IN THE COURT OF APPEALS OF IOWA
No. 13-1949
Filed October 29, 2014
STATE OF IOWA,
Plaintiff-Appellee,
vs.
ANDREW SCOTT YERHART,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Lee (South) County, John G. Linn,
Judge.
Andrew Scott Yerhart appeals from his conviction after jury trial of
attempted murder, going armed with intent, and harassment in the first degree.
AFFIRMED.
Mark C. Smith, State Appellate Defender, and Rachel C. Regenold,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Bridget A. Chambers, Assistant
Attorney General, Michael Short, County Attorney, and Bruce C. McDonald,
Assistant County Attorney, for appellee.
Considered by Vaitheswaran, P.J., McDonald, J., and Goodhue, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
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GOODHUE, S.J.
Andrew Scott Yerhart appeals from his conviction after jury trial of
attempted murder, going armed with intent, and harassment in the first degree.
I. Background Facts and Proceedings
The State filed charges after an incident that occurred on August 10,
2013. The three charges levied were initially filed separately but were later
consolidated. A supplemental trial information was filed charging Yerhart with
attempted murder in count one, going armed with intent in count two, and
harassment in the first degree in count three. A jury trial was held from October
22 to 25, 2013, and Yerhart was convicted of all three counts. On December 9,
2013, he was sentenced accordingly.
Yerhart and his victim, Michael Rupp, were rivals for the attention and
affection of twenty-four year old Amanda Steele. Steele and Rupp had been
engaged for two years, but broke up some time in 2011. Yerhart and Steele
began a relationship around Christmas of 2012 and began living together after
Valentine’s Day of 2013. Steele became pregnant by Yerhart soon thereafter.
The relationship between Yerhart and Steele deteriorated, and she moved out of
Yerhart’s house, and Rupp and Steele renewed their relationship.
Steele and Yerhart retained a relationship even after she moved out.
Yerhart thought they were trying to get back together, but Steele stated her only
interest was the future of the child. She testified she had not been interested in
reunification, but her actions did not make that clear to Yerhart. Yerhart was
angry with Rupp and sometime after July 8 told Steele he was going to find Rupp
and shoot him. Yerhart told Steele to stay away from Rupp.
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In the early evening of August 10, 2013, Rupp had been fishing in the Des
Moines River and was returning to the Red Wing access when he observed
Yerhart assisting another boat’s occupants at the access. Yerhart began yelling
at Rupp, “Stay away from her,” “I’ll kill you,” and “I could have got you before.”
Yerhart challenged Rupp to come in off the water and finish it. Witnesses at the
ramp also heard Yerhart threaten Rupp and heard him say Rupp was “a dead
man” and that “he’d get a chance one of these days.” Rupp called 911 for
assistance so he could land his boat without a confrontation, but by the time
police arrived Yerhart was gone.
Yerhart had left the Red Wing access in a truck with two other men. On
the way home they stopped and talked to Yerhart’s neighbor, Joe Cass. Yerhart
told Cass that the fight was on and he was going to “kick someone’s ass.” When
Cass asked who, Yerhart responded “down at Red Wing I seen Mike.” Ten or
fifteen minutes later Yerhart came back and pulled up on his four wheeler. Cass
noted that Yerhart had a gun. Cass cautioned Yerhart not to get in trouble.
Rupp had docked his boat and started toward his home in his truck when
he saw Yerhart coming toward him on his four wheeler. Yerhart turned around
and pulled up alongside Rupp’s truck and yelled at him that they needed to talk.
Rupp continued toward his home, but in his rearview mirror he saw the four
wheeler stop. He heard Yerhart curse him, saw a flash, and heard a bang. The
back window of Rupp’s truck was shattered. He sped towards home and soon
felt the blood running down the back of his neck and shoulders. Steele arrived at
Rupp’s home soon after Rupp. A 911 call was being made when she arrived.
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Law enforcement responded to the 911 call and observed Rupp being
loaded in an ambulance. An officer observed Rupp’s wound. There was a bullet
hole in the back window of Rupp’s pickup and the headrest on both the front and
back driver’s-side seat. A bullet fragment was found on the right driver’s-side
floor. Rupp underwent surgery to remove a bullet fragment and was hospitalized
for three days.
Yerhart testified substantially as set out, insisted he only wanted to talk to
Rupp, and denied that he intended to kill or injure him. He denied shooting at
anything specific besides the truck. Yerhart testified, “I pulled out my pistol and
told him to stop one more time, and he didn’t. And I—I shot the truck. Just
pointed it and pulled the trigger.” Yerhart testified he was familiar with guns and
had practiced shooting at targets. He further testified he had used the same .357
pistol that he used to shoot at the pickup to hunt deer.
Yerhart claims ineffective assistance of counsel because of his counsel’s
failure to make an objection to what he contends was inadmissible opinion
evidence, inadmissible bad acts, and prosecutorial misconduct.
II. Standard and Scope of Review
Claims of ineffective assistance of counsel raise constitutional issues and
are therefore reviewed de novo. State v. Brubaker, 805 N.W.2d 164, 171 (Iowa
2011). Such claims are reserved for postconviction-relief proceedings when
challenged actions implicate trial tactics or strategy. State v. Rubino, 602
N.W.2d 558, 563 (Iowa 1999). But such claims will be resolved on direct appeal
if the record is adequate. Id.
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III. Error Preservation
Ineffective-assistance-of-counsel claims are an exception to the general
rule of error preservation. State v. Lucas, 323 N.W.2d 228, 232 (Iowa 1982).
Such claims need not be raised before the trial court. Id.
IV. Discussion
A. Counsel’s Failure to Object to Inadmissible Opinion Evidence
Yerhart’s counsel’s efforts were directed towards establishing that
attempted murder and going armed with intent were overcharges. Further record
is not required to ascertain defense counsel’s strategy, as it was set out in both
his opening and closing statement. Yerhart’s counsel’s strategy was to attack
the specific intent element of the charges filed. On cross-examination, Yerhart’s
counsel brought out that the arresting officer, Deputy Stacy Weber, told Yerhart
he was going to charge him with willful injury. In redirect, the officer stated he
had in fact charged attempted murder, going armed with intent, and harassment
in the first degree. On re-cross the following exchange took place between
defense counsel and Weber:
Q. Is it a fair statement that you thought attempted murder
was the appropriate charge because of the severity of the injuries
to Mr. Rupp? A. Yes, sir.
Q. Not because of any action of Mr. Yerhart that you had
learned at a later date? A. Well, when you shoot someone
anywhere remotely close to their head, that’s attempted murder to
me.
Q. But you knew that before you interviewed Mr. Yerhart,
didn’t you? A. I—I knew that he was shot in the neck, but I didn’t—
I didn’t know how severe the wound was—
Q. Yeah. A. –or the location.
Then in final argument counsel used this exchange to attack the specific
intent element of the two charges. He stated,
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And the other important thing is what did Mr. Weber tell you
about this? He said that, originally he—he was going to charge
Andrew with Willful Injury and then when he sees, basically, the
severity of the wounds, that’s when it becomes Attempted Murder,
not because of, you know, anything in there about specific intent of
Andrew, not because of Andrew’s actions. And Stacy was
specifically asked by me: Was it because of Andrew’s actions that
was changed? No, it wasn’t, it was because of the severity of the
wounds.
Counsel’s efforts to convince the jury of a lesser charge were not effective,
but a failed strategy or tactic does not constitute ineffective assistance of
counsel. See State v. Aldape, 307 N.W.2d 32, 42 (Iowa 1981). Furthermore,
Weber was being questioned as to the reason he selected a particular charge,
and not his opinion as to Yerhart’s guilt. The charge he wrote represented his
conclusion based on his investigation of the incident. Furthermore, his
conclusions and the facts upon which his conclusions were based were already
in evidence. Evidence admitted which is cumulative of admissible evidence in
the record is not prejudicial. State v. Schaer, 757 N.W.2d 630, 638 (Iowa 2008).
B. Counsel’s Failure to Object to Inadmissible Bad Acts Evidence
Deputy Weber testified that he had been made aware that Yerhart had
made threats through family members and there might be a shootout if officers
tried to arrest him. The statement was made in his answer to a question relating
the circumstances of Yerhart’s being taken into custody. “Evidence of other
crimes, wrongs, or acts is not admissible to prove the character of a person in
order to show that the person acted in conformity therewith.” Iowa R. Evid.
5.404(b). Yerhart was arrested the same night of the shooting. The arrest was a
part of the occurrence and was admissible to show the complete story of the
crime. See State v. Walters, 426 N.W.2d 136, 140-141 (Iowa 1988).
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C. Counsel Was Ineffective for Failing to Object to the Prosecutor’s
Misconduct in Attacking Yerhart’s Credibility
1. Prosecutor’s Misconduct in Examining Yerhart.
In cross-examination the following exchange took place between Yerhart
and the prosecutor in discussing the shooting:
Q. That’s a coincidence? A. Yes.
Q. Because you weren’t aiming at the driver’s side? A. I
didn’t aim at all.
Q: And it’s just a coincidence that that thing went right
through the head rest on the driver’s side and into Mike Rupp’s
neck? A. Yes, a horrible coincidence, yes.
Q. Well it’s either a horrible coincidence or you’re not telling
the truth. A. No, I’m telling the truth.
Yerhart’s intent, an element in two of the charges levied, was again the
focal point of the exchange between Yerhart and the prosecutor. In cross-
examination the prosecutor simply pointed out the obvious. If Yerhart was not
aiming his gun at the occupants of the moving pickup as Yerhart maintains, the
fact that a bullet penetrated the pickup and struck Rupp must have been a
coincidence. The logical conclusion was that it was either a terrible coincidence
or Yerhart was not telling the truth. “A defendant in a criminal case who takes
the stand submits himself to cross-examination the same as any other witness.”
State v. Bauer, 324 N.W.2d 320, 323 (Iowa 1982); see also Iowa R. Crim. P.
2.20(1). In some circumstances repeated cross-examination questions
challenging the veracity of the defendant might add up to a finding of prejudice
and raise an issue as to the fairness of the trial, but the single question on which
Yerhart relies does not constitute prosecutorial misconduct. See State v. Carey,
709 N.W.2d 547, 556 (Iowa 2006).
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2. Counsel’s Misconduct In Argument
In final arguments the prosecutor made the following comments on
Yerhart’s rendition of his activities and intent when he went home after the
confrontation at the Red Wing access and before the shooting.
He gets dressed and he grabs a belt that he’s said oh, just by
coincidence, my gun—I keep a gun on that belt.
Well now, ladies and gentlemen, if you believe that, you will
certainly believe me when I tell you I have a pet alligator at home
that plays the bass guitar. That’s not a true statement by the
defendant, folks. Use your common sense, reason. He goes home
to get his gun and is going to go back and he’s going to shoot
Michael Rupp.
Shortly thereafter, in final argument the prosecutor again commented on
Yerhart’s truthfulness as to his true intentions,
So how does his gun play into this? Well, he said he had heard
that Michael Rupp carried a .45. Well, any other evidence in the
record suggest that, folks? But the defendant’s got to have some
explanation for you as to why he’s bringing his gun to this kicking-
ass party, right?
That wasn’t true, either, because from the time he left Red
Wing Access till the time he caught up again with Michael Rupp, his
specific purpose was to shoot him to kill him.
The court must consider three factors in determining whether the
prosecutor’s statements constitute misconduct.
(1) Could one legitimately infer from the evidence that the
defendant lied? (2) Were the prosecutor’s statements that the
defendant lied conveyed to the jury as a prosecutor’s personal
opinion of the defendant’s credibility, or was such other
argument related to specific evidence that tended to show the
defendant had been untruthful? and (3) Was the argument
made in a professional manner, or did it unfairly disparage the
defendant and tend to cause the jury to decide the case based
on emotion rather than upon a dispassionate review of the
evidence?
State v. Graves, 668 N.W.2d 860, 874-75 (Iowa 2003).
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The issue the prosecutor was addressing was Yerhart’s acquisition of his
gun and the short time spent between the Red Wing access incident and the
actual shooting. Yerhart had claimed all he wanted to do was fight Rupp and it
was just a coincidence that the belt he retrieved had a gun attached. As to the
first factor, a juror could easily infer from the evidence that Yerhart’s assertion
that his acquisition of the gun was a coincidence was not a true statement. The
ultimate issue was Yerhart’s intent, and intent can seldom be stablished by direct
proof. See State v. Schminkey, 597 N.W.2d 785, 789 (Iowa 1999). The
prosecutor’s statement was related to circumstantial evidence that tended to
show Yerhart had been untruthful. Yerhart had stated at the Red Wing access
immediately prior to the shooting that he was going to kill Rupp and that Rupp
was a dead man. As to the second factor, the prosecutor predicated Yerhart’s
intent on his own words and threats and the retrieval of the revolver. The
prosecutor was expressing a conclusion based on the facts as they existed and
not a baseless opinion of his own. When attempting to determine intent, words
do have meaning. Particularly when they express a threat and are followed by
the act threatened. As to the third factor, the prosecution went beyond the record
in referring to his guitar-playing alligator. The comment, although trivial and
hardly professional, is not such that it would have an impact on the jury’s
dispassionate view of the evidence. The prosecutor’s statements were based on
reasonable inferences from the record and were not a baseless expression of his
personal belief. The prosecutor’s argument reflects his attempt to tarnish
Yerhart’s credibility by reference to other facts and testimony of the case, which
is a part of the prosecutor’s duty. See Carey, 709 N.W.2d at 556.
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V. Conclusion
To prevail on a claim of ineffective assistance of counsel, a defendant
must prove (1) counsel failed to perform an essential duty and (2) prejudice
resulted. State v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008). Counsel’s
performance is measured objectively by determining what is reasonable on
prevailing professional norms and the existing circumstances. State v. Lyman,
776 N.W.2d 865, 878 (Iowa 2010). Counsel has no obligation to raise a
meritless claim or make a meritless objection. State v. Brothern, 832 N.W.2d
187, 192 (Iowa 2013). Yerhart is correct when he maintains that the cumulative
effect of errors can satisfy the prejudicial prong of the claim of ineffective
assistance of counsel. See State v. Clay, 824 N.W.2d 488, 500 (Iowa 2012).
Nevertheless, we have not found that Yerhart’s counsel has failed to perform an
essential duty, nor do we find that he has suffered any prejudice even if counsel
had failed to perform such a duty. The evidence of Yerhart’s guilt was
substantial, if not overwhelming.
AFFIRMED.