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).
3
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.
4
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
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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
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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
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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”).