State v. Bol

1

STATE OF IOWA, Plaintiff-Appellee, v. OWO ROBIN NYAL BOL, Defendant-Appellant

No. 22-0158

Court of Appeals of Iowa

November 8, 2023

Appeal from the Iowa District Court for Polk County, Scott J Beattie, Judge.

Defendant appeals his convictions for attempted murder, intimidation with a dangerous weapon, and willful injury causing serious injury.

Christopher Kragnes, Sr. and Tiffany Kragnes, Des Moines, for appellant.

Brenna Bird, Attorney General, and Louis S. Sloven, Assistant Attorney General, for appellee.

Heard by Greer, P.J., and Schumacher and Ahlers, JJ.

SCHUMACHER, JUDGE.

Owo Bol appeals his convictions for attempted murder, intimidation with a dangerous weapon, and willful injury causing serious injury. He argues the jury verdicts are not supported by sufficient evidence and the verdicts are inconsistent; the trial court erred in failing to sever his case from two of his co-defendants; the court erred in admitting the recorded statements of defendants whose cases had been severed; the court erred in admitting a detective's testimony as an expert on group crimes; and the court erred in failing to remove a juror or failing to determine whether the juror could remain impartial.

I. Background Facts and Prior Proceedings

N.M., who was sixteen years old, lived with her mother, sister, eight-year-old brother, and two-year-old nephew, D.M., at a home in Des Moines. On March 1, 2021, she planned and held a surprise birthday party for her sister. By 10:00 p.m., the party had died down. N.M. was left at home with her brother and nephew. By 10:30 p.m., her brother was asleep in his room, and N.M. sat with her nephew while he watched cartoons in the living room. After N.M. decided it was time for both her and her nephew to retire for the evening, she went outside to retrieve her cell phone charger from her mother's vehicle parked in the driveway. D.M. remained on the couch, watching cartoons.

While N.M. was in the driveway, a vehicle stopped in front of the house. N.M. saw at least four people in the car, one who was wearing a black ski mask. N.M. inquired, "Who are you?" One of the occupants responded, "You know who this is, motherfucker," and shots rang out. Twenty to thirty shots were fired from the vehicle. N.M. dove into her mother's car, fearing that her brother or nephew might be shot if she ran back into the home. The car eventually pulled away and N.M. ran to the front door of her home to make sure her brother and nephew were all right. But the door was jammed, and N.M. could not get in. She ran to a neighbor's house to call the police, but no one came to the door. She went to another neighbor's house who let her use a cell phone. N.M. then ran home. By that time, her brother had opened the door. N.M. found her nephew lying in the hallway, crying softly. He had been shot in the back of his head. N.M. managed to call 911. Two-year-old D.M. arrived at the hospital in critical condition. He survived but has permanent brain damage.

Law enforcement arrived on the scene shortly after the 911 call. With the benefit of a neighbor's porch camera, they identified the vehicle involved in the shooting as a dark-colored Nissan Rogue. Law enforcement quickly learned that a dark-colored Nissan Rogue had crashed in Dallas County. There were five occupants of that vehicle, including Bol and his co-defendants, Thon Bol^[1] and Odol Othow. Officers at the scene of the crash observed spent nine-millimeter shell casings on the floor of the vehicle. Spent shell casings had also been placed inside an empty water bottle inside the vehicle. One of the occupants had a ski mask. The individuals in the crash, including Bol, were detained. And when police detained Bol, they found two firearms in the waistband of his clothing. A third gun was found in the vehicle. Analysis of those firearms and the spent casings recovered from the scene of the shooting determined that the casings were consistent as being fired from the recovered firearms. Bol and the other occupants of the vehicle were transported back to Des Moines for further investigation.

Des Moines Police Department Detective Jeffery Shannon served as the lead detective. After Bol and the other occupants of the vehicle were brought to the station, Detective Shannon began the interviews, which were recorded. During Bol's interview, Bol conveyed that he was friends with everyone in the vehicle and that one of the individuals was his brother. Bol also told Detective Shannon that he was in Des Moines and with the others about the time of the shooting. A video taken the night of the shooting was recovered from Bol's phone which showed Bol sitting in the back of the Nissan Rogue with the others. In the video, they were brandishing the firearms recovered from Bol's waistband. Bol admitted the firearms were his and stated that no one shot the firearms that night. Bol was arrested and charged with attempted murder of N.M., attempted murder of B.C. and D.M., intimidation with a dangerous weapon with intent to injure or provoke fear, and willful injury.

Bol and the four other individuals in the vehicle were initially slated to be tried together as co-defendants. Before trial, the State requested a hearing on the admissibility of statements made by each of the defendants. The court determined the statements were not being offered to show the truth of the matter asserted, and determined portions of the recorded statements by some defendants to law enforcement were admissible. Bol moved to sever. He argued that severance was necessary because the five co-defendants had conflicting defenses. The court originally denied the motion to sever, then granted the motion to sever, and then, following the State's motion to reconsider, the court consolidated the trial for Bol and two others. Bol filed a motion in limine, seeking to prohibit testimony from Detective Shannon on "gangs, complex crimes, and evasive answers." The court ruled that the detective could testify to complex criminal activity but not as to evasive answers or gangs. Bol was ultimately tried with two other co-defendants, Thon Bol and Othow.

N.M.'s 911 call was admitted as evidence and played for the jury. Defense counsel noticed a juror crying while the call was played. Defense counsel moved to remove the juror, or in the alternative, question the juror to determine whether she could remain impartial. The court declined the invitation to do either but advised counsel that the court would monitor the juror and reexamine the issue if any further issues with the juror presented themselves. No other issues were raised concerning this particular juror during trial, and the matter was not addressed again.

Jury trial commenced on July 26, 2021, and concluded on August 2. The State called sixteen witnesses, including Detective Shannon who testified to his knowledge and experience regarding "group crimes." Bol did not testify, but one of his co-defendants, Othow, testified in his own defense. The jury found Bol guilty of attempted murder of N.M., intimidation with a dangerous weapon, and willful injury causing serious injury. Bol was acquitted of the attempted murder of B.C. and D.M. Following the verdict, Bol filed a motion for a new trial and a motion in arrest of judgment. He argued the verdict was contrary to law and evidence. The court denied his motions and sentenced Bol to a total term of imprisonment not to exceed thirty-five years, with Bol eligible for parole after twenty-two and a half years.^[2] Bol now appeals.

II. Analysis a. Sufficiency of the Evidence

Bol argues that there was insufficient evidence presented at trial to support the verdicts.^[3] Sufficiency of the evidence is reviewed for correction of errors at law. State v. Crawford, 972 N.W.2d 189, 202 (Iowa 2022). "In conducting that review, we are highly deferential to the jury's verdict. The jury's verdict binds this court if the verdict is supported by substantial evidence." Id. Evidence is substantial when it is sufficient to convince a rational trier of fact of guilt beyond a reasonable doubt. Id. Evidence is viewed in the light most favorable to the State, but evidence that raises only suspicion, speculation, or conjecture is not substantial. State v. Howse, 875 N.W.2d 684, 688 (Iowa 2016).

There is no dispute that a shooting occurred at the home on March 1, 2021, or that D.M. was shot and sustained serious injury. But, Bol argues that the evidence presented at trial is insufficient to show he had anything to do with the shooting. He states, "merely being together does not a crime create." In essence, Bol asserts that although he was found in a vehicle matching the description of the vehicle involved in the shooting; in possession of two of the firearms consistent as being used in the shooting; surrounded by spent casings from those firearms; featured in a video brandishing those firearms taken after the shooting; with Thon Bol, who was in possession of a black ski mask which N.M. described one of the shooters wearing; in the vehicle with a third gun which was also consistent as being used in the shooting; such does not rise to the level of substantial evidence for a rational trier of fact to find him guilty beyond a reasonable doubt. We disagree.

Bol also argues that the State failed to show that there had been a conspiracy between him and his co-defendants. But Bol was not convicted of conspiracy.^[4] He also argues that there was no direct evidence presented to put him in the car at the time of the shooting, but "direct evidence of guilt is not required .... A defendant may be convicted solely on circumstantial evidence if it is sufficiently compelling to convince a . . . jury of the defendant's guilt beyond a reasonable doubt." State v. Tipton, 897...