Opinion
No. 4-759 / 03-1887
Filed December 22, 2004
Appeal from the Iowa District Court for Scott County, James E. Kelley, Judge.
Tatiana Michelle Dixon appeals her convictions, following bench trial, for felony murder, willful injury causing serious injury, and willful injury causing bodily injury. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and James G. Tomka, Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, William E. Davis, County Attorney, and Robert L. Cusack, Assistant County Attorney, for appellee.
Considered by Vogel, P.J., and Miller and Eisenhauer, JJ.
Tatiana Michelle Dixon appeals her convictions, following bench trial, for felony murder, willful injury causing serious injury, and willful injury causing bodily injury. She contends the district court erred in failing to grant her motion for judgment of acquittal because the State failed to meet its burden to prove she acted without justification. She also claims her trial counsel was ineffective. We affirm.
The record reveals the following facts. Lashawnda Rush was living in apartment 3A, a first-floor apartment, in the Schricker apartment building in Davenport. Dixon was staying on the second floor of the same building in apartment 10. On the morning of January 10, 2003, Rush and Dixon got into an argument. Dixon believed she was pregnant by Cyrus Compton with whom she had been living for the few previous months. Dixon and Compton apparently separated after she told him she was pregnant. After the separation, Compton spent the nights with Rush in her apartment. Prior to the argument of January 10 Rush and Dixon were friendly toward one another.
The argument the morning of January 10 occurred in Rush's apartment in the presence of Compton and Adam Epps. During the argument Rush picked up a knife and threatened Dixon with it. In response, Dixon produced a gun and threatened to kill Rush. Compton intervened and prevented a physical altercation between the women or any use of the weapons at that time.
Later that same night, between approximately 11:00 and 11:30 p.m., Rush and Dixon got into another argument on or near the stairs close to the front door of their apartment building. During the argument Dixon spit on Rush. At the end of the disagreement, Rush turned and started walking south down the hallway toward her apartment. Dixon testified that she believed Rush was going to get Compton's gun from her apartment because she had stated to Dixon that she was "going to fuck you up" and told her to "[s]tay right here, I got something for you" before she headed toward the apartment. As Rush was heading toward her apartment Dixon quickly went back up the stairs to apartment 10, retrieved a cut-off .22 caliber automatic rifle, and headed back down the stairs. Dixon came down only three or four stairs, leaned over the stairway railing, and fired between four and eight shots at Rush.
The police and emergency medical personnel arrived within minutes after the shooting occurred. Upon arrival emergency personnel determined Rush had no carotid pulse. She was pronounced dead on arrival at the hospital. An autopsy revealed that Rush had been shot four times, but only the bullet which entered her back and perforated her thoracic aorta was fatal. One of the shots from Dixon also apparently ricocheted off of something and struck Wanda Tolbert, who was not involved in the argument but was in the hallway near Rush during the shooting. Tolbert sustained a non-fatal bullet wound to her buttocks.
After firing the shots, Dixon left the apartment building with the gun and gave it to Darryl Davis. Dixon asked Davis to get rid of the gun, and he threw it in the Mississippi River.
The State charged Dixon by trial information with first degree murder, in violation of Iowa Code section 707.2 (2003) (Count 1); attempt to commit murder, in violation of Code section 707.11 (Count 2); willful injury causing serious bodily injury, in violation of section 708.4(1) (Count 3); and willful injury causing bodily injury, in violation of section 708.4(2) (Count 4). Counts 1 and 3 dealt with the shooting death of Rush, and Counts 2 and 4 dealt with the shooting of Tolbert. A pretrial conference order indicates Dixon had given notice of relying upon the defense of self-defense. Dixon waived her right to jury trial. During the trial to the court Dixon raised the justification defense of self-defense under sections 704.1 and 704.3. Both parties agreed on the record that Dixon had given sufficient notice of that defense.
At the end of the State's evidence Dixon moved for a judgment of acquittal on Counts 2 and 4 and the court reserved ruling on this motion until the close of all the evidence. The trial court filed its written findings of fact and verdict on October 22, 2003. The court found Dixon guilty as charged on all counts except Count 2, where it found her guilty of the lesser included offense of assault in violation of sections 708.1 and 708.2(5). The court found that no reasonable person could believe that Rush, either by her actions or words, had threatened to use deadly force, or any force causing injury, immediately against Dixon; that Rush's threats against Dixon earlier in the day "were not to use a like force against [Dixon] that [Dixon] used against Lashawnda Rush"; and that Dixon "had no reasonable cause to believe that she was in imminent danger of death or injury." The trial court also found the State had proven that an alternative course of action was available to Dixon. Accordingly, the court concluded that Dixon was not justified in her actions under sections 704.1 and 704.3. Based on its findings and conclusions the court also denied Dixon's motion for judgment of acquittal.
On November 13, 2003 the court sentenced Dixon to life imprisonment on Count 1 (felony murder) and to a period not to exceed five years on Count 4 (willful injury causing bodily injury.) The court ruled that the offense in Count 2 merged with Count 4 and the offense in Count 3 merged with Count 1. It ordered the sentences to run concurrently.
Dixon appeals her convictions, contending the court erred in denying her motion for judgment of acquittal because the State failed to meet its burden to prove she had not acted in self-defense. She also claims her counsel breached an essential duty by not arguing that willful injury could not be used as the qualifying underlying felony for felony murder. Finally, Dixon argues that if the self-defense issue was not properly preserved in her motion for judgment of acquittal then her counsel was ineffective for failing to do so.
Our scope of review on a claim of insufficient evidence is on assigned error. State v. Dible, 538 N.W.2d 267, 270 (Iowa 1995). It is the same on a defendant's appeal from a criminal conviction whether the court or a jury is the fact finder. State v. LaPointe, 418 N.W.2d 49, 51 (Iowa 1988). A trial court's finding of guilt is binding on appeal if supported by substantial evidence. Iowa R. App. P. 6.14(6)( a); State v. Thomas, 561 N.W.2d 37, 39 (Iowa 1997). If a rational trier of fact could conceivably find the defendant guilty beyond a reasonable doubt, the evidence is substantial. Thomas, 561 N.W.2d at 39.
In a criminal case tried to the court, as in a civil case tried to the court at law, the court's verdict is like a jury verdict. Upon review of the sufficiency of evidence to support the verdict, we view the evidence in the light most favorable to the verdict, and we accept as established all reasonable inferences tending to support it. Findings of the trial court are to be broadly and liberally construed, rather than narrowly or technically, and, in case of ambiguity, we will construe findings to uphold, rather than defeat, the judgment. Direct and circumstantial evidence are equally probative so long as the evidence raises a fair inference of guilt and [does] more than create speculation, suspicion, or conjecture. It is necessary to consider all the evidence in the record and not just the evidence supporting the verdict to determine whether there is substantial evidence to support the charge. Substantial evidence means evidence which would convince a rational factfinder that the defendant is guilty beyond a reasonable doubt.
Dible, 538 N.W.2d at 270 (internal quotations and citations omitted). When there is an alleged denial of constitutional rights, such as an allegation of ineffective assistance of counsel, we evaluate the totality of the circumstances in a de novo review. Osborn v. State, 573 N.W.2d 917, 920 (Iowa 1998).
When a criminal case is tried to the court a defendant may challenge the sufficiency of the evidence on appeal irrespective of whether a motion for judgment of acquittal was previously made. State v. Abbas, 561 N.W.2d 72, 74 (Iowa 1997). Thus, it is irrelevant for purposes of error preservation whether Dixon's motion for judgment of acquittal included the issue raised now on appeal, whether the State proved Dixon was not acting in self-defense. Accordingly, we conclude Dixon's trial counsel could not have been ineffective for failing to preserve for appeal the issue of sufficiency of the evidence on Dixon's defense, whether he raised that issue in the motion for judgment of acquittal or not, because no such motion was necessary for purposes of error preservation.
In relevant part Iowa Code section 704.3 provides, "A person is justified in the use of reasonable force when the person reasonably believes that such force is necessary to defend oneself . . . from any imminent use of unlawful force." When the defense of justification is asserted, the burden rests upon the State to prove beyond a reasonable doubt that the alleged justification did not exist. State v. Rubino, 602 N.W.2d 558, 565 (Iowa 1999); State v. Thornton, 498 N.W.2d 670, 673 (Iowa 1993). For the State to prove beyond a reasonable doubt that Dixon was not justified in shooting Rush, the State had to prove any one of the following:
1. Dixon started or continued the incident which resulted in death; or
2. An alternative course of action was available to Dixon; or
3. Dixon did not believe she was in immediate danger of death or injury and the use of force was not necessary to save herself; or
4. Dixon did not have reasonable grounds for the belief; or
5. The force used by Dixon was unreasonable.
See Thornton, 498 N.W.2d at 673 (citing State v. Mayes, 286 N.W.2d 387, 392-93 (Iowa 1979)).
Based on the facts in the record before us, we conclude substantial evidence supports the district court's finding that Dixon did not act in self-defense. We also agree with the court that there is serious doubt whether there was ever any imminent use of unlawful force by Rush against Dixon. However, assuming there was imminent use of such force, substantial evidence supports the district court's finding that Dixon had no reasonable cause to believe she was in immediate danger of death or injury. Rush was unarmed and the court could reasonably find that nothing she said or did would make a reasonable person believe they were in immediate danger of death or injury.
Based on our conclusion that substantial evidence supports the district court's finding the State proved Dixon lacked reasonable grounds to believe she was in immediate danger, we need not address or decide whether substantial evidence supports the district court's findings that the State also proved other, additional grounds negating self-defense.
Finally, Dixon claims her trial counsel was ineffective for not arguing that the court should reconsider its position on the use of willful injury as a qualifying underlying felony for felony murder. The standards required for a defendant to prevail on a claim of ineffective assistance of counsel are well established and need not be repeated here. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); Ledezma v. State, 626 N.W.2d 134, 141-44 (Iowa 2001).
The use of willful injury as the underlying felony for felony murder under section 702.2(2) has been reviewed and approved numerous times by our supreme court, most recently in State v. Rhomberg, 516 N.W.2d 803, 804-85 (Iowa 1994). See also State v. Ragland, 420 N.W.2d 791, 793 (Iowa 1988); State v. Mayberry, 411 N.W.2d 677, 682-83 (Iowa 1987); State v. Beeman, 315 N.W.2d 770, 776-77 (Iowa 1982). Our supreme court has determined "the inclusion of felonious assault in sections 707.2(2) and 702.11 indicated a legislative intent that a willful injury may serve as a basis for a felony murder and that the merger doctrine does not apply to such an assault." Rhomberg, 516 N.W.2d at 805 (citing Beeman, 315 N.W.2d at 776-77). In Rhomberg the court reexamined yet again the argument proposed here by Dixon and confirmed its prior analyses, finding: "A proposed change in the law, if desired, is in the province of the legislature." Id.
Dixon offers nothing to demonstrate any recent trends in our state's appellate opinions that would have signaled to her counsel that he needed to raise this issue before the trial court. Counsel could not have been expected to believe our supreme court would change its position on this issue, considering the firm stance it repeatedly has taken in previous cases. We conclude trial counsel had no duty to raise this issue before the trial court and thus was not ineffective for not doing so. Dixon's ineffective assistance of counsel claim is without merit.
For the reasons set forth above, we conclude the trial court did not err in finding the State met its burden to prove Dixon acted without justification and in denying her motion for judgment of acquittal. Dixon's trial counsel had no duty to challenge the use of willful injury as the underlying felony for felony murder, and thus did not provide ineffective assistance by not doing so. Dixon's convictions are affirmed.