State of Iowa v. Nibitanga Salvator

• Court: Court of Appeals of Iowa
• Decided: October 11, 2023
• Docket: 22-0643
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 22-0643 Filed October 11, 2023

STATE OF IOWA, Plaintiff-Appellee,

vs.

NIBITANGA SALVATOR, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Scott County, John Telleen, Judge.

A defendant challenges the sufficiency of the evidence supporting his

conviction. AFFIRMED.

Martha J. Lucey, State Appellate Defender, and Theresa R. Wilson,

Assistant Appellate Defender, for appellant.

Brenna Bird, Attorney General, and Olivia D. Brooks, Assistant Attorney

General, for appellee.

Considered by Ahlers, P.J., Badding, J., and Vogel, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2023). 2

AHLERS, Presiding Judge.

Two men robbed a pizza-delivery driver at gunpoint and fled the scene.

Investigators eventually identified Nibitanga Salvator as one of the suspected

robbers. The State charged Salvator with two crimes. Count I charged him with

first-degree robbery, and count II charged him with felon in possession of a firearm.

A jury ultimately found Salvator guilty of second-degree robbery, a lesser included

offense of count I, and acquitted him on count II. Salvator appeals. He challenges

the sufficiency of the evidence identifying him as one of the robbers.

We review challenges to the sufficiency of the evidence for corrections of

errors at law. State v. Hall, 969 N.W.2d 299, 304 (Iowa 2022). Evidence is

sufficient if there is substantial evidence in the record to support the conviction. Id.

Evidence is substantial if it is sufficient to convince a rational trier of fact that the

defendant is guilty beyond a reasonable doubt. Id. In assessing the sufficiency of

the evidence, we view it in the light most favorable to the State. Id.

Central to Salvator’s argument is his claim that certain evidence, namely a

witness identification and DNA evidence, was so unreliable that it cannot be

considered to implicate him. But “[i]t is not the province of the court . . . to resolve

conflicts in the evidence, to pass upon the credibility of witnesses, to determine the

plausibility of explanations, or to weigh the evidence; [instead,] such matters are

for the jury.” State v. Musser, 721 N.W.2d 758, 761 (Iowa 2006) (quoting State v.

Williams, 695 N.W.2d 23, 28 (Iowa 2005)). Contrary to Salvator’s argument,

“[a]ppellate review of the jury’s verdict is not the trial redux.” State v. Mathis, 971

N.W.2d 514, 519 (Iowa 2022). And Salvator raises no challenge to the

admissibility of the witness-identification or the DNA evidence—only challenges to 3

the credibility of the evidence. We understand Salvator’s complaints about the

procedure used in the witness-identification process. He even presented an expert

witness to explain the flaws in that process. Likewise, Salvator presented expert

testimony about the DNA testing process, potential for contamination during

testing, potential for transfer DNA, and limitations of information that may be

gleaned from DNA results.1 But the jury considered all the evidence, including that

of his experts, and ultimately found the evidence established his participation in

the robbery. It is not for this court to reweigh the evidence, make our own credibility

determinations, and reach our own verdict.

Our review of the evidence, in the light most favorable to the jury verdict,

reveals the following facts. On the day of the robbery, Vickie2 met up with a friend

and his friend and allowed them to use her car. Vickie’s friend drove the car, with

Vickie and the friend’s friend in the car as passengers. Vickie asked her friend to

let her drive because she wanted to leave, but her friend refused. Later, the trio

picked up two men that Vickie had not met before. They parked, and the two men

exited the car, walked into an alley, and went around a corner.

Meanwhile, a pizza-delivery driver was delivering an order. It was dark out,

and the delivery driver noticed two men walking through a nearby alley. He noticed

the men again when he walked back to his car after making his delivery. He got

in his car and went to lock the door, but before he could, the men banged on his

1 Notably, Salvator’s expert did not challenge the actual DNA typing results as

inaccurate. 2 This person’s name is not Vickie. To maintain confidentiality, we have used a

random-name generator to replace the person’s real name with the fictitious name Vickie. 4

window and opened the car door. They pushed him back into the car “with guns

in [his] chest” and demanded money. He gave them his work wallet, his personal

wallet, and the credit card receipts from his deliveries that night. The men ran

away. The delivery driver called police to report the incident, describing the

assailants by race, height, and clothing color.

Vickie, her friend, and his friend waited at Vickie’s car for the two men who

exited the car to return. The two men came running back “super fast,” and each

got in either side of the back seat, resulting in Vickie sitting in between them. Vickie

noticed the man to her right had a wallet in his hand when they returned. They

drove away.

Police officers, responding to the delivery driver’s call, canvased the area

around the robbery. One officer noted a vehicle occupied by people matching the

description of the assailants. It was Vickie’s vehicle being driven by her friend.

The officer followed the vehicle for a short time before turning on flashing lights to

initiate a traffic stop. The driver did not stop and led the officer on a chase. The

chase ended when the officer rammed the fleeing car with his car, causing the

fleeing car to spin to a stop. The front passenger and the men on either side of

Vickie fled the scene, leaving Vickie and her friend. An officer canvassing the

surrounding area looking for the three people who fled found one man hiding under

a car. A search of his person revealed credit card receipts from the pizza business

for which the robbery victim worked. Vickie later identified him as one of the two

men they picked up that night.

Eventually, the contents of Vickie’s car were inventoried, and some items

were selected for forensic testing, including a partially empty cigarette pack found 5

toward the right side of the back seat. Neither Vickie, her friend, nor the friend’s

friend are cigarette smokers. DNA testing revealed two contributors on the

cigarette pack. The DNA of the major contributor from the pack matched Salvator’s

DNA.

Investigators also set up a printed photo lineup of six men to show Vickie.

She identified Salvator as the other man who was in the back seat with her. Later,

she clarified he sat to the right of her, and she also identified the front passenger

from the six-man photo lineup.3

This is sufficient evidence to establish Salvator’s identity as one of the

robbers. The timing of the robbery lined up with the time the two men left Vickie’s

car for a period of time before returning with a wallet. One of the men was

discovered with the credit card receipts taken from the delivery driver. These facts

support a finding that the two men that Vickie’s friend picked up that night were the

robbers. And the evidence supported a finding that Salvator was one of those two

men. Vickie identified him as such. Testing revealed Salvator’s DNA on the

cigarette pack found on the same side of the back seat where he sat. None of the

original three occupants of the car smoked, permitting a fact finder to conclude it

came from the two men picked up that night. The evidence places Salvator in the

car that night and identifies him as one of the two men who carried out the robbery

of the pizza-delivery driver. Finding the evidence sufficient to permit a jury to

identify Salvator as one of the robbers, we affirm.

AFFIRMED.

3 Vickie also noted she knew two of the other men, but she stated they were not

involved.