State of Iowa v. Isaach Oloya Anywar

IN THE COURT OF APPEALS OF IOWA

No. 23-0149
Filed August 21, 2024

STATE OF IOWA,
Plaintiff-Appellee,

vs.

ISAACH OLOYA ANYWAR,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Scott J. Beattie, Judge.

A criminal defendant appeals his conviction for robbery in the first degree.

AFFIRMED.

Martha J. Lucey, State Appellate Defender, and Josh Irwin, Assistant

Appellate Defender, for appellant.

Brenna Bird, Attorney General, and Zachary Miller, Assistant Attorney

General, for appellee.

Considered by Tabor, P.J., and Badding and Buller, J.
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BULLER, Judge.

“I’m at Prospect Park on the East side of Des Moines and I need an

ambulance. My head is bleeding, and I can barely talk right now. I just got robbed.”

These three sentences, relayed by teenager David W. during a 911 call,

summarize the facts here. A police investigation established that Isaach Anywar,

Danil Deng, and Mohanad Ishag robbed David. A jury found Anywar guilty of first-

degree robbery, and he appeals challenging two evidentiary rulings. We affirm.

I. Background Facts and Proceedings

David was hanging out in Des Moines with a few female friends: Halie Poe,

Ciciley Gunn, and “Taby.”1 The group spent time at the downtown skate park

before making their way to Union Park. Taby then led the group to meet up with

Anywar and two other young men, later identified as Deng and Ishag; Taby had

been Snapchatting with Anywar before they met up. Gunn grew uncomfortable

when she noticed the trio of men had guns in their waistbands. After introductions,

David showed the other men a disassembled .22 caliber rifle in his trunk, which he

had planned to shoot at a firing range that day. Both groups then went to Prospect

Park.

The young women didn’t want to go to Prospect Park. Gunn thought it was

“not very safe” and “a lot goes on there.” Poe described it as “somewhere where

bad things happen. Like, people just do dumb things over there.” And Taby didn’t

want to go because she “knew what was going to happen”—David would “g[e]t

jumped” and robbed by Anywar and his compatriots. David told the young women

1 We identify witness “Taby” only by nickname because she was a minor.
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he was not worried about going to Prospect Park with Anywar’s crew, saying: “No,

they’re friends, they’re homies.”

Once they arrived, Taby got out of the car and walked down to the dock with

Anywar. The pair returned a few minutes later. David said he was ready to leave,

and then—in his words—“things went bad.” Anywar’s group drew their handguns

and surrounded David, Poe, and Gunn, who were inside the vehicle. In Gunn’s

words:

[T]hey told David to put the car in park. David just kept saying he
was scared. We told David to do what they were telling him to do.
He put the car in park. They told him to unlock his phone. They took
his phone. They started pressing the gun like against his head,
hitting him with it.

David explained at trial that he tried to forget certain parts of the robbery, but he

remembered being pistol-whipped. He also explained that the men ordered him

out of the car and made him take off his cross necklace, class ring, and all of his

clothes. He next recalled:

I got the guns still pointed at me, and then my—they jumped me,
kicked my face, and they told me to unlock the phone so that way I—
they could get in it and I didn’t have anything, and then they took my
wallet and everything else.

David complied with the men’s demands, hoping they wouldn’t kill him.

While David was on the ground in a state of undress, the men demanded

his cell-phone passcode. He provided the code while the men continued to hit him.

Before leaving, the men told him: “Don’t move, don’t get up, stay there.” And by

the end of the encounter, Anywar and his accomplices had stolen David’s rifle,

tackle box, jewelry, wallet (including bank cards), and cell phone.
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Anywar’s group also pointed their guns at the girls during this encounter and

told them to leave. So they did. In Gunn’s words, they “hauled ass down the

street” to get away. And when she “glanced” back, she saw David was “naked,

basically” and laying in the grass. In Poe’s words: “[T]hey tell me and [Gunn] to

get out the car and leave, don’t say anything to anyone, don’t do anything, don’t

come and try to help him, there’s people that are, like, nearby watching.” She also

recalled seeing the men hit David with a pistol and that he was on the ground when

she looked back. She was “scared” David “was dead.” Taby left too, but not before

she saw David’s “shoes were being thrown into the river. His clothes were being

ripped off, and his face was being smashed into the sidewalk.” She also saw the

men taking the rifle from David’s trunk.

A passerby eventually told David the men had left, and David borrowed a

phone to call 911. Police and medics responded and found David in “obvious

distress” and bleeding from a headwound. Medical professionals diagnosed David

with a concussion, and he later explained at trial that he developed post-traumatic

stress disorder following the robbery.

Police interviewed the witnesses mentioned above, questioned Anywar,

and collected physical and digital evidence. Anywar repeatedly gave false names

when questioned; officers were only able to ascertain his real name by running his

fingerprints. He admitted to being in Union Park the day David was robbed but

denied going to Prospect Park or having anything to do with the robbery. He told

officers he was “not with no females at all that day.” And he later provided police

with falsified digital evidence.
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Police obtained geolocation-data from Anywar’s Snapchat showing him at

Prospect Park during the robbery, with some of that data so specific it showed his

movement down to the boat ramp and then back to the parking area—as described

by Taby. A Snapchat video recorded on Anywar’s phone depicted several seconds

of the robbery, and the investigation established Anywar was the videographer

based on his distinctive shoes. Cell-phone data also confirmed that Anywar was

in Prospect Park at the time of the robbery and placed him at Ishag’s and Deng’s

residences at other points that day, including immediately after the robbery. Data

from Ishag’s and Deng’s phones put them in the same locations. The trio also

recorded videos together on the day of the robbery—some with guns and some

without. And doorbell surveillance footage showed Deng and Anywar arriving at

and leaving a location together in a different vehicle later that night. In addition to

this digital evidence, law enforcement recovered David’s rifle from Deng’s house

two days after the robbery.

The Polk County Attorney charged Anywar with one count of robbery in the

first degree, a class “B” felony in violation of Iowa Code sections 711.1 and 711.2

(2021), with a weapon enhancement pursuant to section 902.7. While David

wasn’t able to identify Anywar from a police photo array during the investigation,

he, Poe, and Taby all positively identified Anywar as one of the robbers at trial.

A jury found Anywar guilty as charged. He appeals.

II. Standard of Review

We review most evidentiary rulings for an abuse of discretion. State v.

Dessinger, 958 N.W.2d 590, 597 (Iowa 2021). But we review the admission of
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hearsay for correction of errors at law. State v. Veverka, 938 N.W.2d 197, 202

(Iowa 2020).

III. Discussion

Anywar advances two challenges on appeal, concerning admission of a

statement David made to police and surveillance footage.

A. Hearsay

Anywar objected to hearsay when the assistant county attorney asked a

police officer to repeat the description David gave of the robbers:

Q. Can you describe the identifying information that David
provided to you of the defendants?
....
A. He described one as 6 feet tall with dreads, and the other
two suspects were roughly around 5’8”. One he stated was
heavyset—

The district court overruled the objection, noting “multiple” rationales supported

admitting the evidence. In our review, we discern no error.

Hearsay is an out-of-court statement offered to prove the truth of the matter

asserted. Iowa R. Evid. 5.801(c). Here, the prosecutor articulated a non-truth

purpose for the evidence—to explain the police officer’s responsive course of

conduct. This is a well-established non-hearsay purpose for admitting statements

from crime victims and witnesses. See 7 Laurie Kratky Doré, Iowa Practice Series:

Evidence § 5.801:4 (West 2023) (“When an out-of-court statement is not offered

for its truth, but to explain the responsive conduct of a third party, it is not

hearsay.”). Anywar does not appear to contest this rationale on appeal and did

not file a reply brief addressing this argument by the State. We could affirm on this

basis alone. See Iowa R. App. P. 6.903(2)(a)(8)(3).
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But rather than delve into the merits, we instead conclude any alleged error

was harmless because the statement was cumulative. See State v. Elliott, 806

N.W.2d 660, 669 (Iowa 2011) (noting trustworthy cumulative hearsay evidence is

harmless); State v. McKettrick, 480 N.W.2d 52, 60 (Iowa 1992) (same). As

pertinent to Anywar, the challenged statement of identification was that he was six-

feet tall and had dreadlocks. Taby and Poe gave similar descriptions in their

testimony, and they and David all positively identified Anywar at trial. On cross-

examination, Anywar’s own attorney read into the record portions of a police report

specifying David told an officer about “a tall suspect with dreads.” These

cumulative statements, all admitted without objection or affirmatively elicited by the

defense, render any arguable error harmless. See State v. Newell, 710 N.W.2d 6,

19 (Iowa 2006) (“[E]rroneously admitted hearsay will not be considered prejudicial

if substantially the same evidence is properly in the record.”).

B. Surveillance Footage

Anywar also objected to the admission of silent surveillance footage

showing he and Deng exited a vehicle, walked off-screen from the camera’s

viewpoint, then ran back to their car a few minutes later and drove off. The

surveillance footage apparently surfaced in connection with a murder investigation

where Anywar and his accomplices were the primary suspects—and the original

recording had audio with gunshots. Anywar conceded most of video was

admissible to show him wearing clothing consistent with the time of the robbery

and that he was with Deng that day instead of alone (as he told police). But Anywar

sought exclusion of the portion of the video that showed him and Deng running
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back to the car and driving off as irrelevant, immaterial, unfairly prejudicial, and

improper character evidence.

The court gave a fairly detailed explanation when it overruled the objection:

The Court has looked at the exhibit. In particular, the portion
of the exhibit—again, make sure it’s clear for the record. It’s really
the latter half of this video that’s in question. The first half of the
video really isn’t at issue because it only depicts the defendant and
Mr. Deng or the alleged individuals getting out of the car and walking
away. Certainly that’s relevant, as the State has noted, for the
purposes noted. It’s really only the second half that arguably could
be prejudicial.
The Court, after reviewing that second half of the video, does
not believe that it’s unduly prejudicial pursuant to 403. Specifically,
while the individuals are running back to the car, quite frankly, they’re
not running as if they’re running away from anything, and they sit in
the car for a moment before they even leave. They leave at not a
horribly accelerated pace. I don’t think there’s a highly or any real
significant prejudicial effect of that. Again, the jury in this case has
no knowledge of any allegations or investigations of murder. That
was excluded by the Court in its previous motion in limine.
As such, I’m going to allow the video as proposed by the
State. Again, that is the video that is void of any sound that would
indicate any gunshots fired in the area.

The defense raised the issue again later in the trial by motion for mistrial,

and the district court again gave a detailed explanation of its ruling:

Let me, in responding and ruling on the matter, make
something very, very clear for purposes of the record. First and
foremost, the court has gone to great lengths in this case to ensure
not only the evidence of that separate murder investigation was not
presented to this jury, but any other inference of any other
investigation concerning any other crime would be presented to this
jury.
I don’t believe any evidence or inference has been made to
this jury. As such, this court—or this jury, rather, has no context in
which to put any—or, rather, to put the video of the defendant, or the
individual that purports to be the defendant, running to his vehicle.
They have no ability to put it in context of another crime. As such,
the piece of evidence before the jury is a—simply a video of an
individual running to a car without any other implication.
As such, there is no, in the court’s mind, unfair prejudice of
that video, and under a 403 balancing analysis, there is relevance
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because it shows place and time and identity of the defendant. When
balanced, it is not substantially outweighed by the unfair prejudice.
As a result, the court stands by its previous ruling that it is
relevant, and it should not be excluded under 403. The court
understands that this motion for mistrial is based upon that previous
ruling. Because the court believes that the previous ruling is correct,
there is no undue prejudice or unfair prejudice, the court denies the
motion for mistrial.

On appeal, Anywar contends the probative value of the video was

outweighed by a “high danger” of unfair prejudice. The State emphasizes the

probative value of the video in establishing that Anywar was with Deng an hour

after the robbery, Anywar lied to police, and Anywar was wearing the same

distinctive clothing seen in the Snapchat recording of the robbery.

Under Iowa Rule of Evidence 5.403, a “court may exclude relevant evidence

if its probative value is substantially outweighed by a danger of . . . unfair

prejudice.” Unfairly prejudicial evidence “prompts the jury to make a decision on

an improper basis.” State v. Liggins, 978 N.W.2d 406, 422 (Iowa 2022). We

recognize balancing under Rule 5.403 can be more art than science, and we do

not discern an abuse of discretion on this record. We reproduced the district

court’s comments above in part to show the court engaged in the proper balancing

analysis and did so thoughtfully to ensure the jury did not use the video evidence

for any improper purpose. While perhaps reasonable jurists could have exercised

their discretion differently, Anywar cannot demonstrate an abuse of discretion by

the district court.

AFFIRMED.