                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-0595
                             Filed October 14, 2015


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DOVIONO DETREESE GRAY,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Mark J. Smith (guilty

plea) and Marlita A. Greve (trial and sentencing), Judges.



      The defendant appeals his convictions of intimidation with a dangerous

weapon, intimidation with a dangerous weapon with intent, and felon in

possession of a firearm.    AFFIRMED IN PART, VACATED IN PART, AND

REMANDED.



      Mark C. Smith, State Appellate Defender, and Theresa R. Wilson,

Assistant Appellate Defender, for appellant.

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

General, Michael J. Walton, County Attorney, and Patrick McElyea and Melissa

Zaehringer, Assistant County Attorneys, for appellee.



      Considered by Mullins, P.J., Bower, J., and Eisenhauer, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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EISENHAUER, Senior Judge.

       During the early morning hours of July 25, 2013, shots were fired at and

into a vehicle occupied by Chastity Ballew and Christopher Perez. Doviono Gray

was identified as the shooter and convicted of intimidation with a dangerous

weapon, intimidation with a dangerous weapon with intent, and felon in

possession of a firearm after the district court refused to accept his guilty plea on

the grounds it lacked a factual basis. On appeal, Gray challenges the rejection of

his guilty plea and the admission of certain evidence at his trial.         He also

contends his trial counsel was ineffective for not challenging the multiple

punishments for intimidation with a dangerous weapon on double jeopardy

grounds.

       I. Factual Basis for Guilty Plea.

       By agreement with the State, Gray pled guilty to two counts of intimidation

with a weapon in exchange for dismissal of other pending charges. The State

also agreed not to seek the habitual-offender enhancement. The court found a

factual basis for the guilty plea but deferred accepting the plea until sentencing.

At the sentencing hearing, however, the court determined there was no factual

basis for the plea and rejected the agreement.

       We review the court’s decision to reject a guilty plea for an abuse of

discretion. State v. Hager, 630 N.W.2d 828, 833 (Iowa 2001). This discretion is

broad but not unlimited. Id. An abuse of discretion may occur when the court

exercises its discretion upon an error of law. Farley v. Glanton, 280 N.W.2d 411,

415 (Iowa 1979).
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       At the time of the plea, the record must disclose facts satisfying all the

elements of the offense. Rhoades v. State, 848 N.W.2d 22, 29 (Iowa 2014).

While the factual basis need not be detailed, the defendant must acknowledge

facts consistent with the elements of the crime. Id. at 30. Gray pled guilty to

intimidation with a dangerous weapon, a class “D” felony, which is committed

when a person

       shoots, throws, launches, or discharges a dangerous weapon at,
       into, or in a building, vehicle, airplane, railroad engine, railroad car,
       or boat, 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.

Iowa Code § 708.6 (2013). In order for a factual basis to exist, Gray must have

(1) threatened to discharge a dangerous weapon at others and (2) the

circumstances raise a reasonable expectation the threat would be carried out.

       At the plea hearing, Gray admitted he threatened to discharge a firearm

into a vehicle occupied by two people and those people had a reasonable

expectation the threat might be carried out. At the sentencing hearing, the court

asked if Gray threatened Perez with a weapon, and Gray’s attorney stated Gray

“always maintained that he wasn’t actually in possession of a weapon, but he did

make that threat.”    After a recess, the court concluded the law required “an

immediate availability of a weapon to indicate that the person would be raising a

reasonable expectation that the threat would be carried out.” Because “a verbal

threat without any type of weapon present is not sufficient,” the court rejected the

plea on the basis it lacked a factual basis. Gray argues the court’s interpretation

was in error.
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       In State v. Lane, 743 N.W.2d 178, 182 (Iowa 2007), the defendant argued

there was insufficient evidence to convict him of intimidation with a deadly

weapon as a class “D” felony. There, the defendant made statements about a

deadly courthouse shooting in Atlanta, which had occurred eight days earlier,

stating,

       [Y]ou can take this how you want. That Atlanta shooting is not
       going to be the only thing that’s going to happen. I am going to
       come down, get a court schedule, and I’m going to take care of all
       you mother fuckers. . . . You guys are all going to be sorry when I
       get a court schedule.

Lane, 743 N.W.2d at 180-81.       At the time he made these statements, the

defendant was being arrested and placed in handcuffs. Id. at 180. Although

Lane was not in possession of a firearm at the time he made the statements, our

supreme court determined the evidence “overwhelmingly proved a reasonable

person hearing Lane’s statements would have expected him to act on his

threats.” Id. at 184.

       Because Lane indicates it may not be necessary for a defendant to have

or display a deadly weapon in order to be convicted of intimidation with a deadly

weapon, the sentencing court erred in finding Gray could not have committed the

crime without admitting to possessing a weapon. However, the court did not

abuse its discretion in refusing Gray’s plea. Although the defendant in Lane did

not possess a weapon, he made specific statements to the officers a reasonable

person could infer were threats. Id. at 180-81. Here, Gray did not disclose how

his threats were made. The minutes of evidence state Gray made his threats by

pointing a weapon at the pair in the vehicle, but Gray denied possessing a

weapon. Gray made no admission upon which the court could determine there
                                       5


was a reasonable expectation his threat would be carried out. Therefore, Gray’s

plea lacked a factual basis, and we affirm the court’s rejection of the plea

agreement.

      II. Admission of Evidence.

      Before trial, Gray moved to exclude evidence relating to another shooting

and its investigation. The State theorized the shootings were connected and the

evidence was relevant to Gray’s intent. The court reserved ruling on the motion

until trial when it allowed Detective Thomas to testify he was investigating the

July 1, 2013 shooting death of Zachary Thompson.         Specifically, Detective

Thomas testified Gray was Thompson’s cousin and close friend, was present

when Thompson was shot, and took Thompson to the hospital. He testified Gray

and Thompson did not get along with Perez and his brother, Cortez Ralston, who

were suspects in Thompson’s death, although no arrests had been made and the

investigation was ongoing. Detective Thomas also testified Perez and Ralston

traveled together in a tan Pontiac Bonneville, which was used in Thompson’s

shooting and which was shown being damaged in a video Gray posted to his

Facebook page.

      Gray contends the district court abused its discretion in admitting this

evidence. See State v. Thompson, 836 N.W.2d 470, 476 (Iowa 2013) (noting we

review evidentiary rulings for an abuse of discretion). He argues the evidence

was not relevant because there was no proof that he knew Perez was a suspect

in Thompson’s shooting. Evidence is relevant if it has “any tendency to make the

existence of any fact that is of consequence to the determination of the action

more probable or less probable than it would be without the evidence.” Iowa R.
                                            6


Evid. 5.401.     “The test is whether a reasonable person might believe the

probability of the truth of the consequential fact to be different if he knew of the

proffered evidence.” State v. Plaster, 424 N.W.2d 226, 229 (Iowa 1988) (internal

quotation marks omitted).

       Although there was no evidence Gray knew Perez was a suspect in

Thompson’s shooting, his presence at the shooting and the video of the

retaliation on the Pontiac Bonneville suggests Gray had the knowledge or belief

Perez was involved. If Perez was involved in Thompson’s shooting—or Gray

believed he was involved—it is more probable Gray was involved in shooting at

Perez. Accordingly, the evidence of Thompson’s shooting was relevant, and the

district court was within its discretion to admit it.

       Although the evidence was relevant, it should not be admitted 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.” Iowa R.

Civ. P. 5.403. “Probative value” concerns the strength or force of the evidence’s

relevancy.     State v. Bayles, 551 N.W.2d 600, 607 (Iowa 1996).            “Undue

prejudice” is “an undue tendency to suggest decisions on an improper basis,

commonly though not necessarily, an emotional one.” Id.

       The probative value of the evidence relating to Thompson’s shooting is not

outweighed by the danger of unfair prejudice.           The evidence at issue was

probative to the question of motive. See State v. Richards, 809 N.W.2d 80, 93

(Iowa 2012) (holding past acts that reveal the emotional relationship between the

defendant and victim are “highly probative of the defendant’s probable motivation
                                         7

and intent in subsequent situations” (internal quotation marks omitted)); State v.

Barnes, 791 N.W.2d 817, 826-27 (Iowa 2010) (holding evidence of defendant’s

anger at the victim was admissible to show the relationship between them,

probative of the defendant’s motive, and the danger of unfair prejudice did not

outweigh the probative value); State v. Reynolds, 765 N.W.2d 283, 290-91 (Iowa

2009) (noting “we have recognized that the prior relationship between the

defendant and the victim is relevant in establishing intent and/or motive”). Unlike

the risk created by evidence implicating the accused of committing a similar

crime, the risk of the evidence concerning the victim’s possible involvement in an

earlier shooting causing unfair prejudice to Gray was low.            Cf. State v.

Henderson, 696 N.W.2d 5, 13 (Iowa 2005) (“It would be extremely difficult for

jurors to put out of their minds knowledge that the defendant had [committed a

similar crime] in the past and not allow this information to consciously or

subconsciously influence their decision.”). To the extent the challenged evidence

implicated Perez in the Thompson’s death, it was more prejudicial to the State

than Gray. See State v. Shearon, 449 N.W.2d 86, 87-89 (Iowa 1989) (denying

the defendant’s claim the court erred in refusing to admit evidence the homicide

victim had raped someone two hours before he was killed because, while

relevant, the evidence could have influenced the jury to believe the victim “got

what he deserved” and shifted the focus from the defendant’s guilt to the subject

of the victim’s alleged reprehensible conduct). The district court did not abuse its

discretion in admitting the evidence.
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       III. Ineffective Assistance of Counsel.

       Finally, Gray contends his trial counsel was ineffective in failing to argue

his multiple punishments for intimidation with a dangerous weapon violated the

Double Jeopardy Clause.            He argues the evidence establishes only one

continuous act of shooting at or into a vehicle. Because his claim implicates a

constitutional violation, our review is de novo. See State v. Clay, 824 N.W.2d

488, 494 (Iowa 2012). Ordinarily, we preserve such claims for postconviction-

relief proceedings to allow the record to be fully developed. Id. However, we will

resolve ineffective-assistance claims on direct appeal where the record is

adequate. Id.

       Ineffective assistance of counsel occurs where counsel’s subpar

performance of duties prejudices the defendant. Id. at 494-95. Therefore, in

order to prevail, Gray must show his trial counsel failed to perform an essential

duty and the resulting prejudice from that failure. See id. at 495. He must show

both or his claim fails. See id.

       The Double Jeopardy Clause protects against multiple punishments for

the same offense.       State v. Schmitz, 610 N.W.2d 514, 515 (Iowa 2000).

However, a single course of conduct may give rise to multiple charges and

convictions, State v. Velez, 829 N.W.2d 572, 584 (Iowa 2013), and multiple

punishments can be assessed after a defendant is convicted of two different

offenses. State v. Smith, 573 N.W.2d 14, 19 (Iowa 1997). Here, Gray was

convicted of the class “C” offense of intimidation with a dangerous weapon with

the intent and the class “D” offense of intimidation with a dangerous weapon

without intent.    Although two categories of crimes are differentiated for
                                          9


sentencing purposes, Iowa Code section 708.6 defines the offense of intimidation

with a dangerous weapon. See State v. Garr, 461 N.W.2d 171, 174 (Iowa 1990)

(“[S]pecifying the degrees of theft does not change theft into a different offense; it

merely provides a system of categorizing degrees of theft in order to classify the

crime for sentencing.”). Accordingly, the imposition of multiple sentences for the

varying degrees of the offense violates the Fifth Amendment double jeopardy

protection. See State v. Grindele, 577 N.W.2d 858, 860 (Iowa 1998) (noting first-

degree and second-degree theft are the same offense under Garr, and therefore,

the imposition of multiple sentences for the different degrees of theft violated the

defendant’s Fifth Amendment rights).

       The State argues Gray was convicted of separate offenses because the

marshalling instructions specified Ballew as the victim of intimidation with a

dangerous weapon and Perez as the victim of intimidation with a dangerous

weapon with intent. However, the offense criminalized by the legislature here is

the act of shooting “into . . . a . . . vehicle . . . occupied by another person.” In

other words, it is the act of shooting into a vehicle that creates the offense, so

long as the vehicle is occupied by at least one person. Therefore, the number of

passengers inside the vehicle is irrelevant because the “victim” is the occupied

vehicle. See State v. Ross, 845 N.W.2d 692, 699 (Iowa 2014) (noting there is

“no single victim involved” in prosecution for intimidation with a dangerous

weapon with intent under section 708.6 where defendant was charged with

shooting into “an assembly of people”; rather, “the victim is the assembly of

people as a whole”). Had the legislature made it an offense to shoot at a person

in a vehicle, a defendant who shot at an occupied vehicle would commit a
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different offense against each occupant. As the statute is written, there can only

be one offense committed for each act against an occupied vehicle. Because

Gray shot at or into a single vehicle, he only committed one offense of

intimidation with a dangerous weapon.1

          Had his trial counsel raised a double jeopardy challenge, the court would

have only upheld Gray’s conviction for intimidation with a dangerous weapon with

intent.    Counsel’s failure to challenge Gray’s convictions on double jeopardy

grounds prejudiced Gray. Accordingly, counsel was ineffective in failing to raise

the argument below.

          For the above reasons, we vacate Gray’s conviction and sentence for

intimidation with a dangerous weapon.             We affirm Gray’s convictions of

intimidation with a dangerous weapon with intent and felon in possession of a

firearm, and remand to the district court for sentencing on those convictions.

          AFFIRMED IN PART, VACATED IN PART, AND REMANDED.




1
  We recognize Gray could have been found guilty of committing multiple acts of
intimidation with a dangerous weapon against the same victim. Ross, 845 N.W.2d at
701 (“[E]vidence of the same two people experiencing a reasonable apprehension of
fear may support multiple counts of intimidation with a dangerous weapon with intent.”).
This determination depends on whether a defendant’s conduct is “one continuous act or
a series of separate and distinct acts.” Id. at 705. However, this is a question for the
jury to decide. See State v. Love, 858 N.W.2d 721, 724 (Iowa 2015) (noting where a
defendant was charged with separate acts of assault, the jury was required to engage in
the fact-finding necessary to support a finding of multiple assaults). Although the
evidence may support a finding Gray committed two separate and distinct acts
supporting multiple counts of intimidation with a dangerous weapon, the jury was not
asked to make that determination, and therefore, we cannot affirm his convictions on this
basis. See id. at 725. (holding the defendant’s assault convictions must merge where
the jury was not asked to determine whether the defendant committed separate and
distinct acts of assault “even though the evidence might have been sufficient to support
separate crimes”).
