IN THE COURT OF APPEALS OF IOWA
No. 19-1839 Filed June 16, 2021
STATE OF IOWA, Plaintiff-Appellee,
vs.
MONTRELL RYAN McCLELLAN, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Story County, James A. McGlynn,
Judge.
A defendant appeals his convictions of assault, robbery in the first degree,
and intimidation with a dangerous weapon. AFFIRMED.
John L. Dirks of Dirks Law Firm, Ames, for appellant.
Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant Attorney
General, for appellee.
Considered by Bower, C.J., Greer, J., and Blane, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2021). 2
BLANE, Senior Judge.
Montrell Ryan McClellan appeals his convictions for assault, in violation of
Iowa Code sections 708.1 and 708.2(6) (2019), a simple misdemeanor; robbery in
the first degree, in violation of Iowa Code sections 711.1 and 711.2, a class “B”
felony; and intimidation with a dangerous weapon, in violation of Iowa Code section
708.6, a class “C” felony. He argues the district court should have granted his
motion for judgment of acquittal as to all charges for lack of substantial identity
evidence and challenges the lack of evidence as to the elements substantiating a
robbery. He also contends the district court should have granted his motion to
dismiss based on denial of speedy trial, and his motion for mistrial for unfairly
prejudicial testimony and prosecutorial misconduct. We address each claim in turn
and affirm.
PROCEDURAL AND FACTUAL BACKGROUND.
From the evidence at trial, the jury could find the following facts. Chay Potts
and Aundrea Keeney were in a romantic relationship. In early March 2019, Potts
paid teenager B.M. $550 for marijuana. But B.M. ripped off Potts by giving him a
bag of socks and trash. Learning this, Keeney enlisted Justin Cox and McClellan
to find B.M. and get Potts’s money back. Keeney, Potts, Cox, and McClellan began
to search for B.M. Tagging along was Cox’s teenage brother, R.F. After
investigating B.M.’s location through text messages and social media and
searching for him at various locations in Story County, they believed B.M. was at
the apartment of his girlfriend’s aunt, Dawn Prewitt, in Huxley, Iowa.
In the early morning hours of March 6, they all went in one vehicle to the
Prewitt’s apartment complex. Keeney provided McClellan with a pistol she kept in 3
the vehicle. Cox had brought with him a broken BB gun. McClellan and Cox exited
the vehicle, armed and with their faces covered by bandanas, and approached
Prewitt’s apartment. McClellan knocked on the door and when Audrey Prewitt,
Dawn’s daughter, opened the door, McClellan asked if B.M. was there. As Audrey
replied “no” and began to close the door, McClellan drew the pistol from his
waistband and pointed it at her. Audrey closed and locked the door and squatted
behind it. McClellan then shot through the window three times. Bullet holes were
found in Prewitt’s apartment window, with bullets lodged in a living room couch,
ottoman, and wall.
McClellan and Cox then fled on foot and later met up with Keeney and the
others at a previously agreed-upon location. McClellan still had Keeney’s pistol
and told her he had fired the shots. Keeney and Cox, pursuant to a plea
agreement, testified for the State against McClellan. R.F. also testified at trial and
corroborated Keeney and Cox’s testimony. Shelby Bierly, an acquaintance of
McClellan, also testified that he had told her he had fired shots at the apartment.
Other facts will be set out below as related to the particular issues.
On April 22, 2019, the State filed a trial information charging McClellan in
Count I with attempt to commit murder, in violation of Iowa Code sections
707.11(1) and 707.11(2). Count II charged McClellan with robbery in the first
degree, in violation of Iowa Code sections 711.1 and 711.2. And Count III charged
McClellan with intimidation with a dangerous weapon, in violation of Iowa Code
section 708.6.
After several continuances, jury trial commenced on August 13, 2019. The
jury found McClellan guilty of the lesser offense of simple assault on Count I, in 4
violation of Iowa Code sections 708.1 and 708.2(6), and guilty as charged on
Counts II and III. McClellan appeals.
DISCUSSION.
1. Right of Appeal and Error Preservation of Substantial Evidence Claims.
Initially, we note the State argues that this court cannot consider McClellan’s
appeal of his assault conviction because Iowa law does not authorize as a matter
of right review of simple misdemeanor convictions by Iowa’s appellate courts. See
Iowa R. Crim. P. 2.73; Iowa Code § 814.6(1)(a)(1), (2)(d). A defendant who seeks
appellate review of a simple misdemeanor conviction may only obtain it by filing
an application for discretionary review. Iowa R. App. P. 6.106(2); Iowa R. Crim. P.
2.73(6); Iowa Code § 814.6(2)(d); see also State v. Frazer, 402 N.W.2d 446, 447
(Iowa 1987). No such application was filed. In addition, a notice of appeal from
conviction for a simple misdemeanor must be filed within ten days of judgment.
Iowa R. Crim. P. 2.73(1). In this case, judgment was entered on October 14, 2019,
and notice of appeal was not filed until November 5, 2019, after the ten-day period.
For these reasons, we do not consider McClellan’s appeal of his simple
misdemeanor assault conviction.
As to McClellan’s lack-of-substantial-evidence claim on the robbery and
intimidation-with-a-dangerous-weapon charges, the State contends the issues
were not preserved at trial and we should not address them. To preserve a
sufficiency-of-the-evidence challenge on appeal, it is not enough to make a motion
for judgment of acquittal. Defendants must identify in their motion the specific
deficiencies in the State’s evidence that would prevent the challenged count from 5
being submitted to the jury. See State v. Brubaker, 805 N.W.2d 164, 170 (Iowa
2011). In turn, the appellate challenge must allege the lower court erred in ruling
on the specific sufficiency challenge articulated in the motion for judgment of
acquittal. State v. Geier, 484 N.W.2d 167, 170-71 (Iowa 1992).
At trial, as to these two charges,1 McClellan’s motion for judgment of
acquittal stated:
With regard to the allegation of Count II, robbery in the first degree, the light—the evidence taken in a light most favorable to the State, as I recall it, is that this group of people were going to go find [B.M.] and that [B.M.] would be the focal point of trying to get back the $500 or $550. I’m not conceding the State’s proven that, but I believe in the light most favorable to the State, that is the—that is the version of the events the State has tried to put forth. [B.M.] was never located. Everybody who was asked said [B.M.] was the only one they were looking to get money from. [B.M.] wasn’t in the apartment, he wasn’t seen in the apartment, nobody had any evidence that [B.M.] was in the apartment. Under those circumstances, I think Count II must fail as well.
1 The jury was instructed in order to find McClellan guilty of first-degree robbery: 1. On or about March 6, 2019, [McClellan] had the specific intent to commit a theft. 2. To carry out that intention or to assist him in escaping from the scene, with or without the stolen property, [McClellan]: a. Committed an assault upon Audrey Prewitt, or b. Threatened Audrey Prewitt with or purposefully put her fear of immediate serious injury. 3. [McClellan] was armed with a dangerous weapon. For intimidation with a dangerous weapon, the instruction required to the jury to find: 1. [McClellan] shot or discharged a firearm at or into a building occupied by Audrey Prewitt. 2. Audrey Prewitt actually experienced fear of serious injury and her fear was reasonable under the existing circumstances. 3. [McClellan] shot or discharged the firearm with the specific intent to injure or cause fear or anger in Audrey Prewitt. When a defendant does not object to the instructions given to the jury at the time of trial, the instructions “become the law of the case for the purposes of our review of the record for sufficiency of the evidence.” State v. Canal, 773 N.W.2d 528, 530 (Iowa 2009). McClellan did not object to these instructions, so they are law of the case. 6
Count III, intimidation with a dangerous weapon, on that one, the evidence taken—the story that’s presented is that Mr. McClellan fired a weapon at a building, which people would—which he would have known was occupied if he were the one, in fact, doing the shooting because the door had been opened and immediately closed. But you have to prove that there was an intent to injure or provoke fear or anger in another person and that you’re firing within a—firing at another person or an assembly of people placing the occupants in reasonable apprehension of serious injury. First round hit the wall and stopped. The second two rounds went through a window, a window you could see through. And by everybody’s indications, there would have been nobody to be seen on the other side of that window. And under those circumstances, it seems to me that Count III, intimidation with a dangerous weapon, must also fail because even taken in the light most favorable to the State, there’s insufficient evidence that a reasonable jury could return a verdict of guilty on that count or any other.
As can be seen, at trial McClellan raised distinct arguments. As to the
robbery count, he alleged a robbery could not have occurred because there is no
evidence that the theft target—B.M.—was at Prewitt’s residence when the shots
were fired. As to the intimidation with a dangerous weapon count, McClellan
argued there is insufficient evidence he (1) possessed an intent to injure or provoke
fear or anger in another person and (2) that he was firing at another person or
assembly of persons placing them in reasonable apprehension of serious injury.
On appeal, McClellan now urges both verdicts are deficient because (1)
there is insufficient evidence establishing his identity as the shooter and (2) that
firing shots into the apartment did not further the intended theft or assist in escaping
from the scene. We agree the matters raised in the motion for judgment of acquittal
did not raise McClellan’s identity as the shooter or the purpose for the shooting as
issues for which there is insufficient evidence. Those issues on appeal were
neither presented nor ruled upon by the district court and were thus not preserved
for our review. See, e.g., State v. Cue, No. 10-1795, 2013 WL 5760572, at *3 7
(Iowa Ct. App. Oct. 23, 2013) (not addressing merits of sufficiency claim where
defendant’s sufficiency challenges on appeal were being raised for the first time
because they were different from those urged in the motion for judgment of
acquittal at trial). Because his identity claim was not preserved, we will not
consider it.
Turning to his final point on the robbery conviction, McClellan argues in
order to be guilty of robbery, the State was required to prove not only that he fired
the gun, but also that the assault was done in furtherance of the theft or to assist
in his escape. However, he postulates since B.M. was not present, there could be
no contemporaneous specific intent to commit a theft with an assault. The State
urges us to find this argument is not properly preserved. But we find the court did
hear this claim and ruled there is sufficient evidence of an intent to commit a theft
to submit the count to the jury. So we consider the challenge on the ground
preserved.
2. Whether there is sufficient evidence that McClellan committed the crime of robbery in the first degree.
McClellan argues that the State failed to prove the crime of robbery because
there is no evidence that B.M.—the intended theft victim—was present at the
location when the shots were fired.
We review a sufficiency-of-evidence claim for correction of errors at law. The court considers all the evidence presented at trial and views the evidence in the light most favorable to the state. The verdict is supported by substantial evidence when the evidence could convince a rational trier of fact the defendant is guilty beyond a reasonable doubt. 8
State v. Copenhaver, 844 N.W.2d 442, 449 (Iowa 2014) (citations omitted). The
State must prove every fact necessary to constitute the crime with which the
defendant is charged. State v. Gibbs, 239 N.W.2d 866, 867 (Iowa 1976).
In Count II, the jury returned a general verdict finding McClellan guilty of
robbery in the first degree. No interrogatories or additional questions required the
jury to identify on what ground or theory it found McClellan guilty. But the parties
agree proof that McClellan had the specific intent to commit a theft was required.
And McClellan concedes that an assault took place. But he argues the assault
was not in furtherance of an intended theft and, therefore, did not constitute one of
the necessary elements of robbery
The jury was instructed “theft” means “taking possession or control of
property that belongs to another with the intent to permanently deprive that person
of that property.” And “specific intent” means “not only being aware of doing an
act and doing it voluntarily, but in addition, doing it with a specific purpose in mind.”
We note that “[i]t is peculiarly the province of the jury to pass upon questions of
fact.” State v. Lowenberg, 243 N.W.2d 538, 541 (Iowa 1932). “[T]he jury is free
to believe or disbelieve the testimony of the witnesses and to give as much weight
to the evidence as, in its judgment, such evidence should receive.” State v. Hunt,
801 N.W.2d 366, 377 (Iowa Ct. App. 2011). The statute requires that the assault,
threat or placing in fear must be “to assist or further the commission of the intended
theft.” Iowa Code § 711.1 (emphasis added).
At trial, the jury heard testimony that McClellan, Keeney, and Cox teamed
up to get back the money B.M. deceptively obtained from Potts. They used cell
phones and social media to track B.M. across Story County. Finally, they heard 9
he was at his girlfriend’s aunt’s apartment2, that being Prewitt’s apartment in
Huxley. They planned a meeting place for after the encounter. They approached
the apartment armed, their faces covered with bandanas. They knocked on
Prewitt’s apartment door, and when Audrey Prewitt answered the door, she was
asked “where’s [B.M.]” or “if [B.M.] was there.” Audrey responded “no” as
McClellan drew a gun from his waistband and pointed it at her.3 She closed the
door, locked it, and squatted down on the floor. McClellan then fired shots into the
apartment and fled.
There is substantial evidence that McClellan had the specific intent to
commit a theft when he approached the apartment. In a robbery, it is immaterial
whether the defendant actually came away with any property or not. Iowa Code
§ 711.1(2) (“It is immaterial to the question of guilt or innocence of robbery that
property was or was not actually taken.”). McClellan’s purpose in traveling with
Keeney and Cox that night was to retrieve the money from B.M. And from the
steps taken to find B.M. and recoup the money, including obtaining a pistol and
concealing his identity, a reasonable jury could have concluded beyond a
reasonable doubt that his intended purpose in doing so was to deprive B.M. of that
property—i.e., commit a theft.
A reasonable jury also could conclude that it did not matter whether B.M.
was there because they also found an assault4 occurred while McClellan had the
2 Audrey testified that her teenage cousin was B.M.’s girlfriend. The night of these events, Audrey testified she had been out with friends, including her cousin. 3 Dawn and Audrey Prewitt testified as to who lived in the apartment and who was
there that night. B.M. was not present in their apartment. 4 The jury instruction as to Count II defined assault as: “1. On or about March 6,
2019, Montrell Ryan McClellan did an act which was intended to place Audrey 10
intent to commit a theft. McClellan focuses on the firing of the three shots into the
apartment as the assault. He argues that because the shots occurred after Audrey
had responded that B.M. was not in the apartment and had closed and locked the
door, there was no longer any intent to commit the theft from B.M., and therefore,
the shots were not in furtherance of the intended theft. But this ignores the
evidence that when Audrey opened the door and was confronted by McClellan and
Cox, as she was answering the inquiry whether B.M. was there, McClellan drew
the pistol from his waistband and pointed it at her. This happened at the same
time as she was answering the question and before she was able to close and lock
the door. Under the jury instruction, the jury could find this evidence established
beyond a reasonable doubt that McClellan committed this assault while he had the
intent to commit the theft from B.M. as he was informed that B.M. was not present
at the time he was pointing the pistol at Audrey.
On appeal, McClellan argues that the evidence shows he did not know
B.M.’s location so he could not have had the specific intent to steal from him at the
time. Some testimony was given that B.M.’s known vehicle was not in the
apartment complex parking lot so they did not expect B.M. to be there. And some
other testimony suggested the purpose of the shots was to scare B.M. rather than
assault him. But the jury was free to believe the version of events it considered
more credible. And, a rational jury could infer that these claims are inconsistent
with McClellan’s acts at the time of preparing for a violent confrontation by arming
Prewitt in fear of immediate physical contact which would be painful, injurious, insulting or offensive to her.” And “2. Montrell Ryan McClellan had the apparent ability to do the act.” 11
himself, donning a face covering, and planning a meeting spot for afterward. The
jury could also infer these claims were inconsistent with McClellan’s knocking on
the door and asking if B.M. was in the apartment. Finally, when Audrey said no,
McClellan did not simply retreat from the apartment and continue his search; he
pointed his gun at Audrey and fired shots into the apartment. All of this testimony
would allow a reasonable jury to conclude that McClellan approached the
apartment expecting to confront B.M. with the “specific purpose in mind” of “taking
possession or control of” the money B.M. obtained from Potts.5 Viewed in the light
most favorable to the verdict, and making all reasonable inferences available in its
favor, we conclude substantial evidence supports the conviction for robbery. We
affirm the conviction.
3. Whether there was a violation of McClellan’s right to speedy trial and his motion to dismiss should have been granted.
Rulings on denials of motions to dismiss are reviewed for abuse of
discretion. State v. Taylor, 881 N.W.2d 72, 76 (Iowa 2016). “When speedy trial
grounds are at issue, however, the discretion given to the district court narrows.”
Id.
Iowa Rule of Criminal Procedure 2.33(2)(b) provides:
If a defendant indicted for a public offense has not waived the defendant’s right to a speedy trial the defendant must be brought to trial within 90 days after indictment is found or the court must order the indictment to be dismissed unless good cause to the contrary be shown.
5 McClellan does not raise this as a deficiency in the conviction but we note here that Iowa Code provides, “A person commits theft when the person . . . [e]xercises control over stolen property, knowing such property to have been stolen, . . . unless the person’s purpose is to promptly restore it to the owner or to deliver it to an appropriate public officer.” Iowa Code § 714.1(4) (emphasis added). 12
Dismissal is required unless the State proves (1) that the defendant waived the
right to speedy trial; (2) that the delay is attributable to the defendant; or (3) that
there is “good cause” for the delay. The burden of showing that an exception
applies rests squarely with the State. Taylor, 881 N.W.2d at 76. “In determining
whether there is good cause for a delay, we focus only on one factor, the reason
for the delay.” State v. Campbell, 714 N.W.2d 622, 627–28 (Iowa 2006). When
the State satisfies its burden to show one of these exceptions applies, the State is
not prohibited from extending the prosecution. State v. Miller, 311 N.W.2d 81, 83
(Iowa 1981).
The trial information was filed on April 22, 2019, establishing a ninety-day
trial deadline of July 21, 2019. McClellan did not waive speedy trial, and on May
13, the court entered an order setting trial for June 18. On May 14, McClellan’s
court-appointed counsel informed the court of McClellan’s intention to plead guilty
and requested a plea hearing. The court scheduled the plea hearing for June 3.6
On May 31, the State filed the notice of plea agreement setting out the terms of
the agreement. Before the hearing, McClellan filed two letters with the court
complaining that his attorney was attempting to force him to plead guilty and
requesting a new attorney. At the plea hearing on the record, McClellan vacillated
about pleading guilty, finally indicated he did not want to plead guilty, and
requested new counsel. The court granted the motion, appointed new counsel,
and established a new ninety-day trial deadline of September 2. But the newly
6In the May 13 order setting trial for June 18, the court also scheduled a pre-trial conference for June 3. 13
appointed attorney determined he had a conflict and filed a motion to withdraw on
June 4.
On June 5, the court deferred ruling on the conflict and directed the new
attorney to consult with McClellan about waiver of the conflict. On June 21, the
attorney filed a second motion to withdraw, more specifically identifying the conflict.
On June 26, the court entered an order granting the second attorney’s withdrawal
and appointing a third attorney to represent McClellan. Trial was rescheduled for
July 23. On July 4, McClellan’s newly appointed attorney filed a motion to continue
the July 23 trial, citing the need for additional time to prepare for trial and
suggesting a new trial date of August 13. On July 5, the court granted the defense
motion to continue and ordered the trial continued to August 13. On August 9,
McClellan’s attorney filed a motion to dismiss based on failure to commence trial
within the ninety-day speedy trial requirement.
The court held a hearing on the motion to dismiss on August 12, and that
same day filed a thorough, five-page ruling outlining the basis for the delay and
denying the motion. The court found that McClellan never waived his right to a
speedy trial, but that the delay was attributable to him. The court also found that
the trial date of August 13, was within the ninety-day period established by the
June 3 order. Trial commenced on August 13. We find the trial court properly
applied the law, that the trial was continued at McClellan’s attorney’s request, and
the court did not abuse its discretion in denying the motion to dismiss. 14
4. Whether the district court abused its discretion in denying McClellan’s motion for mistrial.7
We review the district court’s ruling on motions for mistrial for an abuse of
discretion. See State v. Plain, 898 N.W.2d 801, 811 (Iowa 2017). “[W]e only
reverse if the district court’s decision rested on grounds or reasoning that were
clearly untenable or clearly unreasonable.” Id. “Grounds or reasons are untenable
if they are ‘based on an erroneous application of the law or not supported by
substantial evidence.’” Id. (quoting State v. Dudley, 856 N.W.2d 668, 675 (Iowa
2014)).
During the State’s case, the prosecution called Division of Criminal
Investigations (DCI) Agent Elizabeth Miller as a witness. During her examination
by the prosecutor, the following question and answer took place:
Q: Agent Miller, during the course of your investigation, did you run into a number of inconsistent statements or varying details from various sources? A: Yes, I did. Inconsistent statements are very normal in investigations. However the—throughout the investigation, the consistency was the players that were involved and that Montrell was the shooter.
Defense counsel objected and moved for a mistrial urging that the statement had
rendered an opinion as to the defendant’s guilt. The district court overruled the
opinion objection and denied the motion for mistrial. However, the court sustained
an objection that the answer was nonresponsive, admonished the witness, gave a
7 In his appeal brief, McClellan’s counsel also argues prosecutorial misconduct and a violation of defendant’s constitutional right to a fair trial. On our review of the record, we find neither of these objections were lodged during the trial nor ruled on by the district court. We find they were not preserved and may not be considered in this appeal. See State v. Bynum, 937 N.W.2d 319, 324 (Iowa 2020) (holding due process right to fair trial issue not preserved where the matter was not raised by discussion or motion, and the record does not indicate the court considered it). 15
curative instruction to the jury that restated their role, and told the jury to disregard
the challenged statement.
Our supreme court addressed how we evaluate whether the district court
abused its discretion by striking the answer and giving the jury a cautionary
instruction rather than granting a mistrial.
Because the evidence was inadmissible, we must determine whether the court abused its discretion by granting a cautionary limiting instruction rather than a mistrial. Generally, a district court’s decision not to grant a mistrial but to offer a cautionary instruction instead is entitled to broad deference. Cautionary instructions are sufficient to mitigate the prejudicial impact of inadmissible evidence “in all but the most extreme cases.” In State v. Belieu, we identified several important considerations for determining whether a cautionary instruction can adequately mitigate the prejudicial impact of inadmissible evidence. 288 N.W.2d 895, 901 (Iowa 1980). The first Belieu consideration is whether the “defendant [can] combat the evidence without compounding the prejudice.” The second consideration is how extensive the evidence is and the promptness with which it was addressed. Finally, we assess prejudice—the stronger the State’s evidence of . . . guilt is, the less prejudicial the effect of the challenged testimony.
Plain, 898 N.W.2d at 815 (citations omitted). In applying the three considerations
outlined in Belieu, we find McClellan could combat the offending proffered
evidence without compounding the prejudice, the issue was promptly addressed,
and that McClellan was not prejudiced by the offending answer. The State’s
evidence against McClellan was strong. The district court did not abuse its
discretion in choosing the path of sustaining the objection, striking the offending
answer and giving a curative instruction to the jury rather than granting defense’s
motion for mistrial. 16
CONCLUSION.
Based upon our analysis of the issues preserved and raised, we find the
convictions should be affirmed.
AFFIRMED.