his conviction for any of the four offenses of which he was convicted. He claims

the district court erred by not granting his motion for judgment of acquittal on

each of the four offenses because the State did not present evidence that

supported the jury’s finding he was the person who shot the gun at Valley West

Mall.

        When reviewing the evidence in the light most beneficial to the State, a

jury could reasonably infer Yancey was the person responsible for shooting the

gun in the Valley West Mall parking lot.            After the incident occurred, an

eyewitness provided the police officers with a license plate of a vehicle that

people involved in the altercation used to flee. That car was owned by Yancey.

Another eyewitness, Francesca Bertagnolli, picked Yancey out of a photograph

array at the police station a few days after witnessing the incident. At trial, she

also identified Yancey as the man she had seen in the parking lot. Finally, the
                                        10


State presented evidence that the gun used at the Valley West Mall shooting was

in Yancey’s possession eight days later.

      Although some of the witnesses, even those in the same car as

Francesca, testified they were unable to identify the shooter because of the

distance or the darkness, “discrepancies in testimony, in and of themselves, do

not preclude proof beyond a reasonable doubt.”           See State v. Speaks, 576

N.W.2d 629, 632 (Iowa Ct. App. 1998). Furthermore, a jury is free to believe or

disbelieve any testimony it chooses and to give as much weight to the evidence

as, in its judgment, such evidence should receive. Id.

      Based on our review of the evidence in the record, we conclude the district

court properly denied Yancey’s motion for judgment of acquittal for all four

offenses because substantial evidence existed at the time of the close of the

State’s evidence.

      C. Ineffective Assistance of Counsel.

      One of the charges against Yancey was going armed with intent. Iowa

Code section 708.8 defines it as, “A person who goes armed with any dangerous

weapon with the intent to use without justification such weapon against the

person of another commits a class ‘D’ felony.” At trial, the jury was provided the

following instruction, based on the uniform instruction, regarding the charge:

             The State must prove all of the following elements of Going
      Armed With Intent as charged in Count III:
             1. On or about the 25th day of November, 2011 the
      defendant was armed with a handgun.
             2. The handgun was a dangerous weapon as defined in
      Instruction No. 23.
             3. The defendant was armed with the specific intent to use
      the handgun against another person.
                                         11


                 4. During the commission of this offense, the defendant
         moved from one location to another.
                 5. The defendant specifically intended to shoot at another
         person.
                 If you find the State has proved all of the elements, the
         defendant is guilty of Going Armed With Intent. If the State has
         failed to prove any one of the elements, the Defendant is not guilty
         on Count III.

Yancey maintains that an essential element of going armed with intent is proof of

movement, and he claims the jury instruction did not reflect this essential part of

the offense. He maintains that counsel’s failure to object to the jury instruction

amounts to ineffective assistance from counsel at trial and that he was prejudiced

by the failure.

         To succeed on his claim, Yancey must show by a preponderance of the

evidence that (1) his counsel failed to perform an essential duty and (2) prejudice

resulted. See State v. Rodriguez, 804 N.W.2d 844, 848 (Iowa 2011). To prove

counsel failed to perform an essential duty, Yancey must show “counsel’s

representation fell below an objective standard of reasonableness . . . under

prevailing professional norms.” See Strickland v. Washington, 466 U.S. 668, 688

(1984). In doing so, he must overcome “a strong presumption that counsel’s

conduct falls within the wide range of reasonable professional assistance.” See

id. at 689. Prejudice has resulted when “there is a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would have

been different.” Bowman v. State, 710 N.W.2d 200, 203 (Iowa 2006). We can

affirm if either prong is absent and need not engage in both prongs of the

analysis if one is lacking. See Everett v. State, 789 N.W.2d 151, 159 (Iowa

2010).
                                         12


       In this case, Yancey’s trial counsel did not breach an essential duty.

Yancey is correct that “going armed” requires proof of movement. See State v

Ray, 516 N.W.2d 863, 865 (Iowa 1994) (“As for ‘going’ armed, we believe the

term necessarily implicates proof of movement.”).       Here, the jury instructions

included both the requirement that the State prove, “During the commission of

this offense, the defendant moved from one location to another” and advised the

jury that “[i]f the State has failed to prove any one of the elements, the Defendant

is not guilty on Count III.” (Emphasis added.) Contrary to Yancey’s assertion,

these instructions do require proof of movement.2

       Because the uniform instruction provided to the jury does require proof of

movement, any objection to it by counsel would have been overruled. Counsel

was not ineffective for failing to raise an objection that has no merit. See State v.

Willis, 696 N.W.2d 20, 24 (Iowa 2005) (holding counsel was not ineffective for

failing to raise an issue that has no merit). Since Yancey’s trial attorney did not

breach any essential duty, we need not address the prejudice element of

ineffective assistance. See Everett, 789 N.W.2d at 159.

       D. Decision to Impose Consecutive Sentences.

       This is yet another case of a long line of cases raising on appeal the issue

of whether an adequate explanation was given for imposing consecutive

sentences.    Here, Yancey concedes the district court provided adequate

reasoning for its decision to impose a term of incarceration but maintains the

court did not provided adequate reasoning regarding why consecutive sentences


2
  We conclude a reasonable juror would understand that “during the commission of the
offense” means while being armed with a handgun.
                                         13


are warranted in this particular case.     The district court imposed concurrent

sentences for each of the charges in the present case but ordered the sentence

to run consecutively to the sentence from the Club 101 charges. In doing so, the

court stated:

               The Court hereby pronounces the following judgment and
       sentence. And let the record reflect that in pronouncing the
       judgment and sentence, the Court has considered the presentence
       investigation report, the defendant’s statement in this case, in which
       he has made none, and other pertinent information, including letters
       in the file from people advocating on Mr. Yancey’s behalf.
               The Court has also considered the following factors: The age
       of Mr. Yancey, his prior record of convictions, his employment
       circumstances,       his   family   circumstances,      his   financial
       circumstances, the nature of the offense committed, the
       defendant’s history of substance abuse, and the defendant’s mental
       health history, and whether—and what would afford the maximum
       opportunity for rehabilitation and protection of the public.
               The Court has further considered all sentencing options
       available by statute, and the Court concludes the following
       judgment and sentence provides the maximum opportunity for
       rehabilitation of the defendant and protection of the community from
       further offenses by the defendant.
               ....
               The Court has decided that it’s going to run the sentences
       with respect to Counts I through IV concurrently. However, those
       sentences shall run consecutively to the sentence on Counts V
       through X that were previously imposed by Judge Rosenberg in this
       matter.

       “If a person is sentenced for two or more separate offenses, the

sentencing judge may order the second or further sentence to begin at the

expiration of the first or succeeding sentence.”         Iowa Code § 901.8.      A

sentencing court must state, on the record, its reason for selecting a particular

sentence. State v. Barnes, 791 N.W.2d 817, 827 (Iowa 2010) (citing Iowa R.

Crim. P. 2.23(3)(d)).     The court must also provide reasons for imposing

consecutive sentences. Id. “A statement may be sufficient, even if terse and
                                        14


succinct, so long as the brevity of the court’s statement does not prevent review

of the exercise of the trial court’s sentencing discretion.” State v. Hennings, 791

N.W.2d 828, 838 (Iowa 2010). We may look to the court’s overall sentencing

rationale to glean the reasoning for imposing consecutive sentences. See id.

(“[I]t is apparent to us that the district court ordered the defendant to serve his

sentences consecutively as part of an overall sentencing plan.”).

      In Hennings, our supreme court stated, “[t]he court spoke at length about

the information it considered in making a sentencing determination and

specifically what factors influenced its ultimate decision. This is not a situation

where the court ‘failed to give even a terse explanation of why it imposed

consecutive, as opposed to concurrent sentences.’” 791 N.W.2d at 838 (citing

State v. Uthe, 542 N.W.2d 810, 816 (Iowa 1996)). In Hennings not a single word

or sentence was directly expressed explaining why consecutive sentences were

imposed.

      While the court provided no explicit connection between its sentencing

plan as a whole and its decision to impose the consecutive sentence, we can

discern no difference between these facts and the facts in Hennings. We can

only conclude the court’s reasoning is apparent from the overall sentencing

rationale.3 See Hennings, 791 N.W.2d at 838.

      Thus, we find the district court did not abuse its discretion, and we affirm.




3
  See State v. Scott, 12-1531, 2013 WL2146226, at *2 (Iowa Ct. App. May 15, 2013)
(Danilson, J., concurring specially).
                                         15


IV. Conclusion.

       Upon our review, we find the evidence of Yancey’s prior bad acts was not

unfairly prejudicial and the trial court did not abuse its discretion by allowing the

evidence to be admitted at trial. We also find the district court properly denied

Yancey’s motion for judgment of acquittal for all four offenses because

substantial evidence existed at the time of the close of the State’s evidence.

Because Yancey’s trial attorney did not breach an essential duty and thus did not

provide ineffective assistance, we affirm Yancey’s convictions.         Finally, the

sentencing court did not abuse its discretion when it ordered the sentence on the

present case to run consecutively to the sentence imposed on a previous case.

We affirm.

       AFFIRMED.
