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On March 28, 1991, several persons, whom Davenport police believed to be members of a street gang known as the Black Gangster Disciples, became involved in an altercation with Dewey Lamp, a person associated with a rival gang. Lamp threw a bicycle against the side of the house where the Black Gangster Disciples had congregated.
Following this altercation, several of the Black Gangster Disciples, including the defendant and one Buddy Black went to Lamp’s home. Upon arriving at the Lamp home, Buddy Black, who was armed with a handgun, approached a window. When a figure came into view, some member of the gang yelled “cap the bitch.” Black then fired his gun. The bullet struck Dewey Lamp’s mother, puncturing her lung.
Defendant and a codefendant, Brandon Taylor, were tried jointly on charges of aiding and abetting attempted murder and willful injury, and for criminal gang participation. Taylor was acquitted on all charges. Defendant was acquitted of attempted murder but convicted of willful injury and criminal gang participation.
During the trial, testimony was received indicating that, within the parlance of the gang, the phrase “cap the bitch” meant “shoot the woman in the window.”
A witness present at the scene of the shooting testified that he recognized defendant’s voice utter those words.
Another witness testified that prior to going to the Lamp residence, Black had announced to the other gang members, including defendant, that he intended to shoot Dewey Lamp.
Defendant also asserts that the evidence was insufficient to establish guilt of the charge of criminal gang participation.
That crime is defined as follows: A person who actively participates in or is a member of a criminal street gang and who willfully aids and abets any criminal act committed for the benefit of, at the direction of, or in association with any criminal street gang, commits a class “D” felony.
Iowa Code § 723 A. 2 (1991).
For purposes of applying this statute, a “criminal street gang” is defined as any ongoing organization, association or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more criminal acts, which has an identifiable name or identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.
Iowa Code § 723A.1(2).
A “pattern of criminal gang activity” is defined as the commission, attempt to commit, conspiring to commit, or solicitation of two or more criminal acts, provided the criminal acts were committed on separate dates or by two or more persons who are members of, or belong to, the same criminal street gang.
In seeking reversal, defendant urges that the district court erred in permitting the jury to consider the substantive crime with which defendant was charged, i.e., willful injury, in its determination of whether the group with which he was associated comprised a “criminal street gang.” He urges that the statute requires proof that the defendant was active in a criminal street gang and participated in a criminal act for the gang. To establish this, defendant argues, the State must prove a pattern of criminal activity separate from the substantive crime charged.
We believe defendant’s argument fails because the district court did not permit the jury to determine the existence of a criminal street gang by reference to the substantive willful injury offense. The court’s instructions required the State to establish the existence of a criminal street gang by showing two additional crimes. Those crimes were going armed with intent and terrorism.
We believe that the evidence was sufficient to permit the jury to find that defendant and his associates, acting in concert, were guilty of going armed with intent and terrorism. Under the definition in section 723A.1(3), it is not necessary that those offenses be committed on separate dates if two or more gang members were involved in the commission thereof. It is not necessary to decide whether both of the offenses utilized by the State to establish a pattern of criminal gang activity had to precede the commission of the willful injury offense or whether those offenses could be committed simultaneously with the willful injury.
In the present case, the offense of going armed with intent clearly preceded the willful injury offense.
In addition, we are convinced that the act of terrorism also preceded the substantive crime charged.
The State’s theory of “terrorism” was predicated on Black’s act of shooting into a building.
That act preceded the injury sustained by the victim upon the impact of the bullet.
The evidence sustains the jury’s verdict.
State v. Browne, 494 N.W.2d 241 (1992). State of Iowa, Appellee, v. Anthony A. Browne, Appellant. No. 91-1129. Supreme Court of Iowa. December 23, 1992.
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