                    IN THE COURT OF APPEALS OF IOWA

                                      No. 13-1968
                                 Filed March 25, 2015

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

RONALD HAWKINSON,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Polk County, Arthur E. Gamble,

Judge.



      A defendant appeals from his convictions for first-degree murder.

AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Robert P. Ranschau,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Mary A. Triick, Assistant Attorney

General, John P. Sarcone, County Attorney, and Jeffrey K. Noble, Assistant

County Attorney, for appellee.



      Heard by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
                                         2



MULLINS, J.

       Ronald James Hawkinson appeals from his conviction on two counts of

murder in the first degree. He contends his trial counsel was ineffective in failing

to ensure the court complied with Iowa Rule of Criminal Procedure 2.17(1) when

he waived jury trial; the court abused its discretion by admitting testimony

recounting a conversation in which he stated he would be going back to jail; and

the court erred in finding the evidence was sufficient to support convictions for

first-degree murder rather than voluntary manslaughter as a result of

provocation. We affirm the evidentiary ruling and the conviction and preserve the

ineffective-assistance-of-counsel claim for postconviction relief.

I.     BACKGROUND FACTS & PROCEEDINGS.

       Serif “Sam” Hidic was the owner of Drina Trucking, Inc. in Des Moines.

Hidic employed the defendant, Hawkinson, as a truck driver and Robert “Bob”

Smoot as a dispatcher. Deb Seibert owned Seibert Trucking, which was located

on the same property as Drina Trucking. Carol Jaramillo handled paperwork,

payroll, and other matters for Drina Trucking.

       In 2011, Hawkinson and Hidic entered into an agreement whereby Hidic

loaned Hawkinson money for the purchase of a truck, and Hawkinson agreed to

use the truck to work for Drina. This agreement led to a financial dispute, and

Hidic filed a lawsuit against Hawkinson. After Hawkinson failed to keep up with

loan repayments, Hidic demanded Hawkinson turn the truck over to Drina.

Hawkinson told his friend, Roger DeGregory, “He would not lose that truck and

he would kill that motherfucker [Hidic] before he ever got that truck back.”
                                  3



The district court made the following undisputed findings of fact:

         In addition to his financial dispute with Hidic, Hawkinson had
personal problems. He went through a bad divorce. Devastated by
his marital problems, Hawkinson attempted suicide by trying to
asphyxiate himself in a storage shed in Boone, Iowa. A no-contact
order entered against Hawkinson in favor of his ex-wife prevented
him from seeing his daughter. Hawkinson was behind on child
support . . . .
         On April 26, 2012, Hidic and Hawkinson settled their lawsuit
. . . . Hawkinson agreed to deliver the truck to Hidic. Hidic agreed
to pay the April 2012 truck payment and to pay Hawkinson $3,000.
Upon payment in full the truck was to be titled in the name of Drina
and Hidic.
         On the afternoon of May 16, 2012, [a Drina employee]
picked up Hawkinson’s tractor truck at the Kum & Go at Guthrie
Avenue and I-235 in Des Moines. The key was left in the truck . . . .
         On May 16, 2012, Carol Jaramillo was supposed to prepare
payroll checks for the Drina drivers. Hidic told [Jaramillo] not to do
a check for Hawkinson and he would take care of it. Hawkinson
came in on May 16th looking for his paycheck, but he was told it
was not ready. On May 17, 2012, Hidic told [Jaramillo] that he
wanted to fire Hawkinson. Smoot told [Jaramillo], “He did it again.”
Hidic was upset because Hawkinson did not pick up a load in
Chicago. This was the second time Hawkinson failed to pick up an
assigned load . . . .
         Instead of going to Chicago to pick up that load for Drina,
Hawkinson took his truck in another direction and picked up his 20
year old son, Dylan . . . .
         Hawkinson was on probation.             Hawkinson knew that
possession of a firearm would violate the conditions of his
probation.      His family, friends and coworkers did not know
Hawkinson to own, possess or carry firearms prior to May 17, 2012.
However, Hawkinson was armed with a .22-caliber semi-automatic
rifle with a sawed-off stock on May 17, 2012 . . . .
         On the morning of May 17, 2012, Hawkinson returned to
Drina. Hawkinson visited Deb Seibert and talked to her for about
an hour late that morning. Deb Seibert was aware Hawkinson and
Hidic had an ongoing dispute over money. She thought Hawkinson
was there to work it out and make things right with Hidic. At times
during this conversation Hawkinson was upset, tearful and angry.
Hawkinson was distraught because his no-contact order was
extended while he was out on the road so that he could not see his
daughter. Hawkinson was angry because someone at Drina
wanted him to become involved in drug activity with his semi.
Hawkinson told Deb Seibert that Hidic had asked him to pick up
                                            4



       packages and when Hawkinson refused Hidic became very angry
       with him. As a result, Hawkinson was missing out on some loads.
       Hawkinson was upset about Hidic. Hawkinson had given back the
       keys to the truck and said that he “was done dealing with Sam
       [Hidic].” Hawkinson told Deb Seibert that he “was not going to
       allow that drug-running gangster to take care of him or bully him
       around.”
                During this conversation, Hawkinson told Deb Seibert, “I’m
       going back to prison.” Seibert knew Hawkinson was on probation.
       She was shocked by his statement. Deb Seibert asked, “What did
       you do?” Hawkinson responded, “I haven’t done anything. I
       wouldn’t do anything that wasn’t worth going back to prison
       for” . . . .
                ....
                Deb Seibert left around 1:00 p.m. on May 17, 2012, to go to
       her daughter’s graduation. Hawkinson returned to Winterset
       [where he lived with his parents, Joan and Tom Winters] to have
       lunch with his girlfriend, Rhonda Plew, and Dylan at Joan and Tom
       Winters’ house . . . . Hawkinson left in his black pickup with
       Dylan . . . . Supposedly, Hawkinson and Dylan were going to put in
       job applications in Des Moines. However, Hawkinson dropped
       Dylan off somewhere in Winterset. Dylan was seen at a Kum & Go
       in Winterset that afternoon. Hawkinson traveled to Des Moines
       alone with the .22-caliber rifle with a sawed-off stock loaded with
       .22 short bullets and one .22 long or long rifle bullet.[1] Around 5:00
       p.m., Joan Winters took Rhonda Plew around Winterset to get job
       applications. Joan did not know that Dylan was still in Winterset
       and that Hawkinson had gone to Des Moines alone.
                By the time Hawkinson returned to Drina, Deb Seibert, [],
       Carol Jaramillo, and [other employees] had all left work for the day.
       Hawkinson arrived at about 5:00 p.m. on May 17, 2012. Only Bob
       Smoot and Sam Hidic remained on the property. The evidence
       clearly establishes that Hawkinson shot Smoot and Hidic, but the
       order of the shooting cannot be conclusively determined. However,
       based on the physical evidence at the crime scene, the Court
       reasonably infers that Hawkinson approached Smoot in the foyer
       area of the office shed and shot him several times. Hawkinson
       then shot Hidic in front of the service door on the west side of the
       Morton Building. Hidic went down on his chest in a pool of blood on
       the doormat outside the Morton building. At this point, neither


1
  Hawkinson takes issue with the district court’s finding that he was armed as he traveled
to Des Moines. We agree that the record is unclear as to the source of the gun and
when Hawkinson acquired it. Nonetheless, he was not known to have owned a gun prior
to this incident and obviously acquired it at some point. Our analysis of the legal issues
is not affected by this factual uncertainty.
                                  5



victim was mortally wounded. Both victims could have survived
these injuries with prompt medical attention. Hawkinson turned his
attention to Smoot in the office shed. Smoot had moved from the
foyer in the back office in the shed. As Smoot was calling 911 on
the office landline, Hawkinson shot him again including two shots to
the back. This shooting is recorded on the 911 call placed by Bob
Smoot to the Des Moines Police Dispatch at 5:02 p.m. on May 17,
2012. On the recording of this 911 call, Smoot screams, “No,
Ronnie! Ronnie, no! Ronnie, no! No, Ronnie!” Smoot fell to the
floor of the office as Hawkinson shot four times. After the fourth
shot, 27 seconds elapsed on the 911 recording. Then four more
shots are recorded on the 911 call as Hawkinson shot Hidic on the
gravel walkway between the Morton building and the northeast
corner of the office shed. Hidic died at the north end of the
walkway.
        Not all of the shots were recorded on the 911 call.
Hawkinson shot each victim seven times. The autopsy revealed all
of the shots were to the face, head and chest of the victims. Police
recovered a total of fourteen .22-caliber short shell cases with a “U”
head stamp and one .22-caliber long or long rifle shell casing with a
“C” head stamp at the scene. Police also recovered a live .22-
caliber short round with a “U” head stamp from the washing
machine and trash bag from Joan Winter’s house [in Winterset].
        ....
        By the time police arrived, Hawkinson had fled the scene in
his black pickup truck. Hawkinson’s U.S. Cellular phone records
show where he went as his cell phone pinged off of towers on May
17, 2012, between 5:08 p.m. and 7:34 p.m. Hawkinson exchanged
cell phone calls with his mother, Joan Winters, and his girlfriend,
Rhonda Plew, after the shooting. From Hawkinson’s U.S. Cellular
phone records, it appears Hawkinson fled north away from the
scene on S.E. 14th Street, then west on I-235, and back south on
Fleur Drive or S.W. 9th Street toward Indianola and Winterset.
        As Joan Winters was taking Rhonda Plew around Winterset
to get job applications, she got a call from Hawkinson. He said he
was low on gas and asked her to meet him and pick him up.
Hawkinson told his mother that he loved her. Hawkinson sounded
depressed and suicidal . . . . he said he didn’t want to talk about it
right then. Joan Winters called her husband. He called Hawkinson
back and said she was on her way. Hawkinson told her to meet
him on the other side of Martensdale. Joan asked Hawkinson what
was wrong and he again replied that he didn’t want to talk about it.
        Joan Winters drove east in her Chevrolet Tahoe on Highway
92 with Rhonda Plew. During this time, Joan and Rhonda
exchanged cell phone calls with Hawkinson. Joan travelled through
Martensdale and took a right on a road south of Hwy. 92 where she
                                              6



       met Hawkinson in his black pickup. Rhonda Plew got out of Joan’s
       Tahoe and got in Hawkinson’s truck. Hawkinson got in Joan’s
       Tahoe carrying what looked like a gun wrapped in a shirt with a
       wooden piece sticking out. It was bigger than a handgun.
       Hawkinson was emotional. He said he shot someone or someone
       got shot. He said, “Let’s get the hell out of here.” Joan started
       driving back north on Hwy. 92 . . . . As Joan headed back west on
       Hwy. 92 toward Winterset, Hawkinson said, “I need to get rid of
       this.” Joan assumed he meant the gun. Joan turned south on
       Bevington Park Road and stopped on a bridge over the [Middle][2]
       River. Hawkinson got out of the Tahoe and threw the gun in the
       river. He came back to the Tahoe with his shirt.
               Joan then took Hawkinson to her home [in Winterset]. As
       they pulled up to the house, Rhonda was getting out of
       Hawkinson’s black pickup and going through the driver’s side.
       Hawkinson put on his shirt and went in the house. He took off his
       black boots and placed them on a rack in the mudroom.
       Hawkinson took off his shirt and jeans and put them in a washer
       with a load of Dylan’s clothes. Hawkinson went to get cleaned up.
       Joan put the clothes through a wash cycle. Hawkinson came up to
       Tom Winters in the yard and said, “Well, Dad, I shot somebody
       today” . . . .
               When Deb Seibert came out from her daughter’s graduation,
       she noticed missed calls and text messages on her phone about a
       shooting at the property of her trucking company. She called the
       police and met detectives at her office about 6:00 p.m. Deb Seibert
       told the detectives that Hawkinson had a dispute with Hidic and that
       earlier in the morning of May 17, 2012, Hawkinson had stated to
       her that he was going back to prison and he wouldn’t do anything
       that was not worth going back to prison for. She told police that
       Hawkinson was on probation.             She provided police with
       Hawkinson’s . . . phone number and address in Winterset.

(Internal citations to record omitted.) Police and investigators later recovered

Hawkinson’s clothing and boots from the day as well as one more bullet casing,

stamped with a “U,” from the washer. A small blood stain was found on the

inside of a boot showing DNA from at least two people, but individual DNA



2
  In a post-trial motion, the State asked the court to amend its findings to reflect the river
into which Hawkinson threw the gun was the Middle River, not the North River. The
court granted this motion and amended its findings of fact, conclusions of law, and
verdict accordingly.
                                         7



profiles could not be obtained. A blood stain from the sole of a boot matched the

DNA profile for Hidic. Joan Winters showed officers the area of the river where

Hawkinson had thrown the gun. A forensic dive teamed recovered a .22-caliber

semi-automatic rifle with a sawed-off stock. The district court explained:

              [A DCI criminalist] examined the weapon and found it to be a
       Sport King .22-caliber semi-automatic rifle that was chambered for
       both .22-caliber short and .22-calibert long and long rifle bullets.
       The magazine had the capacity to hold up to fourteen .22-caliber
       short and one .22-caliber long or long rifle bullets. The spent shell
       casings recovered at the crime scene and slugs recovered at
       autopsy have the same class characteristics as the weapon
       recovered from the river, but due to rust there are not enough
       individual characteristics to conclude this rifle fired these
       bullets . . . The fact this weapon could fire both .22-caliber short
       and .22-caliber long and long rifle ammunition is uncommon and
       narrows the field of possible murder weapons.

       The State charged Hawkinson with two counts of murder in the first

degree, pursuant to Iowa Code sections 707.1 and .2 (2011). Hawkinson waived

jury trial and the case was tried to the bench. The court found Hawkinson guilty

of two counts of first-degree murder. Hawkinson appeals, contending his trial

counsel was ineffective in failing to ensure the court complied with Iowa Rule of

Criminal Procedure 2.17(1) when he waived jury trial; the court abused its

discretion by admitting Seibert’s testimony recounting her conversation with him

about going back to jail; and the court erred in finding the evidence was sufficient

to support a conviction for first-degree murder rather than voluntary

manslaughter as a result of provocation.
                                          8



II.      ANALYSIS.

         A.       Ineffective Assistance of Counsel—Waiver of Jury Trial.

         Hawkinson contends his counsel was ineffective in failing to object when

the court failed to obtain his waiver of jury trial in writing, as required under Iowa

Rule of Criminal Procedure 2.17(1). “Ordinarily, we do not decide ineffective-

assistance-of-counsel claims on direct appeal.” State v. Tate, 710 N.W.2d 237,

240 (Iowa 2006).        “We prefer to reserve such questions for postconviction

proceedings so the defendant’s trial counsel can defend against the charge.” Id.

We depart from this rule when the record is adequate to evaluate the appellant’s

claim. Id.

         We review ineffective-assistance-of-counsel claims de novo.         Lado v.

State, 804 N.W.2d 248, 250 (Iowa 2011). To establish an ineffective-assistance-

of-counsel claim, the defendant must show that (1) counsel failed to perform an

essential duty and (2) prejudice resulted. Strickland v. Washington, 466 U.S.

668, 687 (1984). Counsel is not ineffective for not raising a meritless claim.

State v. Halverson, 857 N.W.2d 632, 635 (Iowa 2015).

         “The adequacy of a jury-trial waiver is a mixed question of fact and law

which we decide de novo.”         State v. Feregrino, 756 N.W.2d 700, 703 (Iowa

2008).        Iowa Rule of Criminal Procedure 2.17(1) requires that a defendant

waiving his right to jury trial must do so “voluntarily and intelligently” and such

waiver must be obtained “in writing and on the record.”            In Feregrino, our

supreme court overruled prior case law and held there is no presumption that

prejudice occurs when the court fails to comply with the requirements of rule
                                        9



2.17(1). See id. at 707-09. In State v. Keller, the court held that even though the

presumption of prejudice was eliminated by the Feregrino decision, counsel’s

failure to assure compliance with rule 2.17(1) established, as a matter of law, a

breach of an essential duty by counsel. 760 N.W.2d 451, 453 (Iowa 2009). In

those cases, the court preserved each defendant’s ineffective assistance of

counsel claims for postconviction relief for a determination of whether the

defendant was prejudiced as a result. Id.; Feregrino, 756 N.W.2d at 708. In

Keller, the court preserved the issue for postconviction relief because it

determined the record was inadequate for review; there was no record of an oral

colloquy or testimony from the defendant as to whether she would have waived

jury trial had there been an oral colloquy. Keller, 760 N.W.2d at 453. The court

found an evidentiary hearing was necessary. Id.

       The State readily concedes the court did not obtain a written waiver from

Hawkinson.     However, the court conducted an on-the-record colloquy with

Hawkinson in which he waived jury trial. Hawkinson claims that had he been

provided with an opportunity to give a written waiver, he would have decided not

to proceed and would have chosen to go to trial with a jury.        Therefore, he

contends the error resulted in prejudice to him. He argues, because his case is

before this court on a direct appeal, there has been no opportunity for him to

develop a record that he asserts would reflect he would have insisted on going to

trial with a jury.   Accordingly, he argues we should preserve the issue for

postconviction relief.   We agree with Hawkinson that there has been no

opportunity for either party to establish an evidentiary record for Hawkinson’s
                                       10



claim that he was prejudiced by counsel’s failure to ensure the court complied

with rule 2.17(1). Accordingly, we preserve the issue for postconviction relief

proceedings.

      B.       Admission of Conversation with Seibert.

      Hawkinson filed a motion in limine to exclude the conversation he had with

Seibert about going back to prison and the statements she later made to law

enforcement officers connecting his earlier statements and the crime.

Hawkinson argued the conversation was irrelevant and unduly prejudicial

because it disclosed the existence of his prior criminal history. Hawkinson did

not seek to exclude the statements regarding the no-contact order between

Hawkinson and his ex-wife and daughter or the fact that Hawkinson was on

probation at the time of the crime. The State responded the conversation about

going back to prison was relevant as direct evidence of Hawkinson’s

premeditation and to counter the provocation affirmative defense.

      The court ruled,

              [O]rdinarily, the Court would be very cautious in the
      admission of evidence of the defendant’s criminal history or the
      prior prison sentence.
              However, in this case it appears to the Court that the
      defendant’s incriminating statement that he said he was or would
      be doing something that would cause him to be going back to
      prison, specifically in reference to perhaps two issues, but one of
      the issues was the ongoing conflict with one of the victims of the
      crime that occurred later that day, Mr. Hidic, the Court believes that
      the evidence is inextricably intertwined with the story of the crime.
      It’s relevant to prove the defendant’s state of mind, his intent,
      premeditation and deliberation.
              The evidence is prejudicial to the defense—the Court does
      not question that—but it is highly relevant and probative to material
      issues in this case. And the probative value is not substantially
      outweighed by the prejudicial effect to the defendant, especially
                                           11



       when, as the Court expects will be the case, the statement is put in
       context during the course of the testimony of Ms. Seibert and the
       officer that she told this to.

Following the court’s ruling, defense counsel and the court had the following

conversation:

               DEFENSE COUNSEL: And, Your Honor, in Paragraph 6 [of
       the motion in limine] we have concerns, first of all, with this long
       statement and conversation with Deb Seibert in her previous days
       of the homicide or the day of the homicide on May 17.
               Again—and this goes back to the issue about the statement
       about the prison—I know the Court has already ruled on that, but
       we have concerns about her elaborating on that the defendant was
       clearly upset with Sam Hidic and alluding to something that would
       send him back to prison, as we feel that—you know, as we made
       the record before that this is speculative, but if the Court is going to
       allow this, again, we’re okay with during that course of the
       conversation about the fact that he was on probation, about the no-
       contact order. We are okay with that.
               THE COURT: Well, I think that I’ll just allow you to object as
       you see necessary during the course of her testimony with regard
       to the scope of it and whether it’s a narrative and whether it’s
       cumulative and so forth, and I’ll just rule as we go along. But
       generally I think you know what the parameters of the admissibility
       will be.

At trial, upon approaching Seibert’s recounting of Hawkinson’s statement that he

was going back to prison, defense counsel objected based on hearsay. The

court overruled the objection and Seibert testified as to the whole conversation.

On appeal, Hawkinson contends the statements were inadmissible as evidence

of prior bad acts and because, contrary to the court’s ruling, they were not

inextricably intertwined with the crime.

                1.   Error Preservation.

       The State first contends Hawkinson failed to preserve error on his claims

that the statements should not have been admitted.           Hawkinson asserts he
                                         12



preserved error through the motion in limine wherein he argued the conversation

was irrelevant and would unduly prejudice him by disclosing his prior criminal

history.

       Generally, a motion in limine does not preserve error because the error

does not occur until the matter is presented at trial. State v. Harlow, 325 N.W.2d

90, 91 (Iowa 1982).      Therefore, usually, an objection at trial is required to

preserve error. Id. There is an exception to this rule, and the objecting party

need not renew its objections, if the ruling on the motion in limine “amounts to an

unequivocal holding concerning the issue raised.” Id. The State contends the

court’s ruling on the motion in limine did not constitute an unequivocal holding on

the issue because the court also instructed defense counsel to object to Seibert’s

testimony as it was given and because the ruling was issued at a time when the

parties believed the trial would be by jury.

       The brief conversation the court had with defense counsel after its ruling

referred to an issue separate from the prior claims of inadmissibility based on

prior criminal offenses, relevancy, and undue prejudice.      Counsel referenced

paragraph 6 of the motion in limine, and objected to the statements Seibert made

to law enforcement officers that Hawkinson, “was alluding to committing an act

that would send him [b]ack to prison.” Defense counsel’s objections were to

Seibert’s statements to law enforcement officers in which she speculated that

Hawkinson’s statements referred to his intent to commit a crime against Hidic

that would send him back to prison. Counsel continued to argue in limine to the

admission of such testimony as being speculative. The court then encouraged
                                         13



counsel to make further objections as he thought necessary during testimony.

The court ended the discussion with “[b]ut generally I think you know what the

parameters of the admissibility will be.” We assume, without deciding, that the

ruling upon whether Hawkinson’s statements to Seibert were inadmissible for

disclosing a prior criminal offense, irrelevancy, or undue prejudice was

unequivocal. We address the merits based on that assumption.3

               2.     Merits.

         Generally, we review questions involving the admissibility of evidence for

an abuse of discretion. State v. Dudley, 856 N.W.2d 668, 675 (Iowa 2014). An

abuse of discretion occurs “[w]hen the district court exercises its discretion on

grounds or for reasons clearly untenable or to an extent clearly unreasonable.”

Id. A ground or reason is untenable if it is “based on an erroneous application of

the law or not supported by substantial evidence.” Id. Even if there has been an

abuse of discretion, we need not reverse if the inclusion or exclusion was

harmless to the defendant.       State v. Reynolds, 765 N.W.2d 283, 288 (Iowa

2009).

         Hawkinson complains the statements were inadmissible as evidence of

prior bad acts under Iowa Rule of Evidence 5.404(b). Under rule 5.404(b):

         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. It may, however, be admissible for other
         purposes, such as proof of motive, opportunity, intent, preparation,
         plan, knowledge, identity, or absence of mistake or accident.




3
  We also note that the ruling on the motion in limine was made when the parties
contemplated a jury trial, not a bench trial.
                                            14



(Emphasis added.) “Thus, such evidence is not admissible to demonstrate the

defendant has a criminal disposition and was thus more likely to have committed

the crime in question.” Reynolds, 765 N.W.2d at 289. However, prior bad acts

are admissible if they are offered for the purpose of establishing motive or intent.

Iowa R. Evid. 5.404(b).

         Before evidence of prior bad acts can be considered admissible,
         the court must (1) find the evidence is relevant and material to a
         legitimate issue in the case other than a general propensity to
         commit wrongful acts, and (2) determine whether the probative
         value of the evidence is substantially outweighed by the danger of
         unfair prejudice to the defendant.

Reynolds, 765 N.W.2d at 289-90.             Evidence is relevant when 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. Evid. 5.401. Although the conversation with

Seibert discloses that Hawkinson has a criminal history involving some period of

incarceration, it is also highly probative of Hawkinson’s state of mind shortly

before the murders occurred.         Hawkinson was tearful, upset, and angry; the

primary source of his frustrations was his boss, Hidic; he expressed frustration

and anger at the way Hidic had treated him. These statements make it more

likely that Hawkinson had motive and intent consistent with a first-degree murder,

that is, a killing with malice aforethought with premeditation and deliberation.4

Therefore, the conversation is relevant and material to a legitimate issue in the

case, other than a general propensity toward criminal behavior.        By showing




4
    See the elements of first-degree murder below.
                                           15



Hawkinson had time to suppress the impulse to kill before acting, the evidence is

also material to counter the defense that this was a heat-of-passion killing.5

         We acknowledge this legitimate purpose for offering the evidence does

not necessarily preclude the incidental effect of showing a propensity for criminal

behavior. However, we conclude the effect of the inclusion of these statements

was minimal because the defense did not object to the introduction of other

evidence of Hawkinson’s criminal record including the fact he was on parole and

was subject to a no-contact order.

         We must also determine whether the probative value of the evidence is

outweighed by the danger of unfair prejudice to the defendant. “Unfair prejudice

arises when the evidence would cause the jury to base its decision on something

other than the proven facts and applicable law.” Reynolds, 765 N.W.2d at 290.

We consider the following factors:

         [T]he 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 and
         weakness of the evidence on the relevant issue, and the degree to
         which the fact finder will be prompted to decide the case on an
         improper basis.

Id. As discussed, the evidence is highly probative of Hawkinson’s state of mind

shortly before the murders occurred. Our supreme court has determined, “The

prejudicial effect of other-crimes evidence is reduced in the context of a bench

trial.” State v. Casady, 491 N.W.2d 782, 786 (Iowa 1992). We have no reason

to doubt that the court made the proper use of this evidence, as proof of

Hawkinson’s state of mind, rather than basing its decision on an inappropriate


5
    See the elements of voluntary manslaughter below.
                                          16



factor.     The probative value of the evidence heavily outweighed the risk of

prejudice to the defendant in this case. “Clearly the likelihood of an improper use

of the evidence is reduced [in a prior bad acts case] by the fact that the [] case

was tried to the court.” State v. Taylor, 689 N.W.2d 116, 130 (Iowa 2004).

          The district court made both of the necessary findings: that the evidence

was relevant and material to a legitimate issue in the case and that it was more

probative than prejudicial. The court’s conclusions to this effect, stated above,

were consistent with the law and not based on reasons either untenable or

unreasonable. There was no abuse of discretion.

          C.     Sufficiency of the Evidence.

          Hawkinson contends the evidence was insufficient to support convictions

for murder in the first degree. We review sufficiency-of-the-evidence challenges

for correction of errors at law. State v. Randle, 555 N.W.2d 666, 671 (Iowa

1996). We uphold a finding of guilt if the verdict is supported by substantial

evidence.      State v. Henderson, 696 N.W.2d 5, 7 (Iowa 2005).         Evidence is

substantial if a rational trier of fact could find the defendant guilty beyond a

reasonable doubt. Id. We consider all evidence in the case, including that which

detracts from the verdict. Id. We view the evidence in the light most favorable to

the State. Id.

          In order to find Hawkinson guilty of murder in the first degree under Iowa

Code sections 707.1 and .2, the State was required to prove each of the

following elements:

                 1.    On or about May 17, 2012, the defendant shot the
          victims, (Robert Smoot, Count I and Serif Hidic, Count II).
                                          17



             2.     The victims died as a result of being shot by the
       defendant.
             3.     The defendant acted with malice aforethought.
             4.     The    defendant       acted     willfully,    deliberately,
       premeditatedly and with a specific intent to kill the victims.

The court considered the following definitions taken from the Iowa Criminal Jury

Instructions:

             “Malice” is a state of mind which leads one to intentionally do
       a wrongful act to the injury of another or in disregard of the rights of
       another out of actual hatred, or with an evil or unlawful purpose.
             “Malice aforethought” is a fixed purpose of designed to do
       some physical harm to another which exists before the act is
       committed. It does not have to exist for any particular length of
       time.
             If a person has the opportunity to deliberate and uses a
       dangerous weapon against another resulting in death, you may, but
       are not required to infer that the weapon was used with malice,
       premeditation and specific intent to kill.
             Malice may be inferred from the defendant’s use of a
       dangerous weapon.
             A firearm is, by law, a dangerous weapon.

To find Hawkinson guilty of voluntary manslaughter, the court had to find:

              1.      On or about May 17, 2012, the defendant shot the
       victims, (Robert Smoot, Count I and Serif Hidic, Count II).
              2.      The victims died as a result of being shot by the
       defendant.
              3.      The act of the defendant was done solely by reason
       of a sudden, violent and irresistible passion resulting from serious
       provocation.
              A “serious provocation” is conduct that would cause a
       reasonable person to have a sudden, violent and irresistible
       passion. Passion is not sudden, violent and irresistible if there is an
       interval of time during which a reasonable person would, under the
       circumstances, have time to reflect and bring his or her passion
       under control and suppress the impulse to kill.

       Hawkinson contends the evidence does not support the convictions for

first-degree murder because there was no evidence of premeditation or a fixed

design or purpose to do harm before the act was committed. Rather, Hawkinson
                                        18



asserts, the evidence supports a conclusion that the attack was done with little

forethought and as a result of a sudden and irresistible urge due to provocation.

The only dispute here is over the state of mind Hawkinson had at the time of the

shootings.

      Malice can be inferred here from the use of a gun. Other evidence in the

record also supports a finding that Hawkinson acted with malice aforethought.

Hawkinson had to obtain a gun, which no one else knew him to previously own.

Upon leaving for Drina on May 17th, he told his parents he was going to get job

applications with Dylan, but in fact he did not, as his phone records and

subsequent conduct show. He dropped Dylan off in Winterset to proceed to

Drina alone. This evidences a fixed plan and purpose to go to Drina alone that

afternoon. Hawkinson had been at the Drina property earlier in the day talking

with Seibert. He went to Drina at 5:00 p.m. when all the other employees had left

for the day. He also expressed his purpose or design earlier to DeGregory,

stating he would not give up his truck, “he would kill that motherfucker [Hidic]

before he ever got that truck back.” He turned the truck over the day before the

shooting. On the day of the shooting, mere hours beforehand, he told Seibert he

was upset with Hidic and would be going back to prison if his acts were “worth

going back to prison for.”     Hawkinson shot both victims multiple times, first

delivering non-fatal wounds. He had time between those shots to deliberate on

his actions, even hearing Smoot beg him to stop. He chose to continue his

shooting spree, subsequently shooting Hidic and Smoot additional times,

delivering the fatal wounds.
                                          19



       The conflict between Hawkinson and Hidic was not of recent vintage.

They had been in a financial dispute for over a year. They presumably had

settled the dispute several weeks before the shooting. Hawkinson handed the

truck over, pursuant to the settlement, the day before the shooting. He had time

the morning of the shooting to talk with Seibert and discuss his feelings. He

anticipated he would be going back to jail soon.          This sequence of events,

including the time that had passed since the lawsuit and the opportunities

Hawkinson had to discuss and consider his conduct and plan his actions, does

not include conduct by any actor that would cause a sudden, violent, or

irresistible passion. If something more happened when Hawkinson encountered

Hidic and Smoot at the Drina office to arouse a sudden, violent, and irresistible

passion, no evidence of that was produced.

       The record does not support Hawkinson’s argument that we should find

his actions were done solely by reason of a sudden passion resulting from

provocation.   From all the foregoing, we can conclude there was substantial

evidence from which a rational trier of fact could find that Hawkinson acted

willfully, deliberately, premeditatedly, and with specific intent to kill.   Thus, we

affirm the convictions.

III.   CONCLUSION.

       We preserve for postconviction relief Hawkinson’s claim that his trial

counsel was ineffective in failing to ensure the court complied with Iowa Rule of

Criminal Procedure 2.17(1). The court did not abuse its discretion in admitting
                                        20



Seibert’s testimony. Substantial evidence supports the convictions for murder in

the first degree. We affirm the convictions.

      AFFIRMED.
