Preview:

IN THE COURT OF APPEALS OF IOWA No. 0-675 / 10-0079 Filed December 8, 2010 STATE OF IOWA, Plaintiff-Appellee, vs. MICHAEL DONTE MOSS, Defendant-Appellant. ________________________________________________________________ Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg, Judge.

Michael Donte Moss appeals from the judgment and sentence entered following his conviction of murder in the first degree. AFFIRMED.

Mark C. Smith, State Appellate Defender, and Theresa Wilson, Assistant State Appellate Defender, for appellant. Thomas J. Miller, Attorney General, Thomas Tauber, Assistant Attorney General, John P. Sarcone, County Attorney, and Steven Foritano and Justin Allen, Assistant County Attorneys, for appellee.

Considered by Eisenhauer, P.J., and Potterfield and Doyle, JJ. Tabor, J., takes no part.

2

EISENHAUER, P.J. Michael Donte Moss appeals from the judgment and sentence entered following his conviction of murder in the first degree. The State submitted three theories by which the jury could find Moss guilty of first-degree murder: felony murder by kidnapping, felony murder by robbery, and premeditated murder. The jury returned a general verdict finding Moss guilty. Moss contends his conviction must be vacated and the case remanded for new trial because there is insufficient evidence to support conviction on either theory of felony murder. Because we conclude sufficient evidence supports Moss's conviction under each theory charged, we affirm. I. Background Facts and Proceedings. The following facts are not in dispute: On July 21, 2008, Moss and his friend, Nick Harris, went to Oakridge apartments in search of Andrew Hughes, who allegedly owed Moss $200. The men located Hughes in an apartment known for drug activity. He appeared

nervous to see Moss and stated he did not have the $200 he owed Moss on his person, but suggested they go to his bank to get the money. The three men went to the parking lot of the apartment complex where Hughes gave Moss the keys to his SUV after Moss stated, "I'm driving." The vehicle would not start with the key in the ignition, so Hughes had to hotwire the vehicle. Harris overheard Moss tell Hughes he had a gun. Moss also told

Hughes if he did not have the money, he was going to beat Hughes up. Harris observed Hughes to be acting scared and nervous.

3

The men drove to First National Bank in Ankeny with Moss driving the vehicle, Harris sitting directly behind Moss in the backseat, and Hughes sitting in the passenger side of the front seat across from Moss. They pulled into the drive-through lane and Moss sent Hughes's driver's license to the tel ler and asked her for the balance on Hughes's account. After Hughes nodded his

assent, the teller informed Moss the balance was $4.50. Harris saw Moss give Hughes a furious look, although he said nothing. Appearing frightened, Hughes attempted to exit the vehicle and flee, but he got caught in the seatbelt. With the passenger-side door partially open and Hughes entangled in the seatbelt, Moss began to speed away. Harris was shouting at Moss, "Let him out," but Moss continued driving at a high rate of s peed. Harris could not see Hughes's location and asked Moss what happened to him, to which Moss replied, "I think he went under the car." During this time, Moss was repeatedly glancing at the side mirror located on the passenger side of the vehicle. After a drive of approximately 1167 feet, Moss swerved the vehicle to the right and drove up over the curb. Hughes was dislodged from the seatbelt and left lying near the curb as Moss sped away. Although Hughes was still breathing and had a strong heart rate, his injuries were severe. He was declared brain dead two days later. Moss drove the vehicle back to Des Moines where he abandoned it on Pennsylvania Avenue. He and Harris went their separate ways. Harris later went to the police and reported what had occurred.

4

Moss was arrested and on September 25, 2008, the State charged him with first-degree murder. Moss pled not guilty and waived his right to a speedy trial. His trial began on November 2, 2009. At the close of the State's evidence, he made a motion for judgment of acquittal, which the trial court denied. The case was submitted to the jury. The jury instructions allowed it to convict Moss if they found him guilty of premeditated murder or felony murder with robbery or kidnapping as the underlying felonies. The jury returned a

general verdict, which did not state which theory they adopted. Moss filed motions for new trial and in arrest of judgment. After denying the motions, the court entered judgment against Moss and sentenced him to life imprisonment. Moss filed a timely appeal. II. Scope and Standard of Review. We review a challenge to rulings on the sufficiency of the evidence for correction of errors at law. State v. Hagedorn, 679 N.W.2d 666, 668 (Iowa 2004). If there is substantial evidence to support the verdict, we will uphold a finding of guilt. Id. Evidence is substantial if a rational trier of fact could find the defendant guilty beyond a reasonable doubt. Id. at 668-69. In reviewing the sufficiency of the evidence, we consider all evidence, not just the evidence that supports the verdict. evidence in the light most favorable to the State. To the extent Moss alleges his trial counsel was ineffective, our review is de novo. State v. McBride, 625 N.W.2d 372, 373 (Iowa Ct. App. 2001). III. Analysis. Moss claims there was insufficient evidence to support his conviction under either of the felony-murder theories. He does not dispute there Id. at 669. We weigh that

5

is sufficient evidence to support his conviction of premeditated murder. However, because a general verdict of guilty was returned, we are unable to determine which of the State's theories of murder the jury accepted. Therefore, reversal is required unless we determine the evidence was sufficient to convict Moss under both the theories of felony murder by robbery and felony murder by kidnapping. See State v. Williams, 674 N.W.2d 69, 71 (Iowa 2004). For a felony-murder conviction, the State must prove defendant was participating in the underlying felony. Conner v. State, 362 N.W.2d 449, 455 (Iowa 1983). Our analysis focuses on whether there is substantial evidence

Moss committed the offenses of robbery and kidnapping. A. Felony Murder by Robbery. Moss first contends there is insufficient evidence to support a conviction of felony murder by robbery because the State failed to prove he took property belonging to Hughes with the intent to permanently deprive him. He also contends there is insufficient evidence to

show he did so while committing an assault, threatening or placing Hughes in fear of immediate serious injury, or threatening to commit a forcible felony. A person commits robbery when they have the intent to commit a theft, and in furtherance of that theft, they do any of the following acts: 1. Commits an assault upon another. 2. Threatens another with or purposely puts another in fear of immediate serious injury. 3. Threatens to commit immediately any forcible felony. Iowa Code

Download STATE OF IOWA, Plaintiff-Appellee, vs. MICHAEL DONTE MOSS, Defendant-Appellant..

Iowa Law