State v. Yak

1

STATE OF IOWA, Plaintiff-Appellee, v. REATH STEPHEN YAK, Defendant-Appellant

No. 21-1185

Court of Appeals of Iowa

January 10, 2024

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

A defendant appeals his convictions for two counts of attempted murder, intimidation with a dangerous weapon, and willful injury.

Martha J. Lucey, State Appellate Defender, and Rachel C. Regenold Assistant Appellate Defender, for appellant.

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

Considered by Bower, C.J., and Tabor and Greer, JJ.

GREER JUDGE.

The State charged five defendants in connection with a drive-by shooting at a Des Moines residence. In a trial severed from his co-defendants, a jury found Reath Yak guilty of intimidation with a dangerous weapon, willful injury causing serious injury, and two counts of attempted murder. On appeal, Yak argues the State presented insufficient evidence to support his convictions. He also contends the district court erred in denying his challenge to the prosecutor's peremptory strike of a Black woman from the jury under Batson v. Kentucky, 476 U.S. 79 (1986). We find substantial evidence to support his convictions and affirm the district court's denial of Yak's Batson challenge.

I. Facts and Prior Proceedings.

On March 1, 2021, sixteen-year-old N.M. was babysitting when she slipped outside around 10:40 p.m. to retrieve a phone charger from her mother's car. Inside the house, her nine-year-old brother, B.C., was sleeping and her two-year-old nephew, D.M., was watching cartoons. Moments later, N.M was dodging bullets, thinking "it was going to be my last day living." As the shots rang out, N.M. ducked into the car for shelter. Investigators later found eleven bullets struck the vehicle. Sixteen bullets struck the house. One bullet struck D.M. in the head.

Right before the shooting, N.M. saw a dark-colored sport utility vehicle (SUV) stop on the street in front of her house. The driver's side was closest to the house. Inside were "at least four" males. N.M. did not recognize the occupants, but she later described them as "really dark" skinned. They said "something" to N.M.; she asked: "Who are you?" One responded: "You know who this is." Then the shooting started. Before she ducked into the vehicle, N.M. saw only one shooter-a Black male wearing a ski mask reaching over the roof from the passenger side. N.M. heard "at least" thirty gunshots before the SUV sped away.

After the shooting, N.M. returned to the house to check on her brother and nephew. But extensive damage to the front door prevented her from going back inside. Panicked, she ran to a neighbor's house to call 911. When the medics arrived, they found D.M. with a gunshot wound to his head. They rushed the two-year-old to the children's hospital where he underwent surgery to remove the bullet from his scalp. D.M. survived, but he now has seizures, needs medication, and is paralyzed in his right hand.

Meanwhile, police canvassed the neighborhood looking for surveillance systems. They succeeded. One neighbor's system picked up what sounded like "multiple guns" being fired at a shooting range. Another camera showed that the "possible suspect vehicle" was a black Nissan Rogue that had circled back around to the house several times. Des Moines police broadcast that description to other law enforcement agencies.

Just after midnight, a passerby reported a single-car crash on westbound Interstate 80 in Dallas County. The car was a Nissan Rogue. It was "disabled up against the center guard wire." Deputy Nicholas Merwald arrived at the crash scene around 12:30 a.m. From the frost building up on the windows in the early March chill, he estimated that the SUV had been stranded there at least half an hour. The airbags had deployed, yet none of the five occupants tried to move while speaking to the deputy. The man in the driver's seat, Thon Bol, said he swerved to avoid hitting a deer. He said they were waiting on his sister and didn't need any help. Thon's brother, Owo Bol, was a backseat passenger, along with Odol Othow and Caine Dominguez-Schiesl. Yak sat in the front passenger seat.

After state troopers arrived to assist, Deputy Merwald directed the driver back to his patrol vehicle. Thon Bol had to crawl through the front passenger seat to get out because the driver's door was wedged against the cable barrier. As this was happening, officers noticed a Glock pistol under the driver's seat. That discovery created a "tense situation" as the officers removed the four remaining passengers. During a search of Thon Bol, officers found a black ski mask. During a search of Owo Bol, officers found two more nine-millimeter pistols.^[1] They also collected many spent bullet casings from the SUV. Those casings matched casings recovered at N.M.'s residence.

All five occupants were taken to the Des Moines police station to be interviewed. In his interview, Yak-who lived in Storm Lake-confirmed that the Nissan Rogue belonged to his parents. He acknowledged being friends with Owo Bol but denied knowing about the guns found in the SUV. When asked how he knew Bol, Yak just repeated over and over: "I know him." Yak did tell Detective Jeffrey Shannon that the group came to Des Moines to see "family," though he did not disclose whose family. Yak was standoffish during the interview, answering Detective Shannon's questions with a monotone delivery and using as few words as possible. Yet their closing exchange was revealing. As the detective was leaving the room, he accused Yak of driving the group to Des Moines where they "shot a two-year-old boy." Yak claimed: "I never even drove." Detective Shannon repeated the accusation, telling Yak the two-year-old was "probably not going to make it." Yak responded: "So that's who came to the door?" Shannon followed up: "What's that?" Yak rephrased: "Who came to the door?" Shannon asked: "What door?" Yak replied: "Never mind."

After those interviews and other evidence gathering, the State charged Yak and his four companions with attempted murder, a class "B" felony, in violation of Iowa Code section 707.11(1) (2021);^[2] intimidation with a dangerous weapon with intent, a class "C" felony, in violation of section 708.6; and willful injury causing serious injury, a class "C" felony in violation of section 708.4(1). At a pretrial conference ten days before trial involving all five defendants, a Polk County sheriff's deputy heard Owo Bol say across the courtroom: "Hey, Yak, you better not fucking fold. Don't fucking say shit."

The trial started with all five defendants together. But after jury selection and opening statements, the court severed the prosecutions of Thon Bol, Owo Bol, Dominguez, and Othow.^[3] Yak consented to continuing with the selected jury.^[4]That jury found Yak guilty as charged. For the intimidation and willful-injury offenses, the jury found that Yak possessed or aided and abetted someone who possessed a dangerous weapon. The district court sentenced Yak to concurrent prison sentences for a total of twenty-five years-with mandatory minimums of seventeen and one-half years on the attempted murder counts and five years on the intimidation and willful injury counts.

Yak appeals, arguing two issues.

II. Analysis.

A. Sufficiency of the Evidence.

Yak contests the sufficiency of the State's evidence for all four crimes. We review his challenge for correction of legal error. See State v. Acevedo, 705 N.W.2d 1, 3 (Iowa 2005). If substantial evidence supports the verdicts, we will uphold them. State v. Ramirez, 895 N.W.2d 884, 890 (Iowa 2017). Evidence is substantial if-when viewed in the light most favorable to the verdicts-it can convince a rational jury that the defendant is guilty beyond a reasonable doubt. State v. Reed, 875 N.W.2d 693, 704-05 (Iowa 2016).

1. Aiding and Abetting All Four Crimes.

For all four counts, the court instructed the jurors that they could find Yak guilty if he acted either as the principal or as an aider and abettor. On appeal, Yak concedes the jury could have inferred from the State's evidence that he was "likely present in the vehicle at the time of the shooting." But he argues that the State did not prove that he "knowingly approved or agreed to the commission of the crimes or that he encouraged or actively participated." We read Yak's challenge to the State's proof of aiding and abetting as subsuming the theory that he acted as the principal shooter.

The court provided the jury with this definition:

"Aid and abet" means to knowingly approve and agree to the commission of a crime, either by active participation in it or by knowingly advising or encouraging the act in some way before or when it is committed. Conduct following the crime may be considered only as it may tend to prove the defendant's earlier participation. Mere nearness to, or presence at, the scene of the crime, without more evidence, is not "aiding and abetting." Likewise, mere knowledge of the crime is not enough to prove "aiding and abetting."

Yak emphasizes that the State had to show "something more than mere presence" to prove he aided and abetted the other defendants. He urges that even if he knew what was going on during the shooting, he did not participate in the "planning, execution, and attempted flight from this crime."

But the State can prove aiding and abetting without direct proof of participation. Jurors may infer an accused's participation from "circumstantial evidence such as 'presence, companionship, and conduct before and after the offense.'" State v. Lewis, 514 N.W.2d 63, 66 (Iowa 1994) (citation omitted). Since Yak conceded that the jury could infer his presence in the SUV during the...