                    IN THE COURT OF APPEALS OF IOWA

                                    No. 18-0575
                                 Filed May 1, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ABRAHAM ROBERTS,
     Defendant-Appellant.
________________________________________________________________


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

Judge.



      A defendant appeals his conviction for murder in the first degree.

AFFIRMED.



      Mark C. Smith, State Appellate Defender, (until withdrawal) and Robert P.

Ranschau, Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant Attorney

General, for appellee.



      Considered     by    Potterfield,   P.J.,   and   Tabor   and   Bower,   JJ.
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TABOR, Judge.

       A Polk County jury found Abraham Roberts guilty of first-degree murder in

the shooting death of his live-in girlfriend, Agnes Yarlee. On appeal, Roberts

challenges the State’s proof he acted with malice aforethought and that the

shooting was willful, premeditated, and carried out with a specific intent to kill.

Because the State presented ample evidence supporting these elements, we

affirm the jury’s verdict.

I.     Facts and Prior Proceedings

       The jury heard testimony Roberts shot Yarlee five times as she sat on the

couch in the apartment they shared with their infant daughter, Yarlee’s three older

children, and other family members. Their five-month-old was sitting in a bouncy

chair at her mother’s feet when Roberts repeatedly fired the nine-millimeter Smith

& Wesson handgun. No bullets hit the baby, but they struck Yarlee in the knee,

chest, and skull. The head wound was fatal.

       Before the shooting, Roberts complained the apartment was a mess.

Yarlee purportedly responded, “my kids ain’t here to clean the house.” Then

Roberts, Yarlee, and Yarlee’s seventy-nine-year-old mother argued so loudly

Yarlee’s three children could hear their raised voices outside the apartment

building. During the argument, Roberts shoved the elderly woman to the ground

as he moved to the bedroom to grab his gun. Scared to go inside, eleven-year-

old C.Y. recalled standing at the open apartment door with her eight- and nine-

year-old brothers behind her. C.Y. saw Roberts tap his leg before he lifted the gun

and shot her mother. C.Y. told the jury her mother didn’t have time to react: “He
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didn’t give her a chance. He just went boom, boom, boom, boom, boom.” C.Y.

then ushered her grandmother from the house and called 911.

       Roberts left the apartment before the police arrived. Responding officers

discovered Yarlee’s body on the couch in a large pool of blood. After searching

the apartment the next day, officers found the handgun under dirty clothes in the

laundry hamper. Authorities eventually arrested Roberts in International Falls,

Minnesota, near the Canadian border.

       The State charged Roberts with murder in the first degree, in violation of

Iowa Code sections 707.1 and 707.2(1) (2017). A jury heard the case in January

2018. Yarlee’s mother and daughter both offered eyewitness testimony. They

testified Roberts was angry, and the grandmother remembered Roberts telling

Yarlee, “I will kill you,” before he pulled the trigger.

       After the State’s case in chief, defense counsel moved for judgment of

acquittal on the charges of murder in the first and second degree and asked the

district court to submit the case to the jury only on the lesser-included offenses of

voluntary and involuntary manslaughter. The court overruled the motion.

       Roberts took the stand in his own defense. He testified to drinking more

than half a bottle of gin the day of the shooting. He acknowledged arguing with

Yarlee at the apartment but alleged she was the aggressor, they wrestled over the

gun, and “it automatically went off.”1 According to his testimony, after the first shot,




1
  Roberts did not raise an intoxication or justification defense at trial, nor does he mention
those affirmative defenses on appeal.
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he didn’t remember anything until the next morning.2 He told the jury after waking

up at a hotel, he was “lost” and “confused” and just kept driving until he was

stopped by the border patrol.

       The jury found Roberts guilty as charged. He appeals the judgment entered

on that verdict, alleging the district court erred in denying his motion for judgment

of acquittal.

II.    Scope of Review

       We review the district court’s assessment of the sufficiency of the evidence

for correction of legal error. State v. Buenaventura, 660 N.W.2d 38, 48 (Iowa

2003). We will not displace a jury verdict if substantial evidence supports it. Id.

Evidence qualifies as “substantial” if a rational trier of fact could apply it to the

elements of the offense to find the accused guilty beyond a reasonable doubt. Id.

We view the evidence in the light most favorable to the State, entertaining all

legitimate inferences we can fairly and reasonably deduce from the record. Id. We

consider both inculpatory and exculpatory evidence.            Id.   Evidence is not

substantial if it amounts to only “suspicion, speculation, or conjecture.” State v.

Hopkins, 576 N.W.2d 374, 377 (Iowa 1998).

III.   Analysis

       The marshaling instruction on first-degree murder required proof beyond a

reasonable doubt of the following elements:

             1. On or about the 15th day of April, 2017, the defendant shot
       Agnes Yarlee.
             2. Agnes Yarlee died as a result of being shot.

2
  Roberts, who came to the United States as a refugee from Liberia, testified he
experienced a similar “amnesia event” when he was running from a violent uprising in his
home country.
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             3. The defendant acted with malice aforethought.
             4. The defendant acted willfully, deliberately, premeditatedly
       and with a specific intent to kill Agnes Yarlee.

       Roberts does not dispute the State’s satisfaction of the first and second

elements. He limits his argument to the third and fourth elements, contending the

prosecution did not prove beyond a reasonable doubt he “acted with malice

aforethought, premeditation or acted willfully, deliberately, or with the specific

intent to kill.” He points to differing witness accounts of the number of shots fired

and suggests the variation “could indicate that the gunshots occurred in rapid

succession and in the heat of the moment.”

       We turn first to the question of whether Roberts shot Yarlee with malice

aforethought. Iowa case law defines this state of mind as “a fixed purpose or

design to do some physical harm to another” harbored by the accused before

taking action. State v. Serrato, 787 N.W.2d 462, 469 (Iowa 2010) (quoting State

v. Gramenz, 126 N.W.2d 285, 290 (Iowa 1964)). The State does not need to prove

the fixed purpose to do harm existed for any particular length of time. Id. Case

law describes the vital interval “as such deliberation as makes a person appreciate

and understand at the time the act is committed its nature and probable

consequences as distinguished from an act done in the heat of passion.” State v.

Hofer, 28 N.W.2d 475, 482 (Iowa 1947).

       The State presented eyewitness testimony Roberts was “mad” when he

entered the living room with a handgun and shot Yarlee repeatedly at close range.

The jurors were entitled to believe the forensic evidence showing Roberts fired all

five shots at a downward trajectory toward the victim and disbelieve his version

that the pair were struggling over the weapon when it discharged. See State v.
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Thornton, 498 N.W.2d 670, 673 (Iowa 1993) (reiterating “the very function of the

jury” is to “sort out the evidence” and “place credibility where it belongs”). A

criminalist testified for the State the handgun used in the killing would “only fire one

time for each trigger pull.” Even if those pulls came in rapid succession—as

Roberts suggests on appeal—his use of a deadly weapon in a dangerous manner

permitted the jury to infer he acted with malice aforethought. See State v. Green,

896 N.W.2d 770, 781 (Iowa 2017); State v. Woodmansee, 233 N.W. 725, 736

(Iowa 1930). The State offered substantial evidence in support of the malice-

aforethought element.

       We turn next to the question of whether Roberts acted willfully, deliberately,

premeditatedly, and with a specific intent to kill Yarlee. These states of mind “must

exist before and at the time” of the killing. State v. Wilson, 11 N.W.2d 737, 754

(Iowa 1943). “But the inception of their existence need be only but an instant

before the fatal blow.” Id. “Willfully,” as used in Iowa’s murder statute, means

intentionally and not accidentally. Hofer, 28 N.W.2d at 483. Deliberately means

“the act was the result of a purpose formed after weighing the considerations for

and against the doing of the act.” Id. To premeditate means “to think or ponder

upon the matter before acting.” Buenaventura, 660 N.W.2d at 48. Like malice

aforethought, premeditation need not “exist for any particular length of time.” Id.

The State can prove premeditation by three categories of evidence: (1) planning,

(2) motive, or (3) the nature of the killing. State v. Helm, 504 N.W.2d 142, 146

(Iowa Ct. App. 1993). Finally, specific intent means the offender “subjectively

desired the prohibited result”—in this case, Yarlee’s death. See State v. Benson,

919 N.W.2d 237, 244 (Iowa 2018).
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       The eyewitnesses dispelled any notion the shooting was accidental rather

than intentional. But even without their testimony, the number and location of the

gunshot wounds revealed the willful nature of Roberts’s actions. Likewise, “the

record sufficiently established [Roberts’s] opportunity to premeditate and

deliberate before firing bullets into [Yarlee’s] body at close range.” See State v.

Wilkens, 346 N.W.2d 16, 20 (Iowa 1984).

       Finally, although Roberts casts doubt on the credibility of the grandmother’s

recollection he explicitly threatened to kill Yarlee, the jurors were free to believe

her trial testimony. See State v. Shanahan, 712 N.W.2d 121, 135 (Iowa 2006)

(“The jury members were free to give [witness] testimony such weight as they

thought it should receive.” (citing State v. Schrier, 300 N.W.2d 305, 309 (Iowa

1981))). And even without that threat, Roberts’s conduct exuded an intent to kill.

Roberts shot Yarlee in the chest and top of her skull—both locations on the body

vulnerable to mortal injuries. He then hid the handgun in the hamper before fleeing

the apartment. His actions support the jury’s finding he subjectively desired to

cause Yarlee’s death. Viewing the record in the light most favorable to the guilty

verdict, we find substantial evidence to support his conviction for murder in the first

degree.

       AFFIRMED.
