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IN THE COURT OF APPEALS OF IOWA No. 0-206 / 09-0524 Filed June 16, 2010 STATE OF IOWA, Plaintiff-Appellee, vs. OLIVER LITT, JR., Defendant-Appellant. ________________________________________________________________ Appeal from the Iowa District Court for Scott County, Marlita A. Greve, Judge.

Appeal from the judgment entered following a jury verdict of guilty of firstdegree murder. AFFIRMED.

Mark C. Smith, State Appellate Defender, and Dennis D. Hendrickson, Assistant State Appellate Defender, for appellant. Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney General, Michael J. Walton, County Attorney, and Dion Trowers, Assistant County Attorney, for appellee.

Heard by Sackett, C.J., and Eisenhauer and Mansfield, JJ. Tabor, J., takes no part.

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SACKETT, C.J. Appellant, Oliver Litt, appeals from the judgment entered after a jury found him guilty of first-degree murder. He contends there was insufficient evidence to support the conviction, the court erred in allowing testimony concerning rumors, the court erred in denying his motion for mistrial based on prosecutorial misconduct, and he received ineffective assistance of counsel when his trial counsel did not object to reference to rumors in an exhibit and failed to preserve a claim. We affirm. I. Background Facts and Proceedings. The victim, Hano Bailey, was shot five times as he arrived for work at an IHOP restaurant. He was alive when police arrived, but died hours later in the hospital. At the time of the shooting, Britton Whitcher, a customer in the

restaurant, was sitting facing a window and heard two "popping" sounds. He stood to look out the window and saw a man standing over Bailey with a gun. Whitcher heard two more popping sounds and saw two flashes from the gun. He went to the door of the restaurant and watched the assailant get into the passenger side of a car. He saw the assailants face briefly before the car drove away. There was a second person in the car but Whitcher did not get a good look at the persons face. Whitcher described the assailant as a tall AfricanAmerican man who was bigger "through the midsection." Whitcher described the car as a darker blue, two-door or possibly four-door 1992 to 1999 model rounded in the back and top, consistent with a Buick Regal, Bonneville, or Riviera.

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Kourtney Davis, a server at the restaurant, told police she saw a "bubbly dark purple, bluish car" with an "R" on the front grille earlier in the evening of the shooting. She said the car moved around the parking lot, parking in at least two different spots. She left the restaurant between 10:00 and 10:30 p.m., Davis and saw two black men in the car. The passenger was a "heavier set" man. Davis believed, although she was not 100 percent sure, that defendant was the passenger. Mary Struck, the assistant manager at IHOP, saw a two-door Buick Riviera with a "bubbly" body style and an "R" on the front grille. Dustin Murphy, a customer in the restaurant, saw the assailant leave in a two-door, dark-colored 1998 or 1999 model Riviera with some custom vents in the front quarter panel. Officer Robert Bytnar of the Davenport Police Department, driving in Davenport at about 5:00 p.m. the day before the shooting, saw Litt driving a blue Riviera with custom vents. The morning after the shooting, a car matching the description given by the witnesses was located at American General Finance. The vehicle had been collateral for a loan made to Michellien Lagrone. Lagrone lived with defendant. She had been delinquent on the loan for months but was told that American wanted her to make payments, not return the car. Yet

Lagrone and defendant returned the car at the start of business on May 23, 2008, hours after Baileys murder. When interviewed by law enforcement officers, defendant gave

contradictory accounts of his actions the evening of the shooting. He first said he had not driven Lagrones Riviera for two months, but later admitted driving the car the evening of the shooting, but not in the area where it occurred. Later he

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said he drove the car and met a man not far from the place where the shooting occurred. At trial, Whitcher, Officer Bytnar, Davis, Struck, and Murphy identified the car as the one they saw the night of the shooting. Litts fingerprint was found in the car. Whitcher identified Litt as the assailant, estimating his degree of

certainty as eighty to eighty-five percent. Davis identified Litt, but was not 100 percent sure. II. Scope and Standards of Review. We review challenges to the sufficiency of the evidence for correction of errors at law. State v. Hansen, 750 N.W.2d 111, 112 (Iowa 2008). A guilty verdict is binding on us on appeal unless no substantial evidence in the record supports it or the verdict is clearly against the weight of the evidence. State v. Reynolds, 765 N.W.2d 283, 288 (Iowa 2009). Substantial evidence means

evidence that could convince a rational jury that the defendant is guilty beyond a reasonable doubt. Id. We view the evidence in the light most favorable to the State, including legitimate inferences and presumptions that may fairly and reasonable be deduced from the record. State v. Leckington, 713 N.W.2d 208, 213 (Iowa 2006). We consider all the evidence presented, not just that of an inculpatory nature. State v. Lambert, 612 N.W.2d 810, 813 (Iowa 2000). We review a trial courts evidentiary rulings for an abuse of discretion. State v. Castaneda, 621 N.W.2d 435, 440 (Iowa 2001). "An abuse of discretion occurs when the trial court exercises its discretion on grounds or for reasons

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clearly untenable or to an extent clearly unreasonable. " State v. Rodriquez, 636 N.W.2d 234, 239 (Iowa 2001) (citation omitted). Claims counsel rendered ineffective assistance have their basis in the Sixth Amendment to the United States Constitution; we review these claims de novo. State v. Lyman, 776 N.W.2d 865, 877 (Iowa 2010). "To establish a claim of ineffective assistance of counsel, a defendant must prove by a preponderance of the evidence (1) counsel failed to perform an essential duty and (2) prejudice resulted." State v. Kingery, 774 N.W.2d 309, 312 (Iowa Ct. App. 2009). Failure to prove either element is fatal to the claim. State v. Polly, 657 N.W.2d 462, 465 (Iowa 2003). Normally, ineffective-assistance-of-counsel claims are preserved for postconviction-relief proceedings; however, if the record is sufficient to permit a ruling, we will consider such a claim. State v. Canal, 773 N.W.2d 528, 532 (Iowa 2009). III. Merits. A. Testimony Concerning Alleged Sexual Assault. There apparently had been rumors that the victim sexually assaulted Litts daughter. Litt contends the district court erred in allowing a police detective to testify he checked police records and found no record of a sexual assault or sexual abuse of Litts daughter. Defense counsel objected to the evidence on relevance grounds. The court overruled the objection. Here Litt contends the court erred in admitting the evidence as it was not relevant to any issue in the case because motive is not an element of murder. See Iowa R. Evid. 5.401; Iowa Crim. Jury Instruction 700.1 (2008). He argues "the alleged motive was completely without foundation in the

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record of this case."

He further contends it was unfairly prejudicial, even if

relevant. See Iowa R. Evid. 5.403. The State argues the testimony was "relevant to whether defendant had guilty knowledge concerning the murder, whether he had a motive for the murder, and whether he was trying to preempt the officers use of the rumor during his questioning." To determine whether evidence is admissible under Iowa Rules of Evidence 5.402 and 5.403 requires a two-step inquiry: first, is the evidence

relevant? Second, if it is relevant, is its probative value substantially outweighed by the danger of unfair prejudice or confusion? See State v. Thomas, 766

N.W.2d 263, 270 (Iowa Ct. App. 2009). "Relevant evidence" is "evidence having 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 Litt correctly notes that motive is not an element the State must prove for first-degree murder, evidence of motive may be relevant to proof of deliberation and premeditation, which are required elements. See State v.

Gordon, 354 N.W.2d 783, 784 (Iowa 1984) (using motive to show deliberation or premeditation); see also Iowa Code

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