State of Iowa v. Dimaryn Raishawn Ware

IN THE COURT OF APPEALS OF IOWA

No. 24-0489
Filed August 20, 2025

STATE OF IOWA,
Plaintiff-Appellee,

vs.

DIMARYN RAISHAWN WARE,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Jeanie Vaudt, Judge.

Dimaryn Ware appeals his convictions and sentence for six offenses.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

Karmen Anderson, Des Moines, for appellant.

Brenna Bird, Attorney General, and Nicholas E. Siefert, Assistant Attorney

General, for appellee.

Considered by Greer, P.J., Sandy, J., and Bower, S.J.*

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

(2025).
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BOWER, Senior Judge.

Dimaryn Ware appeals his convictions and sentence for three counts of

assault with intent to inflict serious injury and one count each of intimidation with a

dangerous weapon with the intent to injure or provoke fear, willful injury causing

bodily injury, and felon in possession of a firearm. Ware challenges the sufficiency

of the evidence on all counts, claiming the State failed to prove his participation in

the shooting. He also argues the court should have merged the willful injury

causing bodily injury and assault with intent to inflict serious injury convictions

relating to the shooting of M.M.-R. Upon our review, we affirm in part, reverse in

part, and remand to the district court with instructions.

I. Background Facts and Proceedings

On November 26, 2022, a dispute between two couples led to a

confrontation on a Des Moines street, during which Ware and Raemon Close fired

handguns at Javier Rodriguez’s house while Rodriguez and his mother and sister

stood outside.

The State charged Ware with three counts of attempted murder (Counts I,

II, and III), intimidation with a dangerous weapon with the intent to injure or provoke

fear (Count IV), willful injury causing bodily injury (Count V), and felon in

possession of a firearm (Count VI).1 The case proceeded to trial. Ware did not

testify. The jury found Ware guilty of the lesser-included offense of assault with

intent to inflict serious injury on the first three counts and guilty as charged on the

1 The State filed additional charges which it dismissed before trial.
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remaining counts. The district court entered judgment and sentence, and Ware

appeals.

II. Sufficiency of the Evidence

Ware claims the State presented insufficient evidence to support his

convictions. We review challenges to the sufficiency of the evidence supporting a

conviction for correction of errors at law. State v. Crawford, 974 N.W.2d 510, 516

(Iowa 2022). We are bound by the jury’s verdict if it is supported by substantial

evidence. Id. Evidence is substantial if it is sufficient to convince a reasonable

juror that the defendant is guilty beyond a reasonable doubt. Id. To assess

whether the jury’s verdict is supported by substantial evidence, we view the

evidence in the light most favorable to the State, including all “legitimate inferences

and presumptions that may fairly and reasonably be deduced from the record

evidence.” Id.

To convict Ware of assault with intent to inflict serious injury (Counts I, II,

and III), the jury was instructed the State had to prove:

1. On or about November 26, 2022, Defendant or someone
he aided and abetted did an act which was intended to cause pain
or injury to M.M.-R. and/or, result in physical contact which was
insulting or offensive to M.M.-R., or place M.M.-R. in fear of an
immediate physical contact which would have been painful, injurious,
or offensive to M.M.-R.
2. Defendant or someone he aided and abetted had the
apparent ability to do the act.
3. Defendant’s act or the act of someone he aided and abetted
was done with the specific intent to cause a serious injury to M.M.-R.

To convict Ware of intimidation with a dangerous weapon with the intent to

injure or provoke fear (Count IV), the jury was instructed the State had to prove:
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1. On or about November 26, 2022, Defendant or someone
he aided and abetted shot firearms at M.M.-R., J.R.-G, or J.R. (a
minor.
2. A firearm is a dangerous weapon . . . .
3. M.M.-R., J.R.-G, or J.R. (a minor) actually experienced fear
of serious injury and their fear was reasonable under the existing
circumstances.
4. Defendant or someone he aided and abetted shot the
dangerous weapon with the specific intent to injure or cause fear or
anger in M.M.-R., J.R.-G, or J.R. (a minor).

To convict Ware of willful injury causing bodily injury (Count V), the jury was

instructed the State had to prove:

1. On or about November 26, 2022, Defendant or someone
he aided and abetted shot firearms at M.M.-R.
2. Defendant or someone he aided and abetted specifically
intended to cause a serious injury to M.M.-R. or anyone near M.M.-R.
3. Defendant’s act or the act of someone he aided and abetted
caused a bodily injury to M.M.-R. . . .

To convict Ware of felon in possession of a firearm (Count VI), the jury was

instructed the State had to prove:

1. On or about November 26, 2022, Defendant knowingly
possessed, transported, caused to be transported, or had under his
dominion and control a firearm.
2. Defendant was previously convicted of a felony.

Ware contests only the identity element of each crime, claiming the

evidence was insufficient to prove he was the second shooter during the incident.

Based on the evidence presented at trial, reasonable jurors could have found the

following facts.

On November 26, Javier Rodriguez and his children’s mother were upset to

learn Roeman Close’s girlfriend, Solmari, had called the Iowa Department of

Health and Human Services with allegations about their children. Rodriguez called

Solmari to confront her about the allegations, and an argument ensued between
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them. Close later followed up with Rodriguez on FaceTime and displayed a gun.

Rodriguez told Close to “put that down” and “[c]ome to fight . . . like a man.” But

Close “kept waving” the gun and told Rodriguez “they’re on the way.”

A little while later, Solmari was driving around with her sister, Angelica.

They picked up Close, who asked them “to take him to his friend’s house.” Close

directed them to a street a few houses down from Rodriguez’s. Angelica parked

the car, and Close told them to “hold on” while he got in contact with his friend.

One minute later, the friend, Ware, pulled up in another car and parked alongside

Angelica. Ware and Angelica had dated “[o]ff and on for six years,” so she was

“familiar with him.”

Close exited Angelica’s car and began walking toward Rodriguez’s house.

Ware followed the same direction in his car. Rodriguez exited his house and

walked toward them. Close displayed a gun, but Rodriguez said, “Put that shit

away. Let’s fight.” Instead, Close retreated on foot, Ware turned his car around,

and the two headed back toward where Angelica’s car was parked. Ware then

exited his car, leaving it parked in the middle of the road next to Angelica’s. Ware

began shooting a handgun toward Rodriguez’s house. Close joined in, shooting

the same direction. While still shooting, Ware and Close then hurried to the back

passenger side of Angelica’s car and jumped in as Angelica started to drive away.

“[E]veryone was shouting, ‘Go.’” Meanwhile, as the shooting was happening, the

front-seat passenger of Ware’s car exited, crossed in front of the car, reentered to

the driver’s seat, and drove Ware’s car away in the opposite direction.

A neighbor’s security camera recorded the interaction. Although Angelica

“wasn’t really paying attention” when Close got out of the car and walked toward
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Rodriguez’s house, she identified Ware as the person in black clothing who was

also outside the vehicles with Close.2 On the security video, Ware can be seen in

a shooting stance with his arm outstretched and pointing toward Rodriguez’s

house.

Police responded to Rodriguez’s house. Along with Rodriguez, his mother,

M.M.-R., and a child, J.R., were also outside the home during the shooting.

M.M.-R. had been shot and “had a graze wound to the right upper arm.” M.M.-R.

recalled she thought she “was going to lose everyone” “because they were not

stopping.” Although Rodriguez was initially uncooperative with police, he later

identified the two men as Close and Ware.

Detectives investigated the scene and opined the shell casings found in the

street were fired from two different guns. The placement of the two sets of casings

were “consistent with the positioning” of Ware and Close, as depicted on the video,

during the shooting.

On appeal, Ware acknowledges “[t]he evidence reflect[s] that there were

two shooters.” He further agrees that “Close was positively identified as one of the

shooters.” But he claims the evidence is insufficient to establish he was the other

shooter. Specifically, Ware claims “[t]here was no physical evidence tying [him] to

the crime.” But even if the security video evidence is not considered “direct proof”

of Ware’s involvement, the State “presented solid circumstantial evidence that

[Ware] was the shooter.” State v. Moore, No. 22-1794, 2024 WL 3292539, at *3

(Iowa Ct. App. July 3, 2024).

2 Solmari also exited the car.
It is clear from the video Solmari was not a shooter,
nor does Ware suggest she was.
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Ware also discredits Rodriguez’s identification of him as the second

shooter, pointing to the following testimony from Rodriguez:

[Ware] was putting [a ski mask] on halfway when he was in the Jeep.
So when they pulled up right in front of me, that’s when I kind of saw
him, but I wasn’t sure who it was. But then pretty much Ines—and
Ines is my girl’s sister’s girlfriend, and she knows the friend of him
and [Close] very close.

However, inconsistency in witness testimony is “for the jury’s consideration,

and do[es] not justify a court’s usurpation of the factfinding function of the jury.”

State v. Williams, 695 N.W.2d 23, 28 (Iowa 2005). Moreover, Ware ignores the

fact he was identified by Angelica as the other shooter. And the jury was able to

review the security video from the incident, which corroborated Angelica’s

testimony. “[Q]uestions about weight and credibility of the evidence are for the jury

to decide.” State v. Davis, No. 23-1783, 2024 WL 4966034, at *2 (Iowa Ct. App.

Dec. 4, 2024). Indeed, the jury was instructed:

Decide the facts from the evidence. Consider the evidence
using your observations, common sense, and experience. Try to
reconcile any conflicts in the evidence; but if you cannot, accept the
evidence you find more believable.
In determining the facts, you may have to decide what
testimony you believe. You may believe all, part or none of any
witness’s testimony.

Although Ware maintains “any facts potentially pointing to [him] as the

shooter were less than credible and were based on hearsay within hearsay,” that

conclusion was for the jury to make. See State v. Thomas, 847 N.W.2d 438, 442

(Iowa 2014) (“Inherent in our standard of review of jury verdicts in criminal cases

is the recognition that the jury is free to reject certain evidence, and credit other

evidence.” (cleaned up)). The jury weighed the evidence and determined Ware

was the other shooter. Substantial evidence supports the jury’s findings.
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III. Merger

Ware next argues the sentencing court should have merged his convictions

for willful injury causing bodily injury (Count II) and assault with intent to inflict

serious injury (Count V) relating to the shooting of M.M.-R. Convictions merge

when “a public offense . . . is necessarily included in another public offense of

which the person is convicted.” Iowa Code § 701.9 (2023). “This statute prevents

a person from being twice convicted for the same offense, but it does not apply

when there are separate offenses.” State v. Greenland, 17 N.W.3d 347, 351 (Iowa

2025). The question is whether it is possible to commit the greater offense without

also committing the lesser. State v. Goodson, 958 N.W.2d 791, 803 (Iowa 2021).

“We review the failure to merge convictions required by statute for correction of

errors at law.” Id. at 798.

The marshaling instructions for the relevant offenses are set forth above.

To refresh, for assault with intent to inflict serious injury in Count II, the State had

to prove Ware or someone he aided and abetted: “did an act which was intended

to cause pain or injury to M.M.-R. and/or, result in physical contact which was

insulting or offensive to M.M.-R., or place M.M.-R. in fear of an immediate physical

contact which would have been painful, injurious, or offensive to M.M.-R.”; with

“the apparent ability to do the act”; and “with the specific intent to cause a serious

injury to M.M.-R.” For willful injury causing bodily injury in Count V, the State had

to prove Ware or someone he aided and abetted: “shot firearms at M.M.-R.”;

“specifically intended to cause a serious injury to M.M.-R. or anyone near M.M.-R.”;

and “caused a bodily injury to M.M.-R.”
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According to Ware, he “could not commit willful injury causing serious injury

to [M.M.-R.] without also committing assault with intent to commit serious injury on

her as well.” Specifically, he claims “[b]oth offenses required an assault, with willful

injury requiring a more specific assault of use of a firearm” and “[b]oth offenses

required the intent to cause serious injury, with willful injury requiring an actual

bodily injury.” Ware further argues the shooting took place for “only nine seconds,”

which “does not support a break in the action to constitute a separate assault from

the willful injury.”

The State seems to agree there was no break in the action to support

multiple assaults by Ware, as a principal, arising from the shooting. See, e.g.,

State v. Velez, 829 N.W.2d 572, 582–83 (Iowa 2013) (noting “[w]e have previously

used a break-in-the-action test to determine if separate acts have been

committed”); State v. Ross, 845 N.W.2d 692, 706 (Iowa 2014) (observing a series

of gunshots by one shooter, even with a pause, as one act). The State maintains,

however, “the convictions need not merge because they are supported by separate

conduct”—namely, Ware’s conduct as a shooter for one offense and as an aider

and abettor for the other offense.

“There is no question that as a general proposition, the crime of willful injury

cannot be completed without also completing the crime of assault with intent.”

State v. Love, 858 N.W.2d 721, 725 (Iowa 2015). Under the instructions, the jury

was to determine whether “[Ware] directly committed the crime, or knowingly

‘aided and abetted’ other person(s) in the commission of the crime” for both assault

with intent to inflict serious injury and willful injury causing bodily injury. Accord

Iowa Code § 703.1 (“All persons concerned in the commission of a public offense,
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whether they directly commit the act constituting the offense or aid and abet its

commission, shall be charged, tried and punished as principals.”). In other words,

there is no difference between Ware’s liability as a principal or as an aider or

abettor, see State v. Black, 282 N.W.2d 733, 735 (Iowa 1979), and if the evidence

was sufficient to show Ware took part in the shooting, it did not matter if he fired

the shot which caused M.M.-R.’s bodily injury, see State v. Shorter, 893 N.W.2d

65, 71 (Iowa 2017).

In this case, “the jury was never asked to do the fact-finding necessary to

support two separate assaults.” Love, 858 N.W.2d at 725; see also State v.

Hickman, 623 N.W.2d 847, 851 (Iowa 2001) (“If the greater offense is defined

alternatively and the State charges both alternatives, the test for included offenses

must be applied to each alternative.”). And because we do not know—based on

the jury instructions provided here and the jury’s general verdict—whether the jury

determined one offense related to Ware’s conduct as an aider and abettor and the

other offense related to Ware’s conduct as a principal, merger is our only option.

But see State v. Canady, 4 N.W.3d 661, 674 (Iowa 2024) (concluding offenses did

not merge because the jury was instructed “the voluntary manslaughter count

involved the defendant’s alleged aiding and abetting of another person’s shooting

of the victim, and the willful injury count involved the defendant’s own alleged

beating of the victim”). “[W]hen alternatives are present and one alternative

requires merger, merger is required if it is impossible to determine which
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alternative the jury used.”3 Greenland, 17 N.W.3d at 352 (quoting Goodson, 958

N.W.2d at 804).

After comparing the marshaling instructions and statutory elements of

assault with intent to inflict serious injury and willful injury causing bodily injury, we

conclude the sentences on the offenses should merge.4 “The judgment and

sentence imposed upon [Ware] for assault with intent is unlawful and must be

vacated. The conviction related to willful injury, however, is valid and remains

undisturbed.” Love, 858 N.W.2d at 725 (internal citation omitted); see also id.

at 726 (Mansfield, J., concurring specially) (“When the instructions permit the jury

to convict the defendant twice of the same offense (or of an offense and a lesser

included offense) based on the same conduct, and two guilty verdicts are returned,

3 The State argues the offenses should not merge “[b]ecause Ware’s convictions

on Counts II and V are supported by evidence of separate assaults, committed by
separate people, [and] separate punishments are lawful.” However, because we
have found there was no break in the action and we do not know which alternative
the jury used, merger is required.
4 The State argues if we agree Ware’s claim is actually “a challenge to whether the

two verdicts were adequately supported by separate conduct proven at trial,” rather
than an illegal-sentence claim, “then Ware did not preserve error.” Our courts have
“recognized ‘conflicting case law’ on the question whether unit-of-prosecution
challenges strike at the substance of the conviction or the legality of a sentence.”
State v. Baker, No. 15-1230, 2016 WL 4384659, at *2 (Iowa Ct. App. Aug. 17,
2016) (citing cases).
Of course, even if the defendant failed to object to the
instructions and verdict forms, he or she could later argue that
merger of the convictions was required, because the error
preservation rule does not apply to a defendant’s statutory claim of
an illegal sentence. But in that event, merger would not occur so
long as substantial evidence supported a determination that two
separate criminal acts had occurred.
Love, 858 N.W.2d at 728 (Mansfield, J., specially concurring). Here, the State
concedes the evidence does not support a finding of two assaults. Under these
circumstances, merger is appropriate.
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merger must follow.”). We remand to the district court for resentencing on Ware’s

remaining convictions.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.