State of Iowa v. Wour Nathanial Magang

IN THE COURT OF APPEALS OF IOWA

No. 21-1535
Filed February 8, 2023

STATE OF IOWA,
Plaintiff-Appellee,

vs.

WOUR NATHANIAL MAGANG,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, David M. Porter, Judge.

A defendant appeals his convictions and sentences. AFFIRMED.

Martha J. Lucey, State Appellate Defender, and Rachel C. Regenold,

Assistant Appellate Defender, for appellant.

Brenna Bird, Attorney General, and Martha E. Trout, Assistant Attorney

General, for appellee.

Considered by Tabor, P.J., and Schumacher and Chicchelly, JJ.
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SCHUMACHER, Judge.

Wour Magang appeals his convictions and sentences for second-degree

robbery and first-degree burglary. Magang contends the court wrongly admitted

footage from a police officer’s body camera. He claims his convictions are not

supported by sufficient evidence and claims the district court utilized the wrong

standard when considering his motion for a new trial. He also claims the court

abused its discretion during sentencing. We find the court properly admitted the

officer’s body camera footage. Sufficient evidence supports Magang’s convictions.

The district court did not use the wrong standard when deciding Magang’s motion

for a new trial. And the court did not abuse its discretion in sentencing.

Accordingly, we affirm.

I. Background Facts & Proceedings

The events underpinning Magang’s convictions occurred in the early

morning hours of August 25, 2019. Around 2:55 a.m., Janet Leon called 911 to

report a burglary. She reported that as she opened the door to let her friend leave,

two men entered her home with guns. They stole her safe, which contained money

and credit cards, then ran away through the parking lot. She reported that she was

“bleeding like crazy” because her “head’s fucking gashed in.”

Police responded to the scene about six minutes after Leon called 911.

Upon arriving, Officer Jordan Ulin found Leon bloodied and wandering around

outside her apartment. Ulin’s body camera showed Leon mumbling and calling for

her cat, which escaped during the burglary. Without prompting, Leon showed the

officer where the safe used to be located. She reported both men had guns and

provided physical descriptions of the men. Officer Ulin testified that the wounds to
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Leon’s head were consistent with being struck by a firearm, which he referred to

as “pistol-whipping.”

While Officer Ulin stayed with Leon, Officer Ryan Neumann canvased the

area. He encountered two individuals in the apartment’s parking lot who advised

him that a “large black man with dreads” had run through the lot shortly before the

officer’s arrival, matching the previous description provided by Leon. He followed

the path they directed him on, eventually encountering a woman sitting in a vehicle.

She informed Officer Neumann that she had seen multiple males running away,

carrying something large.

Officer Dustin Wing and K-9 Bingo picked up a scent around Leon’s

apartment and followed it to another apartment building about a block-and-a-half

away. The path Bingo took was similar to the one described by witnesses as to

the direction where one or more men had fled. Bingo alerted at the front of unit 6

of the apartment building. A man emerged from the apartment, said, “Oh shit,”

and quickly shut the door. Officer Wing was able to see multiple men and one

female inside the apartment. One of the men was large, shirtless, and had a

hairstyle similar to the one described by previous witnesses. Officer Wing testified

the man’s appearance was consistent with that of Magang. Several of the

apartment’s occupants demanded a police supervisor be present.

Officer Neumann moved toward a main road to flag down his supervisor.

While doing so, he noticed Magang moving through a tree line area. Magang fit

the description provided by witnesses. Magang informed Neumann that he was

urinating in this area because he was drunk. He reported he was staying at his

girlfriend’s home in the area, although he could not provide an address. Neumann
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searched Magang, finding about $260 in cash as well as multiple credit cards. Two

of the cards belonged to Leon. Magang was arrested.

The State charged Magang with first-degree robbery and first-degree

burglary. Trial was held August 2 and 3, 2021. Leon did not testify, citing the

trauma further involvement in the case would cause her. The jury found Magang

guilty of second-degree robbery, in violation of Iowa Code section 711.3 (2019),

and first-degree burglary, in violation of section 713.3.

Magang filed a motion for a new trial. Magang’s motion for new trial claimed

the verdict was contrary to the law or evidence. The motion for a new trial also

claimed the jury was tainted. He also filed a motion in arrest of judgment, asserting

the same claims as his motion for a new trial. The court denied both motions.

Magang was sentenced to ten years in prison for the robbery conviction and

twenty-five years in prison for the burglary conviction. The district court ordered

the burglary and robbery sentences to run consecutively. Magang appeals.

II. Discussion

Magang contests the admissibility of Officer Ulin’s body camera footage.

He also claims evidence was insufficient to support either of his convictions. He

claims the court used the wrong standard when considering his motion for new

trial. And he contends the court abused its discretion during sentencing.

A. Bodycam Footage

Magang challenges the admissibility of Officer Ulin’s body camera footage.

He asserts Leon’s statements were inadmissible hearsay. He also claims the

footage is unduly prejudicial. The district court found Leon’s statements in Officer

Ulin’s body camera footage were admissible pursuant to the excited utterance
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exception to the hearsay rule. The admissibility of evidence is generally reviewed

for an abuse of discretion. State v. Dessinger, 958 N.W.2d 590, 597 (Iowa 2021).

“We review hearsay claims, however, for corrections of errors at law. The

correction for errors at law standard is applicable in determining whether evidence

that would generally be prohibited as hearsay comes in under a hearsay

exception.” Id. (internal citation omitted).

1. Hearsay

Leon’s statements to Officer Ulin, including statements describing the

suspects and the fact that they stole her safe, are hearsay, meaning an out of court

assertion used to prove the truth of the matter asserted. See id. at 599; Iowa R.

Evid. 5.801(c). Thus, the admissibility of those statements turns on whether an

exception to hearsay applies. See Iowa R. Evid. 5.802. The district court cited the

excited utterance exception to hearsay when it found Leon’s statements

admissible. See id. 5.803(2). That exception permits a court to admit hearsay

statements “relating to a startling event or condition, made while the declarant was

under the stress of excitement [that it] caused.” Id. To determine the applicability

of the exception, we consider:

(1) the time lapse between the event and the statement, (2) the
extent to which questioning elicited the statements that otherwise
would not have been volunteered, (3) the age and condition of the
declarant, (4) the characteristics of the event being described, and
(5) the subject matter of the statement.

State v. Atwood, 602 N.W.2d 775, 782 (Iowa 1999).

Upon our review of the Atwood factors, we conclude Leon’s statements

were admissible as an excited utterance. First, Leon called 911 immediately after

the robbery. Six minutes later, Officer Ulin arrived and began his interaction with
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Leon—the recording of which is about ninety seconds. Relating events that

happened less than ten minutes ago supports the conclusion that Leon was still

acting under the stress of the robbery. See Dessinger, 958 N.W.2d at 601 (“While

time-lapse is important, statements made hours and even days after the event

have been admissible.”). Second, Leon’s statements were made without

prompting. See State v. Harper, 770 N.W.2d 316, 320 (Iowa 2009) (noting that

statements spontaneously given were more likely to fall under the excited

utterance exception). She made those statements after Ulin had directed her to

take a seat—a direction not likely to prompt a response involving details of the

crime.

We also highlight Leon’s condition while she was making her statements to

Ulin. Leon had observable wounds to her head. As visible on the body camera

footage, she was dazed and somewhat confused, repeatedly calling out and

searching for her missing cat rather than addressing Ulin directly. She struggled

to form words or follow Ulin’s instructions. It is evident she was still reeling from

the robbery. Leon was under the stress of the event, and her challenged

statements were admissible under the excited utterance exception to the hearsay

rule.

2. Relevance

Magang also claims the video was more prejudicial than probative. In

particular, Magang contends the video is likely to inflame the jury’s passion by

exhibiting Leon’s wounds and confused mannerisms. He also asserts the video is

unnecessarily cumulative to other evidence, including photos of Leon’s injuries and

her 911 call.
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Evidence must be relevant to be admissible. See Iowa R. Evid. 5.402; see

also Iowa R. Evid. 5.401 (defining relevance). However, relevant evidence may

still be inadmissible. In particular, “The court may exclude relevant evidence if its

probative value is substantially outweighed by a danger of one or more of the

following: unfair prejudice, confusing the issues, misleading the jury, undue delay,

wasting time, or needlessly presenting cumulative evidence.” Iowa R. Evid. 5.403.

To determine whether evidence is inadmissible under rule 5.403, we utilize a two-

part test. State v. Neiderbach, 837 N.W.2d 180, 202 (Iowa 2013). “First, we

‘consider the probative value of the evidence.’ Second, we balance the probative

value ‘against the danger of its prejudicial or wrongful effect upon the triers of fact.’”

Id. (quoting State v. Huston, 825 N.W.2d 531, 537 (Iowa 2013)).

We conclude Ulin’s body camera footage was relevant. In particular, it

showed the physical effects of the assault on Leon, including bleeding from a head

wound. The camera also corroborates Leon’s statements in the 911 call, including

identifying that a safe was stolen and that “both”—indicating multiple—men were

armed during the burglary. That statement also corroborates other witnesses’

statements to police that indicated multiple men fled the scene while carrying

something large. The corroboration of Leon and the other witnesses’ statements

is particularly important given the fact that Leon never directly identified Magang

as a perpetrator.

Magang’s claim comes down to whether the footage was unduly prejudicial

or unnecessarily cumulative.

All “[r]elevant evidence is inherently prejudicial in the sense of being
detrimental to the opposing party’s case.” State v. Delaney, 526
N.W.2d 170, 175 (Iowa Ct. App. 1994). The relevant inquiry is not
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whether the evidence is prejudicial or inherently prejudicial but
whether the evidence is unfairly prejudicial. Unfairly prejudicial
means the “evidence has an undue tendency to suggest a decision
on an improper basis.” Id. The evidence here does not suggest a
decision on an improper basis.

State v. Thompson, 954 N.W.2d 402, 408 (Iowa 2021).

We conclude the video is not unfairly prejudicial. It is true that the video’s

contents are similar to other evidence, including Leon’s 911 calls and photographic

evidence of her injuries. But the video also offers unique evidence, including Leon

demonstrating where the safe was located, suggesting her claim’s credibility. It

corroborates her and other witnesses’ testimony suggesting multiple men with

weapons broke into her home and assaulted her. And the footage of her injuries,

seen mere minutes after the robbery, suggests a causal connection to the burglary

that photographs alone may not convey.

Finally, it is true the images of Leon injured and in distress may pull on the

jury’s emotions. But that alone does not render evidence inadmissible.

“[P]hotographs are not inadmissible simply because they are ‘gruesome or may

tend to create sympathy . . . if there is just reason for their admission.’” Neiderbach,

837 N.W.2d at 202 (second alteration in original) (citation omitted). As explained,

the video includes key details implicating Magang. The evidence was not unfairly

prejudicial.

B. Sufficiency of the Evidence

Magang challenges the sufficiency of the evidence for both of his

convictions. In particular, Magang points to the fact that Leon never affirmatively

identified Magang as the perpetrator, calling into question his identity as one of the

men in the robbery-burglary.
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“We review the sufficiency of the evidence for correction of errors at law.”

State v. Crawford, 972 N.W.2d 189, 202 (Iowa 2022) (citation omitted). Our review

is “highly deferential to the jury’s verdict.” Id.

The jury’s verdict binds this court if the verdict is supported by
substantial evidence. Substantial evidence is evidence sufficient to
convince a rational trier of fact the defendant is guilty beyond a
reasonable doubt. In determining 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. (internal citations omitted).

We find sufficient evidence supports Magang’s convictions. Leon told the

911 dispatcher and Officer Ulin that two men entered her apartment with guns and

stole her safe. Two witnesses in the parking lot observed a man matching

Magang’s description flee the scene. Another witness—who was in the direction

that the initial witnesses indicated the suspect was running toward—observed

multiple men carrying something large. Bingo tracked the suspect’s scent to the

apartment complex, where Officer Wing observed a man matching Magang’s

description.

Magang was found with two of Leon’s credit cards in his pocket within an

hour of the robbery. He was also only a block away from the crime scene. Upon

being searched, Magang claimed the contents of his pockets were his own,

exclaiming that he was “a working man.” Magang offered no explanation for having

Leon’s credit cards within such a short time frame of the robbery.

It is true that there was no physical evidence such as DNA or fingerprints

tying Magang to the crime scene. Nor was there an affirmative identification of
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Magang as a perpetrator by Leon. Because of that, Magang claims he was guilty

of nothing more than possession of stolen property. But the State is under no

obligation to present direct evidence of a suspect’s guilt. State v. Jones, 967

N.W.2d 336, 342 (Iowa 2021). “What the State is required to do is convince the

jury beyond a reasonable doubt of the defendant’s guilt. Direct and circumstantial

evidence are equally probative in that regard.” Id. The State presented

circumstantial evidence suggesting Magang was present during the robbery,

offered a chain of witnesses tracing his path from the crime scene to the apartment

complex where he was eventually found, and demonstrated Magang had

possession of the contents of Leon’s safe within an hour of the robbery. The jury

could reasonably conclude he was one of the perpetrators. The evidence was

sufficient.

C. Motion for New Trial

Magang claims the district court utilized the wrong standard when it ruled

on his motion for a new trial. Magang highlights that the district court concluded

there was “sufficient evidence” to convict the defendant. Magang contends the

court improperly used the sufficiency of the evidence standard rather than the

weight of the evidence standard. See State v. Ellis, 578 N.W.2d 655, 659 (Iowa

1998) (describing the difference between the two standards).

Under Iowa Rule of Criminal Procedure 2.24(2)(b)(6), a court has the

discretion to grant a new trial “[w]hen the verdict is contrary to law or evidence.”

Iowa R. Crim. P. 2.24(2)(b)(6). In Ellis, the Iowa Supreme Court distinguished

between the standard to be applied in evaluating motions for a judgment of

acquittal during trial—evidence sufficient that a rational jury could convict the
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defendant beyond a reasonable doubt—and the standard to be applied in

evaluating motions for a new trial—evidence that a greater amount of credible

evidence supports one side of an issue. 578 N.W.2d at 658. The Ellis standard

requires the trial court to examine issues of credibility in assessing whether a new

trial is appropriate on the ground that the verdict was contrary to the weight of the

evidence. Id.

Our supreme court has “caution[ed] trial courts to exercise this discretion

carefully and sparingly when deciding motions for new trial based on the ground

that the verdict of conviction is contrary to the weight of the evidence.” Id. at 659.

Except in the extraordinary case where the evidence in this case
preponderates heavily against the verdict, trial courts should not
lessen the jury’s role as the primary trier of facts and invoke their
power to grant a new trial. A trial court should not disturb the jury’s
findings where the evidence they considered in nearly balanced or is
such that different minds could fairly arrive at different conclusions.

State v. Shanahan, 712 N.W.2d 121, 135 (Iowa 2006).

We conclude the district court utilized the proper standard for the motion for

a new trial.1 The court acknowledged both of Magang’s post-trial motions. The

court began its analysis by addressing Magang’s claim related to “the lack of

evidence or contrary to the evidence,” stating that the evidence of guilt was

overwhelming. When reviewing the transcript from the hearing on the post-trial

motions as a whole, the record reflects that the court considered and used the

proper standard for the motion for a new trial, a weight of the evidence claim. While

the court did not use the terminology “weight of the evidence,” the court highlighted

1 Magang does not appeal the portion of the motion for a new trial in relation to his
claim concerning the juror.
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Officer Ulin’s body camera footage as “compelling and was certainly sufficient to

draw attention to Mr. Magang.” The court considered the strength of that piece of

evidence in the jury’s ability to tie Magang to the crime. The court also highlighted

that Magang was found near the crime scene with proceeds from the robbery,

strong evidence that Magang was involved. The court was clear, “the evidence

was overwhelming because . . . the strength of the State’s evidence.” The court

appropriately considered Leon’s credibility and the strength of other evidence. See

State v. Fortune, No. 16-0360, 2017 WL 2875866, at *4 (Iowa Ct. App. July 6,

2017) (“The district court made no indication it viewed the evidence in the light

most favorable to the verdict. In addition, the district court concluded the evidence

was overwhelming, indicating an assessment of the weight of the evidence.”). We

determine the court considered the correct standard concerning Magang’s motion

for a new trial.

D. Sentencing

Magang claims the district court wrongly imposed consecutive sentences

for his burglary and robbery convictions. In particular, Magang highlights the

offenses stem from the same act. He makes a general assertion that imposing

consecutive sentences “was unduly harsh.”

“Our review of a sentence imposed in a criminal case is for correction of

errors at law. We will not reverse the decision of the district court absent an abuse

of discretion or some defect in the sentencing procedure.” State v. Formaro, 638

N.W.2d 720, 724 (Iowa 2002) (internal citation omitted). A “particular sentence

within the statutory limits is cloaked with a strong presumption in its favor.” Id.
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When a person is convicted of multiple offenses, the district court has the

discretion to impose consecutive or concurrent sentences. Iowa Code § 901.8.

In support of his claim, Magang cites to the proposition that consecutive

sentences are only permissible when each conviction is premised on a “[s]eparate

and distinct offense.” See State v. Criswell, 242 N.W.2d 259, 260 (Iowa 1976).

Magang asserts the convictions are premised on the same act, implying they were

the same offense for sentencing purposes.

We disagree with Magang’s contentions. Our supreme court has rejected

similar arguments, including in Criswell. See id. (explaining that convictions may

be run consecutively when the offenses were committed in the same occurrence);

see also State v. Taylor, 596 N.W.2d 55, 57 (Iowa 1999) (finding that the court did

not abuse its discretion in ordering consecutive sentencing despite the offenses

being factually intertwined). We look to the elements of the crimes, not the

circumstances underlying them, to determine if the two convictions are premised

on distinct offenses. Robbery and burglary are distinct offenses with separate

elements.2 The court had the discretion to impose consecutive sentences.

The district court must expressly state its reasons for imposing consecutive

sentences. State v. Hill, 878 N.W.2d 269, 275 (Iowa 2016). The court noted the

separate and serious nature of the offenses and in imposing sentences explained:

The assault committed on the victim here was nothing short of
heinous, brutal, and unquestionably destroyed her sense of security
in her own home. Your [pre-sentence investigation report], your
criminal history[3], is such that you have exhausted the State’s ability

2Magang does not assert the offenses should merge.
3Magang was convicted in 2009 for three counts of robbery in the second degree
and one count of ongoing criminal conduct. He was placed on parole in November
2018.
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and the system’s ability to provide you with rehabilitation outside the
prison setting.
So because of those reasons, Mr. Magang, those sentences
shall be run consecutive to each other for a total period not to exceed
35 years.

The court considered appropriate factors when it ordered consecutive sentences.4

We determine no abuse of discretion by the district court in the sentencing hearing

and imposing sentences.

AFFIRMED.

4 “Sentencing courts should . . . explicitly state the reasons for imposing a
consecutive sentence, although in doing so the court may rely on the same
reasons for imposing a sentence of incarceration.” Hill, 878 N.W.2d at 275. Here,
the sentencing court cited the separate and serious nature of the crimes when
imposing consecutive sentences. The court’s written sentencing order highlighted
the same factors.