State of Iowa v. Aki Malik Ross, 845 N.W.2d 692

Background

On March 30, 2011, Aki Ross fired a .45-caliber handgun into a group walking in Davenport, striking and killing Joevante Howard; police recovered eight .45 cartridge cases from one firearm. Ross admitted possessing a .45 that day; another person fired one .40 round.
The State charged Ross with first‑degree murder and initially one count of intimidation with a dangerous weapon with intent; charges were later amended to one murder count and seven intimidation counts.
At trial the jury convicted Ross of voluntary manslaughter (lesser included of murder) and five counts of intimidation with a dangerous weapon with intent, acquitting on two intimidation counts.
Trial counsel moved for directed verdicts but did not specifically object to submitting seven separate intimidation counts, did not object to the marshaling instruction’s use of “victim,” and did not move for judgment of acquittal after the verdict.
The district court imposed consecutive 10‑year sentences on each count; Ross appealed arguing multiple ineffective‑assistance claims and evidentiary rulings.
The Iowa Supreme Court reviewed ineffective‑assistance claims on the record and held counsel was ineffective for failing to move post‑verdict to reduce the number of intimidation convictions; the court affirmed two intimidation convictions and voluntary manslaughter, vacated three intimidation convictions, vacated all sentences, and remanded for resentencing.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Ross)	Held
Whether jury instruction on intimidation (use of word “victim”) was erroneous	Instruction correctly stated elements for shooting within an assembly; victim is the assembly	Instruction should have named each particular victim; unit of prosecution tied to individuals	Court: Instruction adequate; “victim” can refer to the assembly; counsel not ineffective for failing to object
Whether counsel was ineffective for failing to move for acquittal at close of evidence on sufficiency to submit seven counts	Evidence supported submitting multiple counts because assault on assembly can support multiple prosecutions	Counsel should have argued State lacked evidence that each charged victim experienced fear	Court: Counsel’s generic directed verdict lacked the specific objection; but even had it been made, sufficient evidence supported at least two units of prosecution; counsel not ineffective on this ground
Whether counsel was ineffective for failing to move for judgment of acquittal after verdict to challenge five convictions (unit of prosecution/merger)	Number of separate acts is for the factfinder; multiple convictions can stand if supported by evidence	Shots constituted only one continuous act (or fewer acts) — convictions should be combined	Court: Applying tests (time, place, identity, intervening act, similarity, intent), evidence supported only two separate acts (two rounds of shots separated by a pause and an intervening act); counsel ineffective for failing to move post‑verdict; three intimidation convictions vacated
Evidentiary and other preserved issues (e.g., reading deposition, excluded photos)	District court within discretion; deposition issue record inadequate for direct review	Trial counsel erred by not securing deposition read to jury; photos should have been admitted	Court: Preserved deposition claim for postconviction relief (record inadequate for direct review); court did not abuse discretion excluding photos

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two‑prong ineffective assistance framework)
State v. Velez, 829 N.W.2d 572 (Iowa 2013) (tests for separate assault acts/unit of prosecution analysis)
State v. Smith, 573 N.W.2d 14 (Iowa 1997) (708.6 offense punishes firing into an assembly, victim is the assembly)
State v. Crone, 545 N.W.2d 267 (Iowa 1996) (standard for reviewing sufficiency of the evidence)
State v. White, 319 N.W.2d 213 (Iowa 1982) (apprehension element requires considering victim’s state of mind; fear may be inferred)
State v. Neiderbach, 837 N.W.2d 180 (Iowa 2013) (view evidence in light most favorable to State when assessing substantial evidence)
State v. Williams, 695 N.W.2d 23 (Iowa 2005) (review of sufficiency standard; affirm if substantial evidence supports verdict)