State of Iowa v. Anthony Eugene English

IN THE COURT OF APPEALS OF IOWA

No. 21-0315
Filed August 3, 2022

STATE OF IOWA,
Plaintiff-Appellee,

vs.

ANTHONY EUGENE ENGLISH,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Story County, James C. Ellefson,

Judge.

Anthony English appeals his convictions and sentences for first-degree

murder and first-degree robbery. AFFIRMED.

Kent A. Simmons, Bettendorf, for appellant.

Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney

General, for appellee.

Heard by May, P.J., and Greer and Chicchelly, JJ.
2

MAY, Presiding Judge.

Someone robbed and murdered Xavier Shepley. The State charged

Anthony English. A jury found English guilty of first-degree murder and first-degree

robbery. English appeals his convictions and sentences. We affirm.

I. Background Facts & Proceedings

Xavier Shepley lived in an apartment in Ames with two roommates. One

night, Shepley told his roommates that he planned to have a woman over. Shepley

had been chatting with the woman on Snapchat for about a week. In the early

morning hours of November 18, 2017, the woman arrived at Shepley’s apartment.

Shepley’s brother and one of his roommates were awake when the woman arrived.

The group sat around chatting and drinking for a bit. At some point, the

woman said that her friend needed to charge her cell phone. The group agreed to

let her friend, Albrea Winfrey, come in. The group hung out, and it “was just a good

vibe.” While hanging out, Winfrey used her cell phone “almost the whole entire

time.” Then, Winfrey said she needed to make a phone call and left the apartment

through the front door. She left the door unlocked behind her.

About fifteen or twenty minutes later, two men wearing masks barged into

the apartment. One of the men held a gun and aimed it at Shepley. The man with

the gun told Shepley to “give us everything you have.” Meanwhile, the first woman

(the one Shepley had invited over) said to “do whatever they say and they won’t

hurt us”. Then she left the apartment.

The man with the gun told Shepley and his companions to go to the back

room of the apartment. They ended up seated in the back hallway of the

apartment. The gunman repeated his demand for “everything you have.” Shepley
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responded that he didn’t have anything. The gunman struck Shepley’s head with

the handgun. Reacting, Shepley reached out, apparently to grab the handgun.

For a brief moment, Shepley and the gunman wrestled for the handgun. A shot

rang out, and the two intruders fled the apartment. Shepley had been shot in the

shoulder, and he later died from his injuries. After Shepley was shot, his brother

ran after the intruders and saw a black Chevy Avalanche speeding off.

The next morning, English called Darren Coleman, an acquaintance of his

living in Atlanta, Georgia.1 English told Coleman that he wanted to “come down to

Atlanta.” When English arrived in Atlanta, he was with a woman, Jordan Bryant.

English and Bryant were driving a black Chevy Avalanche with Iowa license plates.

During English and Bryant’s stay in Atlanta, English told Coleman about the

circumstances leading to their visit. At trial, Coleman explained it this way:

[English] had been looking at a KCCI report, the news report, and
[English’s] girlfriend kind of started panicking and stuff; and when she
had seen the news report wasn’t about them, [Coleman] asked them
what had happened and he said that detective dropped off a card at
his mom’s house saying “call back.” And from there, he ended up
telling [Coleman] that he ended up robbing a dude in Ames and
accidentally killed him.

English and Bryant were in Atlanta for about three weeks. Just a few weeks later,

English and Bryant were taken into custody in Panama City, Florida.

English was charged with first-degree murder and first-degree robbery. A

jury found him guilty on both charges. English appeals.

1 Sometime after this, Coleman was convicted of unrelated federal crimes. He
testified against English pursuant to a proffer agreement with the federal
government.
4

II. Standards of Review

The standard of review for all issues in this case is for abuse of discretion.

See State v. Newell, 710 N.W.2d 6, 32 (Iowa 2006) (motion for mistrial); State v.

Buenaventura, 660 N.W.2d 38, 50 (Iowa 2003) (evidentiary rulings); State v.

Thacker, 862 N.W.2d 402, 405 (Iowa 2015) (sentencing).

III. Discussion

English raises three claims. First, he argues the district court abused its

discretion in denying his mistrial motions. Second, English contends the district

court improperly admitted certain evidence. And third, English claims the district

court abused its sentencing discretion. We address each claim in turn.

A. English’s Mistrial Motions

English moved for a mistrial during opening statements and then again

during the State’s case. The district court denied both motions. We consider each

motion separately.

i. Opening Statements2

Before trial, English moved in limine to prohibit the State from introducing

evidence of English’s “prior convictions, prior bad acts, prior uncharged crimes, or

suspicion of prior crimes or bad acts.” In a hearing on the motion, English

explained that he sought to exclude evidence that he and Bryant were arrested in

Florida on unrelated prostitution charges. The State then explained that it sought

to introduce evidence of the Florida arrest to explain how English was returned to

2 We question whether English intended to raise this issue on appeal. English
raises this claim in the preservation-of-error section of his brief and does not
discuss it in the merits portion. Nonetheless we address it to ensure all of English’s
preserved and presented claims are addressed.
5

Iowa—and to establish foundation for evidence seized in connection with the

arrest. But the State did not intend to offer evidence about the unrelated Florida

charges. The district court concluded that evidence of English’s contact with

Florida law enforcement—and Florida’s subsequent surrender of English to Iowa—

would be “in bounds.” But the court made clear that the State would not be allowed

to “talk about the Florida charges.”

During the State’s opening statements, the prosecutor mentioned the

Florida arrest, which led to an objection from English:

PROSECUTOR: Mr. English and Ms. Bryant were eventually
arrested in Panama City, Florida by the Panama City Police
Department. We have two officers we hope who will get here, but a
big hurricane’s happening down there which is throwing a little
wrench in our schedule; but we’re making every effort to get them
back up here. The hotel room in which they were arrested—
DEFENSE COUNSEL: Your Honor, I have an objection. I’d
like a motion to strike with “arrested.”

English explained that the usage of the word “arrested” implies a prior bad act in

violation of the pre-trial ruling, and English moved for a mistrial. The State argued

that “the fact of arrest is not a prior bad act.” The district court ultimately rejected

English’s motion.

We find no abuse of discretion in the court’s ruling. “[T]o show an abuse of

discretion by the district court in denying a motion for mistrial, the defendant must

show prejudice that prevented the defendant from having a fair trial.” State v.

Tewes, No. 20-0253, 2021 WL 1904693, at *5 (Iowa Ct. App. May 12, 2021) (citing

State v. Callender, 444 N.W.2d 768, 770 (Iowa Ct. App. 1989)). But we do not
6

think the prosecutor’s remarks even violated the court’s pre-trial ruling.3 The

pretrial ruling prevented the State from introducing evidence of “the Florida

charges.” But the State only discussed the fact that English and Bryant were taken

into custody in Florida—not that they were facing any particular charge, much less

Florida charges. Accordingly, we find the district court did not abuse its discretion

in denying English’s first mistrial motion. We turn to the second motion.

ii. Holloway Testimony

Desirae Holloway is the cousin of one of English’s co-defendants. Holloway

and English had a “friends with benefits” relationship. She also purchased the

handgun connected to Shepley’s murder. At trial, Holloway testified about her

relationship with English and her connection to this crime. Two portions of her

testimony are relevant to this appeal. First, the State questioned Holloway

regarding her knowledge of English’s whereabouts at different points before trial:

Q. When you spoke to the police about your gun in this case
in April of ’18, where was Mr. English at that time? A. I have no clue.
Q. Remember telling them that he was MIA, he was missing
in action? A. Yeah, because I hadn’t talked to him. I didn’t know
where he was.
Q. All right. You told them that he had been acting weird in
December of 2018?
DEFENSE COUNSEL: Objection, leading.
THE COURT: Under the circumstances here, I’m going to
allow leading questioning. Go ahead and answer.
A. I assumed he was acting weird because I knew that he had
a violation from running from the Fort.

3 English’s brief clarifies that on appeal “[t]he question here is not whether the judge
erred in ruling on the admissibility of the evidence. The question is whether the
[d]efendant was deprived of the chance to get a fair trial once the pretrial ruling
was violated.”
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(Emphasis added.) At this point, English objected and again moved for a mistrial

because “running from the Fort” referred to English’s prior escape from the Fort

Des Moines Correctional Facility, which led to additional Iowa charges for English.

Holloway had previously testified about “the Fort” when discussing why she

decided to purchase a firearm:

Q. Okay. And did you have a particular reason for wanting to
purchase a weapon? A. Well, yeah. I stayed by the Fort, which has
a lot of criminals, and I lived in an apartment building where a
neighbor had got stabbed to death by her sister like two weeks before
that.

Taken together, English argued, these bits of testimony improperly introduced prior

bad act evidence and required a mistrial. The district court denied the motion but

offered English a choice to issue a curative instruction to the jury to disregard

testimony about “the Fort.” English declined the district court’s offer so as not to

“draw more attention to the issue.”

On appeal, English argues the district court abused its discretion by not

granting a mistrial following Holloway’s testimony. Our ultimate question is

whether “the trial court was clearly unreasonable in concluding an impartial verdict

could be reached.” State v. Johnson, No. 19-0579, 2020 WL 5650731, at *2 (Iowa

Ct. App. Sept. 23, 2020) (quoting State v. Newell, 710 N.W.2d 6, 32 (Iowa 2006)).

For three reasons, we answer that question in the negative.

First, the isolated and abrupt nature of Holloway’s testimony mitigates the

risk of prejudice. See State v. Lopez-Aguilar, No. 17-0914, 2018 WL 3913672, at

*4 (Iowa Ct. App. Aug. 15, 2018). Besides the two instances cited, Holloway did

not testify further about “the Fort” and offered no other substantive details about

“the Fort.” She did not indicate English had received additional charges either,
8

only that he had a “violation.” And English concedes these comments were

“inadvertent and brief.” Considered against the backdrop of a six-day trial, we think

the district court properly concluded that English was not denied a fair trial with

impartial jurors. See Newell, 710 N.W.2d at 33.

Second, we believe the district court took proper steps to mitigate any risk

of prejudice from Holloway’s offhand comments. Although English declined an

immediate curative instruction following the remarks, the jury was instructed at the

conclusion of trial to refrain from considering other acts, charges, or crimes.

Cautionary instructions like these are typically sufficient to ameliorate prejudice in

all but the most extreme situations, and we presume the jury followed the

instructions. State v. Plain, 898 N.W.2d 801, 815 (Iowa 2017); State v. McMullin,

421 N.W.2d 517, 520 (Iowa 1988).

Finally, other evidence of English’s guilt limits any prejudicial effect of this

comment. Plain, 898 N.W.2d at 815 (“Because the State’s evidence on the

contested point was strong, the prejudicial effect of the challenged testimony is

minimal.”). For instance, Winfrey’s testimony supported the State’s theory of the

case—and cell phone records corroborated Winfrey. Physical evidence, like the

blood in Shepley’s apartment, also matched testimonial accounts from that night.

English and Bryant’s flight from Iowa permitted the jury to infer consciousness of

guilt. See State v. Bass, 349 N.W.2d 498, 502 (Iowa 1984) (“[A]n individual’s flight

from the scene of the crime is a circumstance from which a jury may find the

defendant departed because of his consciousness of guilt.”). Plus, Coleman

testified that English admitted to robbing and killing Shepley. This and other
9

substantial evidence of guilt reduces the risk that the jury improperly convicted

English based on Holloway’s off-hand comment.

Between the inadvertent and brief nature of Holloway’s remarks, the

cautionary instruction issued by the district court, and the substantial other

evidence of English’s guilt, we cannot say the district court was “clearly

unreasonable in concluding an impartial verdict could be reached.” Johnson, 2020

WL 5650731, at *2 (quoting Newell, 710 N.W.2d at 32). So we affirm the district

court’s mistrial rulings.

B. Exhibit 66—The Jailhouse Note

Next, we turn to English’s evidentiary challenge to a jailhouse note admitted

during Winfrey’s testimony.

Winfrey was charged as a co-defendant in this case, but she took a plea

deal. Part of her plea agreement required Winfrey to testify truthfully against

English. During Winfrey’s testimony, the State introduced a note that Winfrey

claimed she obtained while in jail. This note—exhibit 66—encouraged Winfrey not

to testify against anyone and to hold out for a good plea deal. Winfrey’s testimony

implied that the note was authored by English and then passed through other

inmates to Winfrey. The note was admitted over English’s foundation objection.4

Here is its full text:

A. They cant do shit to you they only using these charges as leverage
to get you to tell some shit. The only way they can convict you of
murder at trial is if they can first find you guilty of robbery. But in
order to find you guilty of robbery you would’ve for one had to been

4 As the State questioned Winfrey to establish foundation for the exhibit, the
prosecutor asked Winfrey who another person said the note was from. English
raised a hearsay objection, which was sustained. However, English never raised
a hearsay objection as to the contents of the note.
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in the house which according to the paperwork you weren’t in there
during the time all this took place and second you would’ve have to
of threatened some one which nobody says you did. Don’t let these
people scare you no matter what they have to give you a good ass
plea. You don’t have to tell on nobody to get it. You know they don’t
have shit anyway they think me and bro was there [a]nd we don’t
look shit like the lil bro’s. But just let them think it was us and we all
goin home. Just stay solid and don fold there ain’t shit they can do.
[A]Nd they can’t say aiding and abetting shit is bullshit to they first of
all only have that your phone contacted another phone that was close
by but they can’t prove who it is or what it’s about obviously or they
wouldn’t of called this a robbery plot and they wouldn’t think that me
[a]nd bro was there. It says in the lawbook 703 aiding and abetting
that one persons guilt doesn’t determine another persons guilt.
Meaning they have to punish you for your involvement which you
don’t have. So be confident at going to tr[ia]l or taking a plea that
you want because they dont want to take you to trial. Don’t work wit
these ppl and dont talk to nobody bout your case. Love tho sis hold
your head flush this when finished.

English claims the note should not have been admitted because of its

dubious origins.5 We disagree. The foundational bar is low. State v. Goodwin,

No. 18-1822, 2020 WL 1551149, at *4 (Iowa Ct. App. Apr. 1, 2020) (“[A] ‘district

court’s role is to serve as gatekeeper in assessing whether the proponent has

offered a satisfactory foundation from which a jury could reasonably find that the

evidence is authentic.’” (emphasis added) (quoting United States v. Hassan, 742

N.W.2d 104, 133 (4th Cir. 2014))). The authentication component of foundation

“is satisfied if sufficient proof has been introduced so that a reasonable juror could

find in favor of authenticity or identification.” United States v. Vayner, 769 F.3d

125, 129–30 (2nd Cir. 2014) (citation omitted). Put another way, laying foundation

does not require an explanation of all the circumstances surrounding a piece of

5The State’s brief contests error preservation. However, at oral argument, the
State agreed it would be “cleaner” to address the merits of English’s argument.
But to the extent English argues the note in inadmissible because it contains
hearsay, his argument is not preserved for our review.
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evidence. Cf. State v. Knight, 853 N.W.2d 273, 279 (Iowa Ct. App. 2014) (noting

the State is not required to provide absolute certainty that evidence is not tampered

with or substituted). Instead, a proponent must merely provide sufficient

information that could allow a jury to determine the evidence is what the proponent

claims. See Iowa R. Evid. 5.901(a).

Here, Winfrey testified she received the note from someone named Alicia

who shared her “pod” while in jail. She noted that Alicia’s boyfriend and English

were also in the same jail. And at one point, Alicia, Alicia’s boyfriend, and English

were all in the visitation room together, presumably when the note could have been

passed from English to Alicia through the boyfriend. So, Winfrey explained, she

thought she knew who wrote the note, insinuating it was from English. Plus, as

the State emphasizes, the contents of the note strongly suggest that its author was

charged in the robbery-turned-killing, as English was. All of this, taken together,

was enough to establish foundation.

We understand English would have preferred the State call both Alicia and

her boyfriend to testify about their roles in passing the note from person to person.

But the State’s process is not inherently deficient simply because it occurred in a

contracted manner. And, of course, English was free to argue—and did so in

closing—that the jury should not believe Winfrey’s testimony about the note’s

origins.6 See Knight, 853 N.W.2d at 279 (“When the district court finds the State

6Moreover, any error in admitting the note was harmless. The note was a small
portion of the evidence facing English. And as the State points out, because the
evidentiary weight of the note is entirely dependent on the jury’s assessment of
Winfrey’s credibility, any prejudice is substantially mitigated: If the jury believed
Winfrey’s account of the note, they likely already believed her account of English’s
12

has established a sufficient foundation for admitting the physical evidence, ‘any

speculation to the contrary affects the weight and not the admissibility of the

evidence.’” (citation omitted)).

We conclude the district court did not abuse its discretion in admitting the

note.

C. Sentencing

Finally, English argues the district court abused its discretion by ordering

his sentences for first-degree murder and first-degree robbery to run consecutively

to any existing sentence.

English contends the district court misapplied a statutory presumption for

consecutive sentences for probation violators because English was not on

probation when he committed the crimes in this case. But as the State points out,

despite the district court’s misunderstanding of English’s probation status, the

correct sentence was imposed because the court was still required to order the

murder and robbery sentences run consecutive to English’s existing sentence.

Iowa Code section 901.8 (2021) provides in part: “If a person is sentenced for

escape under section 719.4 or for a crime committed while confined in a detention

facility or penal institution, the sentencing judge shall order the sentence to begin

at the expiration of any existing sentence.” (Emphasis added.) Section 901.8

applies here: Three months before this crime, English was released to Fort Des

Moines Correctional Facility for work release. Just over a month later, he escaped.

So the murder and robbery occurred when English was on escape from work

involvement in the crime and his decisions afterwards. So by that point, the note
would have little impact on the outcome of the case.
13

release. And our cases have repeatedly held work release is a form of

confinement. State v. Jackson, No. 19-0204, 2020 WL 4814073, at *1 (Iowa Ct.

App. Aug. 19, 2020) (collecting cases).7 English’s escape does not affect that

status. See Knipe, 349 N.W.2d at 772. So English was legally committed to

confinement at the time he perpetrated the crimes in the instant case.

Consequently, the district court had no discretion in running English’s sentences

consecutively or concurrently to his existing sentence: Iowa Code section 901.8

required the sentences run after “the expiration of any existing sentence.”

7 We have considered English’s argument that, because he had been granted work
release, he was not an “inmate” but rather a mere “resident” of Fort Des Moines
Correctional Facility. And because he was “release[d]” on work release, English
contends, he was in the same position as a parolee; so, under State v. Finchum
he was no longer committed for purposes of section 901.8. See 364 N.W.2d 222,
225 (Iowa 1985) (agreeing that, because a “parolee is released from commitment,
he is no longer committed and therefore does not fall within the purview of 901.8”).
As noted above, however, this court has regularly concluded that work
release counts as commitment. Jackson, 2020 WL 4814073, at *1 (collecting
cases). And while those cases have not been published, we still hesitate to
“disregard” them, in part because we must uphold the “basic principle of the rule
of law” that “courts ‘treat like cases alike.’” State v. Shackford, 952 N.W.2d 141,
149–50 (Iowa 2020) (McDonald, J., dissenting) (quoting June Med. Servs. L.L.C.
v. Russo, 140 S. Ct. 2103, 2134 (2020) (Roberts, C.J., concurring)). Moreover—
and contrary to English’s theory—the Iowa Code says that “inmates” granted work
release are still “inmates sentenced to an institution under the jurisdiction of the
department” of corrections even though they enjoy a limited “privilege of leaving
actual confinement during necessary and reasonable hours” for employment-
related activity. Iowa Code § 904.901(emphasis added). So English’s position
was similar to that of the defendant in State v. Knipe, who committed a crime while
enjoying a furlough—“the privilege of authorized permission to leave the
institution.” See 349 N.W.2d 770, 772 (Iowa 1984). And we note the Knipe court
found that crime-on-furlough is nonetheless “crime committed while confined in a
detention facility or penal institution” for purposes of section 901.8. Id. We think
the same applies here.
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So, although the district court was mistaken in how it reached this portion

of English’s sentence, after applying the correct law, the end result is ultimately the

same. Therefore, as to this issue, we see no grounds for reversal.

Finally, to the extent English also argues the district court failed to provide

adequate reasoning for running the murder and robbery sentences consecutively

to each other, we disagree. Iowa Rule of Criminal Procedure 2.23(3)(d) requires

the district court to “state on the record its reason for selecting the particular

sentence.” Rule 2.23(3)(d) applies to the district court’s decision to impose

consecutive sentences. State v. Jacobs, 607 N.W.2d 679, 690 (Iowa 2000). So

the district court was required to provide some justification; but that justification

may be “terse and succinct.” See State v. Thacker, 862 N.W.2d 402, 408 (Iowa

2015) (citation omitted). Here, the court explained it selected consecutive

sentences “due to [English’s] character and propensities as demonstrated by his

lengthy criminal record as an adult.” And the court further explained: “The

sentences are run consecutive to each other for the additional reason that the

rehabilitation of [English] appears unlikely and that the extended sentence is

necessary for the protection of the community.” This was sufficient to explain the

imposition of consecutive sentences.

IV. Conclusion

Because English has shown no abuse of discretion, we must affirm.

AFFIRMED.