State of Iowa v. Tony Cecil Orr Jr.

IN THE COURT OF APPEALS OF IOWA

No. 22-1743
Filed January 10, 2024

STATE OF IOWA,
Plaintiff-Appellee,

vs.

TONY CECIL ORR JR.,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Black Hawk County, David F. Staudt,

Judge.

The defendant appeals his convictions and sentences for intimidation with

a dangerous weapon, going armed with intent, and person ineligible carrying a

dangerous weapon. AFFIRMED.

Karmen Anderson, Des Moines, for appellant.

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

General, for appellee.

Considered by Bower, C.J., Chicchelly, J., and Blane, S.J.*

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

(2024).
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BLANE, Senior Judge.

Tony Cecil Orr Jr. appeals the jury’s guilty verdicts and his sentences for

the crimes of intimidation with a dangerous weapon, going armed with intent, and

person ineligible carrying a dangerous weapon. He argues (1) there was

insufficient evidence to support his identification as the shooter, (2) the marshaling

instruction regarding going armed with intent was a misstatement of the law, and

(3) based upon the erroneous jury instruction the sentences for going armed with

intent and intimidation with a dangerous weapon should have merged. Upon our

review, we affirm.

I. Background facts and proceedings.

The following could be found by the jury based upon the evidence presented

at trial. On April 20, 2022, two men entered the Logan Convenience Store in

Waterloo. The store clerk on duty, Derrick Tatum, testified he knew the taller of

the two men was Alante Amaechi from an encounter with him in the store a few

days earlier over the disputed price of a lighter. Tatum did not know the other

shorter man, who was wearing a grey hooded sweatshirt with “Backwoods” printed

in the center in red lettering, a dark-colored mask, white pants, and black and red

Nike sneakers. Tatum’s testimony was bolstered by the store surveillance video

that recorded the events and was admitted into evidence.

Amaechi started rehashing his earlier disagreement with Tatum. A few

minutes into Amaechi’s threats, the shorter man followed Amaechi towards the

store door. Chris Wright, a store customer, watched Amaechi pass something to

that man, which turned out to be a loaded firearm. Amaechi kept threatening

Tatum. A few moments later, the shorter man lifted his sweatshirt, pulled a firearm
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from the waistband of his pants, stepped towards and fired at least three shots at

Tatum, and then ran out the door with Amaechi following after. Although the

shorter man wore a mask, at trial Tatum identified Orr as the person who shot at

him based upon the eyes, nose, and mouth that were visible.

The State presented additional evidence. On April 20, Destiny Waskow

was Alante Amaechi’s girlfriend although by the time of trial they had broken up.

Waskow testified that she picked up Amaechi and his brother, Orr, at Amaechi’s

companion’s house where Orr was staying on a visit from Memphis, Tennessee.

Waskow drove Amaechi and Orr in her black Ford Fusion to the Logan

Convenience Store and parked on the street just past the store. Before exiting the

vehicle Amaechi tucked a firearm in the side of his pants. Waskow described the

firearm as a “cop gun with a long stick,” meaning a long magazine. Orr also exited

the vehicle. Amaechi walked towards the convenience store followed by Orr.

Waskow remained in her vehicle parked in the street. She heard gunshots and

saw Orr run out of the store followed by Amaechi.

Amaechi got in the driver’s seat, and Orr got in the back passenger seat.

Amaechi quickly sped away from the store. After Orr was in the car, he took off

his sweatshirt, and Waskow saw him holding the firearm. She heard Orr and

Amaechi yelling about what happened in the store. Orr “said that they handed the

gun back to each other” and he shot it. They went back to Amaechi’s companion’s

place. Once there Orr and Amaechi grabbed their clothing, including the

“Backwoods” sweatshirt Orr was wearing and ran into the house.

Back at the convenience store, Tatum called the police and reported the

shooting. Waterloo police officers responded and found three shell casings near
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the store entrance and bullet holes on the wall behind the cashier’s counter as well

as in a cardboard display, cooler door, and the cashier’s counter.

On April 29, Waterloo police executed a search warrant at Amaechi’s

companion’s residence, where Orr was staying. There they located a grey hooded

sweatshirt with “Backwoods” printed in red lettering and a pair of red and black

Nike sneakers. They also located a black extended magazine, a smaller silver and

black magazine, and a box of ammunition.

As part of the investigation, Detective Sadd interviewed Orr, which was

video recorded and played for the jury. Orr acknowledged that Amaechi was his

brother. He admitted the “Backwoods” sweatshirt found during the execution of

the search warrant belonged to his girlfriend, and he owned the red and black Nike

sneakers. During the interview Orr referred to these items as his clothes. He

admitted he was visiting from Memphis, Tennessee, and brought the magazine

and bullets to Amaechi’s companion’s house but did not bring a firearm. When

asked about the “mags” and bullets found in the house, Orr explained he did not

own a gun and knew that his magazine and bullets were not compatible with the

gun used at the convenience store. He also admitted to Detective Sadd that he

was with Amaechi before the shooting but did not go into the store with him. Orr

claimed he stayed in the car with Waskow and a person he called “TJ” went into

the store. Orr first stated he did not know TJ’s full name. He then claimed that TJ

was his brother, and he was not “going to give his brother’s name.” When the

detective asked about the shooter, Orr claimed the shooter was someone in the

car with him that “is like a brother to me,” but he did not know his name, even

though he brought this person with him to Waterloo. Orr agreed the shooter was
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wearing his girlfriend’s sweatshirt with the red “Backwoods” lettering and his red

and black Nike sneakers, but he could not explain how the shooter got them. Orr

also did not know who gave this person the gun. As to the magazines and bullets

found at the house where Orr was staying, Orr admitted these were his. Detective

Sadd testified these items were consistent with the type of firearm and bullets used

in the shooting at the convenience store.

Detective Sadd followed up Orr’s interview by checking whether Orr used

Facebook. He reviewed cell phone data from Amaechi, his companion, and Orr’s

girlfriend, and saw a Facebook conversation with a “TCE TJ Grape.” He located

TCE TJ Grape’s Facebook profile, and most of the profile’s photos were of Orr.

TCE TJ Grape also listed his hometown as Memphis, Tennessee.

The State charged Orr with intimidation with a dangerous weapon, a class

“C” felony, in violation of Iowa Code section 708.6(1) (2022); going armed with

intent, a class “D” felony, in violation of section 708.8; and person ineligible

carrying a dangerous weapon, a serious misdemeanor, in violation of

section 724.8B. The jury returned guilty verdicts on all three counts. The district

court sentenced Orr and imposed an indeterminate sentence of ten years for

intimidation, five years for going armed, and ninety days with credit for time served

for ineligible carrying. The court ran all the sentences concurrently. Orr appeals.

II. Analysis.

A. Whether sufficient evidence supports the jury’s verdicts.

We review “challenge[s] to the sufficiency of the evidence for the correction

of errors at law, viewing the evidence in the light most favorable to the State.” State

v. Brown, 996 N.W.2d 691, 695–96 (Iowa 2023). In doing so, we are bound by the
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jury's verdict if it is supported by “evidence sufficient to convince a rational trier of

fact the defendant is guilty beyond a reasonable doubt.” State v. Mong, 988

N.W.2d 305, 312 (Iowa 2023) (quoting State v. Jones, 967 N.W.2d 336, 339 (Iowa

2021)).

Orr’s argument commences, “In this case, the two state witnesses simply

were not credible,” referring to Tatum and Waskow. He argues that the

surveillance video is the best evidence and shows at no time did the shooter

remove the mask. He surmises “[i]t is likely the state forced this identification” and

“[i]t is highly improbable that Tatum could have identified Orr based on the limited,

brief interaction and the mask that covered Orr’s facial features.” He also

complains, “Waskow’s testimony is also suspect. She was dating Amaechi in April

2022, but they had subsequently broken up.” He also argues, “There was no

credible evidence to support that she was actually at the Logan Convenience Store

on April 20, 2022.” This last contention ignores Orr’s own admissions to the

detective that he traveled to the convenience store with Waskow in her vehicle

along with Amaechi.

We do not look at Tatum or Waskow’s testimony in isolation but consider all

the evidence together. Ultimately it is the jury’s function “to weigh the evidence

and ‘place credibility where it belongs.’” State v. Shanahan, 712 N.W.2d 121, 135

(Iowa 2006) (citation omitted). The question is whether the evidence supports the

finding the jury made, not whether it would support a different finding. State v.

Lacey, 968 N.W.2d 792, 800–01 (Iowa 2021). This jury found Tatum and Waskow

credible. And in addition to Tatum and Waskow’s testimony and the store video,

there was other corroborative evidence. During the search of the residence where
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Orr was staying, police discovered the “Backwoods” sweatshirt and the red and

black Nike sneakers. Orr now argues, “There was nothing to tie Orr specifically to

the items versus anyone else who would have had access in the home.” But this

again ignores that Orr admitted in his police interview that these items belonged to

his girlfriend and him, respectively. Also, the magazines and bullets found at the

house were consistent with the type of firearm and bullets used in the convenience

store. In the recorded police interview Orr made several admissions including that

he was at the convenience store in Waskow’s car, but that he did not go into the

store. He claimed an unnamed relative—“a brother” or someone who was “like a

brother”—went into the store and was the shooter. Orr refused to name this person

and only referred to the person as “TJ”, but when the detective checked this out

on Facebook, TJ’s page contained photos of Orr. The jury was free to disregard

Orr’s explanations to police.

Upon our review, we find the evidence presented to the jury, taken in the

light most favorable to the verdict, constitutes substantial evidence. A rational jury,

based upon this evidence, could conclude beyond a reasonable doubt that Orr was

the shooter.

B. Whether the jury instruction on going armed with intent
misstated the law.

Orr next contends the district court misstated the law when it submitted the

going armed with intent jury instruction without a necessary element of the offense,

movement. Preliminarily, the State contests error preservation on this issue. The

State points out that Orr’s counsel did not object to the trial court’s marshaling

instruction setting forth the elements of going armed with intent. Orr concedes in
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his appeal brief that his trial counsel did not object to this instruction that he now

challenges.

A timely objection to jury instructions in criminal proceedings is necessary

to preserve alleged error for appellate review. State v. Ondayog, 722 N.W.2d 778,

785 (Iowa 2006). Because Orr did not object, he did not preserve the error for our

review.

But Orr goes on to argue that we should bypass error preservation or adopt

plain error, which the supreme court has rejected. See State v. Treptow, 960

N.W.2d 98, 109 (Iowa 2021). As Orr failed to preserve error on his claim

concerning the jury instruction, we do not address it.

C. Whether the sentences for going armed with intent and
intimidation with a dangerous weapon must be merged.

Finally, Orr contends the erroneous jury instruction results in the offense of

going armed merging with the intimidation with a dangerous weapon. Thus, he

argues the separate sentences are illegal and must be vacated. We review claims

of an illegal sentence involving merger for the correction of errors at law. Brown,

996 N.W.2d at 696. Unlike jury instructions, illegal sentences may be raised at

any time. See Anderson v. Iowa Dist. Ct., 989 N.W.2d 179, 181 (Iowa 2023). And

erroneous jury instructions become the law of the case, whether they are right or

wrong.1 See Brown, 996 N.W.2d at 696.

Orr argues that because the court left out the element of movement in the

going armed with intent marshaling instruction, Iowa Code section 701.9 requires

1 Neither party questions whether “law of the case” doctrine applies in a sentencing

challenge.
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merger in the sentencing with intimidation with a dangerous weapon. He contends

that omitting the movement element results in all elements contained in going

armed with intent being included in the intimidation with a dangerous weapon

offense, making it a lesser included offense. Thus, Orr urges it was not possible

to commit the crime of going armed with intent and not commit intimidation with a

dangerous weapon. And the district court’s failure to merge a conviction as

required by Iowa law would result in an illegal and void sentence. See Iowa Code

§ 701.9; State v. Love, 858 N.W.2d 721, 723 (Iowa 2015).

Our supreme court recently summarized the law applicable to evaluating a

merged offense argument.

Under Iowa Code section 701.9, “[n]o person shall be convicted of a
public offense which is necessarily included in another public offense
of which the person is convicted.” This statute codifies the double
jeopardy protection against multiple punishments for the same
offense.
“The legislature defines the offenses and can provide for
multiple punishments for separate offenses that apply to the same
conduct.” If the legislature intended for there to be multiple
punishments, then the Double Jeopardy Clause is not violated,
section 701.9 is not applicable, and merger is not required. “[I]n
deciding whether a punishment is constitutionally permissible under
the Double Jeopardy Clause, we look to what punishment the
legislature intended to impose.”

Brown, 996 N.W.2d at 697 (alterations in original) (internal citations omitted).

The merger analysis is a two-step process. See State v. Bloom, 983

N.W.2d 44, 51 (Iowa 2022). First, the reviewing court must “decide whether the

crimes meet the legal elements test for lesser included offenses.” State v.

Halliburton, 539 N.W.2d 339, 344 (Iowa 1995). “To apply the legal elements test

for lesser included offenses, we compare the elements of the two offenses to

determine whether it is possible to commit the greater offense without also
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committing the lesser offense.” Id. Then we must “consider whether the legislature

intended multiple punishments for both crimes.” Id. If the legislature did intend

multiple punishments, merger is unnecessary. Id.

The marshaling instruction for intimidation with a dangerous weapon

required the State to prove:

1. On or about the 29th day of April, 2022, the defendant
discharged a dangerous weapon, to wit, a loaded firearm in or into
the Logan Avenue convenience store which was occupied by Derrick
Tatum.
2. The firearm was a dangerous weapon as explained in
Instruction No. 20.
3. Derrick Tatum actually experienced fear and serious injury
and his fear was reasonable under the circumstances.
4. The defendant shot the firearm with the specific intent, as
explained in Instruction No. 15, to injure or cause fear or anger in
Derrick Tatum.

The instruction for going armed with intent required:

1. On or about the 20th day of April, 2022, the defendant was
armed with a dangerous weapon—a loaded firearm.
2. The defendant was armed with the specific intent, as
explained in Instruction No. 15, to use the weapon against another
person.

Based on these two instructions, Orr argues:

In looking at element one, discharging a dangerous weapon
would necessitate possessing a loaded firearm. Shooting the
weapon with the specific intent to injure or cause fear in Derrick
Tatum would again necessitate using the firearm against Derrick
Tatum. As written, it is impossible to commit the one and not the
other. The two sentences must merge.

The State responds that these marshaling instructions fail the legal

elements test. For there to be intimidation, Orr had to have “displayed a firearm in

a threatening manner while committing that crime,” which according to another

instruction “means to show or make the existence of a firearm apparent in a
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manner which intimidates the victim at the time of the crime.” For going armed

with intent, when a firearm is involved the “intent to use” element “requires proof

of an intent to shoot another person.” State v. Slayton, 417 N.W.2d 432, 434 (Iowa

1987). The fact that Orr possessed a firearm does not satisfy the different intent

requirements of each offense. Cf. State v. Taylor, 596 N.W.2d 55, 57 (Iowa 1999)

(finding offense of terrorism, later renamed intimidation with a dangerous weapon,

does not merge with going armed with intent, both because of the movement

element and independently because “[g]oing armed with intent includes . . . intent

to use a weapon without justification against another”).

Thus, we find that even with the marshaling instruction for going armed with

intent missing the movement element, the crimes of going armed with intent and

intimidation with a dangerous weapon do not meet the elements test for lesser

included offenses. So the district court did not need to merge the offenses for

sentencing.

III. CONCLUSION.

We conclude that sufficient evidence supports the jury verdicts; error was

not preserved to challenge the jury instruction and thus cannot be considered; and

it is possible to commit intimidation with a dangerous weapon without also

committing going armed with intent, so merger does not apply. We affirm the

convictions and sentences.

AFFIRMED.