Multiple Shots Constitute Single Act of Intimidation, IA High Court Holds

Iowa case law summary by Attorney Richard Clem: Criminal law, multiple offenses.

State of Iowa v. Aki Malik Ross. Iowa criminal law, multiple offenses.

On March 30, 2011, a group of people including Joevante Howard was on its way to a birthday party. They were walking east on 12th Street in Davenport when the passed a house at the corner of Pershing Avenue. Aki Ross was sitting on the front porch of the house with four or five other people.

When Ross saw the group, he went upstairs to avoid an altercation. He recognized Joevante's uncle, Milton Howard, as one of the people n the group. Ross yelled out the window that he didn't want any problems. Eventually, Ross realized that the group wouldn't be leaving soon, so he went back down to the porch.

There was an argument, and at one point, several people physically restrained Ross, who had a gun in his waistband. After about fifteen minutes, Milton told Ross to put down the gun and come into the street to fight. Ross declined to do so, and Milton ran to catch up with the group, which had started to walk away.

Soon thereafter, Ross ran into the street with the gun and began shooting. There were two series of shots. Ross fired three or four times and then paused. During the pause, Joevante crossed the street, but Ross began firing again. Joevante was struck twice, once in the head and once in his thigh. He died as a result of the gunshot wound to his head. Police later recovered eight cartridge cases from the scene. Another cartridge, apparently from a member of the group who also shot, was also recovered.

Ross was charged in Scott County District Court with one count of first-degree murder and seven counts of intimidation with a dangerous weapon. The defendant made a pretrial motion to dismiss six of the intimidation counts on the grounds that there was only a single act of intimidation, rather than one for each shot. This motion was denied. Significantly, the defendant's attorney did not make a motion for acquittal on that same ground after the evidence was presented at trial, even though other motions for acquittal were made and denied.

The jury found Ross guilty of the lesser-included crime of voluntary manslaughter. It found him guilty of five of the seven counts of intimidation with a dangerous weapon. On two counts of intimidation, it found him not guilty.

Ross was sentenced to ten years for each count, the sentences to run consecutively. Ross appealed, and the case was eventually heard by the Iowa Supreme Court. He raised a number of issues, but the one which gained traction was the question of whether he could be convicted of five separate counts of intimidation. The state had taken the position that each separate shot constituted a separate offense of intimidation. On appeal, Ross took the position that the five separate shots merged into a single episode of intimidation, and that he should not have been convicted of multiple counts.

The case was complicated by the fact that Ross's trial attorney had not made a motion for acquittal on these grounds. Therefore, the issue was framed in terms of whether the conviction should be reversed on the grounds of ineffective assistance of counsel for failing to raise the issue at trial. The Supreme Court agreed in part and reversed and remanded.

The statute under which Ross was convicted, Iowa Code section 708.6 makes it a felony for a person "with the intent to injure or provoke fear or anger in another, shoots ... a dangerous weapon ... within an assembly of people, and thereby places the ... people in reasonable apprehension of serious injury."

The state cited a Kentucky case, Hennemeyer v. Commonwealth, 580 S.W.2d 211 (Ky. 1979), which held that each individual shot constituted a separate offense under a similar statute. It also cited similar cases from Missouri and North Carolina. But the Iowa court noted that in those cases, this holding was justified because there had been a break in time between the shots, making them separate acts, rather than one continuous act.

The Court also cited a Florida case, Williams v. State, 90 So. 3d 931 (Fla. Ct. App. 2012), which held that multiple shots were a single incident, since there was no intervening act between shots and there was no evidence that the defendant formed a new intent with each shot. Therefore, in the Florida case, there was a single continuous course of conduct which only justified one charge. The court also cited a New Mexico case with a similar holding.

The Supreme Court noted that if the legislature had chosen, it could have criminalized each shot when it enacted the statute. But as the statute is written, the court held that there were at most two acts of intimidation. It based this finding on the fact that there were two distinct series of shots, separated by a pause. Each series of shots was a continuous act. Therefore, the court held that the evidence supported conviction on two counts of intimidation, but not five.

The Supreme Court stated that had Ross's attorney made a motion to acquit on the additional three counts, the motion should have been granted. Since that motion was not made, the Supreme Court instead reversed the conviction on the grounds of ineffective assistance of counsel. Since Ross had been sentenced to consecutive terms, it reversed and remanded for resentencing.

The case was one of two handed down the same day with the same holding. The other was State v. Gines.

No. 11–1133 (Iowa Mar. 21, 2014).

Please see the original opinion for the court's exact language.


Richard P. Clem is an attorney and continuing legal education (CLE) provider in Minnesota. He has been in private practice in the Twin Cities for 25 years. He has a J.D., cum laude, from Hamline University School of Law in St. Paul and a B.A. in History from the University of Minnesota. His reported cases include: Asociacion Nacional de Pescadores a Pequena Escala o Artesanales de Colombia v. Dow Quimica de Colombia, 988 F.2d 559, rehearing denied, 5 F.3d 530 (5th Cir. 1993), cert. denied, 510 U.S. 1041 (1994); LaMott v. Apple Valley Health Care Center, 465 N.W.2d 585 (Minn. Ct. App. 1991); Abo el Ela v. State, 468 N.W.2d 580 (Minn. Ct. App. 1991).

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