                    IN THE COURT OF APPEALS OF IOWA

                                  No. 14-1566
                            Filed December 9, 2015


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DALE VARNER,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Thomas G. Reidel,

Judge.




      Dale Varner appeals his conviction and sentence for homicide by vehicle

following a jury trial. AFFIRMED.




      Mark C. Smith, State Appellate Defender, and Maria Ruhtenberg,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Benjamin Parrott, Assistant

Attorney General, for appellee.




      Considered by Doyle, P.J., Tabor, J., and Miller, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
                                          2


DOYLE, Presiding Judge.

       Dale Varner appeals from the judgment and sentence entered following a

jury verdict finding him guilty of homicide by vehicle, in violation of Iowa Code

section 707.6A(2)(a) (2011).      He asserts there was insufficient evidence to

support his conviction and that the district court erred in denying his objection to

the “alternative course of action” jury instruction. We affirm.

       I. Background Facts and Proceedings.

       “Viewing the trial evidence in the light most favorable to the jury’s guilty

verdict[],” State v. Romer, 832 N.W.2d 169, 172-73 (Iowa 2013), the jury could

have found the following facts.

       Around 4:20 a.m. on September 22, 2012, twenty-three-year-old Martin

Eason was killed when Varner ran him over with his car.           Varner had been

driving to his mother’s house to drop off his two children for babysitting before he

went to work. The children, then ages four and six, were sitting in the backseat

of his car.

       In his interview with an officer shortly after the incident, Varner gave this

account of the events prior to the collision:

       Well I . . . come up. I turn left, and I’m going up. And as I’m getting
       up towards the stop-sign, this—I-I think he’s black—guy comes up
       from—there’s a fence at the corner house. He comes right over
       from that fence and comes up and stands right in my lane. He’s got
       his arms like this [gesturing], and he’s, you know. And so I hit the
       gas a little bit to get him to move out of the way. Well, he don’t
       move, and right at the last minute, he was trying to dodge, and I
       tried to dodge a little bit, but it’s too late. But I—he was—he was
       threatening me, the way that he was doing this [gesturing], and, you
       know, not even trying to get out of the street. He was walking
                                           3


       towards me the whole time. I thought he was going to pull out a
       gun—I’ve got my little kids in the car, you know.1

Varner told the officer he did not know if Eason had been saying anything

because his windows were rolled up, and he did not remember if Eason’s mouth

had been moving. Varner believed Eason was ten to fifteen feet ahead of him

before Varner “hit the gas,” but Varner did not just “gun it” right away,

explaining: “I was just going normal and then he just kept standing there, kept

standing there. Right at the end, you know, my car’s kind of loud, so I gunned it,

you know, figured you’ll move out of the way, and you don’t know how people are

any more.” The officer asked Varner to explain Eason’s gesturing again, and

Varner made the same movements as before, stating Eason’s arms were out and

he was gesturing in a “very aggressive” way “like he wanted to fight.” Varner told

the officer: “I feared for mine and my children’s lives the way he was doing it; I

thought it—something bad was going to happen. . . . Something real bad was

going to happen,” like Eason

       was going to either jack my car or I mean, maybe kill and then take
       my car, I have no idea, but it was going to be bad. You don’t just
       start walking down a street towards a car that’s coming at you
       unless something’s wrong, something bad is going to happen. He
       had plenty of opportunities to get out of the way, and he didn’t.

After Varner accelerated and struck Eason, Varner “realized [Eason] was stuck

up underneath the car, tried backing up to get him out, and . . . stopped and

started calling the cops.”

       1
         The State offered as exhibits various recordings, including Varner’s interview,
but they were not transcribed. We rely on our own opportunity to listen to the recordings
in quoting the statements in the recordings. We have omitted the short, non-substantive
responses given by the officer in response to Varner’s statements in this part of the
recording.
                                        4


      Varner told the 9-1-1 operator he had “just hit some guy, just jumped right

out, you know, the street in front of me, and he’s underneath my car.”        An

undercover police officer happened to drive by, saw Varner’s car stopped in the

roadway with its flashers on, and stopped to ask if everything was okay. While

still on the phone with 9-1-1, Varner told the officer he was “freaking out.” The

officer noticed a foot was sticking out from under the back of Varner’s car and

immediately called dispatch and related the information, seeking emergency and

fire personnel.   The officer looked under Varner’s car with a flashlight and

observed Eason had a large head wound. Eason was pronounced dead at the

scene. Eason died as a result of multiple blunt force injuries, and he had more

than one injury which could have potentially caused his death.

      Eason, over six-feet tall and weighing more than 200 pounds, had been

wearing a black hoodie, black jeans, and boots. Unknown to Varner, Eason had

been out drinking with friends, and he was walking home very intoxicated. The

toxicology testing on Eason’s blood samples from the autopsy revealed alcohol

at a level of 0.21 percent. Eason was unarmed.

      By amended and substituted trial information, Varner was charged with

voluntary manslaughter and homicide by vehicle.       He asserted a defense of

justification based on self-defense and defense of others.

      Varner’s jury trial commenced in 2014. The district court granted Varner’s

motion for directed verdict on the voluntary manslaughter count, finding the

evidence presented by the State failed to support the necessary elements of that

crime. See Iowa Code § 707.4(1) (setting forth elements). The court submitted

to the jury the lesser included offense of involuntary manslaughter.     See id.
                                            5


§ 707.5(1)(b). The homicide by vehicle count was also submitted to the jury.

See id. § 707.6A(2)(a). During its deliberation, the jury sent the court a note that

it “need[ed] elaboration” on the justification instruction. The court responded and

told the jury it should “reread the instructions [as] submitted.”              The jury

subsequently returned its verdict finding Varner guilty of homicide by vehicle and

not guilty of involuntary manslaughter.

        Varner now appeals.

        II. Discussion.

        On appeal, Varner asserts there was insufficient evidence to support his

conviction. He also argues that the district court erred in denying his objection to

the “alternative course of action” jury instruction. We address his arguments in

turn.

        A. Sufficiency of the Evidence.

        “We review sufficiency-of-evidence claims for correction of errors at law.”

State v. Rooney, 862 N.W.2d 367, 371 (Iowa 2015). In our review, we

        “consider all of the record evidence viewed in the light most
        favorable to the State, including all reasonable inferences that may
        be fairly drawn from the evidence. [W]e will uphold a verdict if
        substantial record evidence supports it. We will consider all the
        evidence presented, not just the inculpatory evidence. Evidence is
        considered substantial if, when viewed in the light most favorable to
        the State, it can convince a rational jury that the defendant is guilty
        beyond a reasonable doubt. 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.”

State v. Edouard, 854 N.W.2d 421, 437 (Iowa 2014) (alteration in original)

(citation omitted).
                                          6


       1. Recklessness.

       The elements of homicide by vehicle set forth in the district court’s

marshaling instruction in the present case were as follows:

              1. On or about the 22nd day of September, 2012, [Varner]
       drove a motor vehicle in a reckless manner.
              2. [Varner’s] recklessness unintentionally caused the death
       of Martin Eason.

See also Iowa Code § 707.6A(2)(a).            The instructions set out the following

definitions:

              A person is “reckless” or acts “recklessly’’ when he willfully
       disregards the safety of persons or property. It is more than a lack
       of reasonable care which may cause unintentional injury.
       Recklessness is conduct which is consciously done with willful
       disregard of the consequences. For recklessness to exist, the act
       must be highly dangerous. In addition, the danger must be so
       obvious that the actor knows or should reasonably foresee that
       harm will more likely than not result from the act. Though
       recklessness is willful, it is not intentional in the sense that harm is
       intended to result.
              ....
              Reckless Driving is defined as: Any person who drives any
       vehicle in such manner as to indicate either a willful or a wanton
       disregard for the safety of persons or property.

       Varner first argues the State failed to prove the “reckless” elements of the

crime, asserting:

       There is nothing in the record to show that [he] was driving his car
       recklessly. He was not speeding, was entirely in his lane, and did
       not break any traffic laws. All of the evidence indicates that he was
       in fear for his safety and the safety of his children, which is why he
       acted the way he did. He was not acting in a way that disregarded
       the safety of others. To the contrary, he was protecting his safety
       and that of his children.

However, this issue was for the jury to decide. See State v. Rohm, 609 N.W.2d

504, 511 (Iowa 2000); State v. Davis, 196 N.W.2d 885, 891 (Iowa 1972).
                                        7


      Here, it is undisputed that Varner intentionally “hit the gas” and

accelerated his vehicle towards, and ultimately into and over, another person.

“Jurors do not abandon their common knowledge about the affairs of the world

when they enter the jury box,” nor are they “expected to lay aside matters of

common knowledge or their own observation and experience of the affairs of

life.” State v. Manning, 224 N.W.2d 232, 236 (Iowa 1974) (citations and internal

quotation marks omitted).    Rather, they are permitted to “give effect to such

inferences as common knowledge or their personal observation and experience

may reasonably draw from the facts directly proved.” Id. (citations and internal

quotation marks omitted).    It is common knowledge that automobiles can be

dangerous and deadly instrumentalities. See Scott v. Wright, 486 N.W.2d 40, 43

(Iowa 1992) (explaining the owner consent statute, which holds the automobile

owner liable for accidents caused by those driving the owner’s car with the

owner’s consent, “was enacted over seventy years ago upon the recognition that

‘an automobile is a dangerous instrumentality’”); State v. Oldfather, 306 N.W.2d

760, 763-64 (Iowa 1981) (stating it “is clear that an automobile, if it is used in

such a manner as to indicate an intent to inflict death or serious injury, may be a

‘dangerous weapon’”). There is no question Varner’s action was intentional and

highly dangerous.     Likewise, a reasonable jury could find a driver of an

automobile knows or should have reasonably foreseen that accelerating into a

person would more likely than not result in harm to that person. The jury could

also find Varner’s action was clearly done without regard to Eason’s safety.

Considering all of the record evidence viewed in the light most favorable to the

State, and including all reasonable inferences that may be fairly drawn from the
                                          8


evidence, there was substantial evidence for a jury to find beyond a reasonable

doubt that Varner drove his car in a reckless manner, which caused Eason’s

death.

         2. Justification.

         Varner also asserts the State failed to prove beyond a reasonable doubt

that he did not act with justification.       “A person is justified in the use of

reasonable force when the person reasonably believes that such force is

necessary to defend oneself . . . from any imminent use of unlawful force.” Iowa

Code § 704.3. However, the State may rebut this defense if it proves beyond a

reasonable doubt that the person was not justified in his or her actions. See

State v. Begey, 672 N.W.2d 747, 752 (Iowa 2003). Specifically, a defendant’s

actions are not justified if the State proves any one of the following elements,

including that the defendant: had available an alternative course of action; did not

believe he was in imminent danger of death or injury and the use of force was not

necessary to save him; did not have reasonable grounds for the belief; or used

unreasonable force. See State v. Shanahan, 712 N.W.2d 121, 134 (Iowa 2006).

Like recklessness, the determination of whether a defendant’s actions were

justified is a question for the jury. See State v. Lawler, 571 N.W.2d 486, 489-90

(Iowa 1997); State v. Beyer, 258 N.W.2d 353, 357 (Iowa 1977).

         Viewing the evidence in the light most favorable to the State, we conclude

the jury could have found the State proved any of the four elements supporting

lack of justification set forth above. Here, Varner and his children were in his car;

Eason was on foot. Assuming without deciding Varner had a reasonable belief

that Eason had a gun, Varner still had multiple avenues available to him other
                                          9


than running Eason over. As the State pointed out at trial, there was little traffic

that early in the morning, and the accident occurred at a three-way stop. Varner

could have gone around Eason, turned left away from Eason, or backed up. A

jury could have found the State proved Varner had available to him an alternative

course of action.

       Similarly, the jury could have found the State proved Varner did not

believe he was in imminent danger of death or injury.        The State’s accident

reconstructionist opined Eason was not facing the front of Varner’s vehicle based

upon the lack of evidence on the hood of Varner’s car. No weapons were found

on Eason’s person. And even if the jury found Varner did believe he and his

children were in imminent danger of death or injury, the jury still could have found

Varner’s belief was unreasonable under the facts of the case. The jury could

have found the gestures Varner stated Eason had made were non-threatening or

not threatening enough to support an objective reasonable belief of imminent

danger of death or injury. Particularly in light of the fact Varner and his children

were in a car, while Eason was on foot.

       Finally, even if the jury found Eason’s belief he and his children were in

imminent danger of death or injury was reasonable, it still could have concluded

the force used by Varner was unreasonable. Varner decided to accelerate his

car toward Eason rather than go around. Eason was only ten to fifteen feet away

from Varner’s car when Varner “hit the gas.” Based on our review of the record

in the light most favorable to the verdict, we find substantial evidence to uphold

Varner’s conviction of homicide by vehicle.
                                         10


       B. Jury Instructions.

       Varner also raises claims concerning the jury instructions. Relevant here,

the alterative-course-of-action instruction given to the jury stated:

       [I]f a defendant is confronted with the use of unlawful force against
       him, he is required to avoid the confrontation by seeking an
       alternative course of action before he is justified in repelling the
       force used against him. However, there is an exception.
               If the defendant was in his own home . . . or property which
       he was legally occupying and the alternative course of action was
       such that he reasonably believed he had to retreat or leave his
       position to avoid the confrontation, then he was not required to do
       so and he could repel force with reasonable force including deadly
       force.
               If the alternative course of action involved a risk to his or
       another’s life or safety, and he reasonably believed that, then he
       was not required to take or use the alternative course of action to
       avoid the confrontation, and he could repel the force with
       reasonable force including deadly force.

(Emphasis added.) Additionally, the “apparent-danger” instruction stated:

       [Varner] claims danger existed. You are to consider the danger or
       apparent danger of harm to [Varner] or his children from the
       viewpoint of a reasonable person under the circumstances which
       existed at that time.
              It is not necessary that there was actual danger, but [Varner]
       must have acted in an honest and sincere belief that the danger
       actually existed. Apparent danger with knowledge no real danger
       existed is no excuse for using force.

As to “reasonable grounds for the belief,” the jury was instructed:

       [Varner] was not required to act with perfect judgment. However,
       he was required to act with the care and caution a reasonable
       person would have used under the circumstances which existed at
       that time.
               If in [Varner’s] mind the danger to himself or his children was
       actual, real, imminent, or unavoidable, even though it did not exist,
       that is sufficient if a reasonable person would have seen it in the
       same light.

       Based upon these instructions, Varner argues the alterative-course-of-

action instruction stated above misstated the law because it “required the jury to
                                         11


find there was actual danger to [Varner], not just apparent danger, in order for

[Varner] to be justified in not seeking an alternative course of action.” He also

argues that instruction misstated the law in stating there was “an exception”

when there were two exceptions.          He concedes the latter issue was not

preserved at trial and asserts the matter here as an ineffective-assistance-of-

counsel claim.

       We ordinarily review jury-instruction challenges for correction of errors at

law. See Edouard, 854 N.W.2d at 431. However, we review the related claim—

that the district court should have given a requested instruction—for an abuse of

discretion. See id.; but see Tamco Pork II, LLC v. Heartland Co-op, No. 14-0412,

2015 WL 4481571, at *2-5 (Iowa Ct. App. July 22, 2015) (“There is a lurking

inconsistency in our law regarding the scrutiny applied to the district court’s

refusal to give a requested jury instruction.”). Reversal for an error in giving or

refusing to give a jury instruction does not merit reversal unless it results in

prejudice to the complaining party. State v. Guerrero Cordero, 861 N.W.2d 253,

258 (Iowa 2015). “The requirement that a jury instruction error result in prejudice

before a conviction will be reversed mirrors the harmless-error analysis this court

undertakes for any alleged error in a criminal trial.” State v. Hanes, 790 N.W.2d

545, 550 (Iowa 2010).       Where an error in the jury instructions is not of

constitutional magnitude, the reviewing court asks whether “it sufficiently

appear[s] that the rights of the complaining party have been injuriously affected

by the error or that he has suffered a miscarriage of justice.” Id. If the instruction

“could reasonably have misled or misdirected the jury,” prejudice exists. State v.

Hoyman, 863 N.W.2d 1, 7 (Iowa 2015).
                                         12


       An ineffective-assistance-of-counsel claim is reviewed de novo and

requires a defendant to prove both that his trial counsel failed to perform an

essential duty and that failure resulted in prejudice. See State v. Webster, 865

N.W.2d 223, 231 (Iowa 2015). We can reject the ineffective-assistance claim if

the defendant fails to establish either a breach of duty or prejudice. See id.

       1. Alternative Course of Action and Actual Danger.

       At trial and here, Varner takes specific issue with the following language in

the alternative-course-of-action instruction: “If the alternative course of action

involved a risk to his or another’s life or safety, and he reasonably believed

that . . . .” He argues this language “required the jury to find there was an actual

danger to [him], not just an apparent danger.” He instead requested the jury be

instructed that if he “lawfully believed that the alternative course of action

involved a risk to his, another’s life, or safety, and his belief was reasonable, then

he was not required to take or use the alternative course of action to avoid

confrontation.” Thus, he argues the instruction should specifically look only at a

defendant’s subjective belief, not the belief of a reasonable person. Though a

close call, we disagree.

       Iowa Code section 704.1 sets forth part of the legal elements of a

justification defense. See State v. Frei, 831 N.W.2d 70, 75 (Iowa 2013). That

section states:

       “Reasonable force” is that force and no more which a reasonable
       person, in like circumstances, would judge to be necessary to
       prevent an injury or loss and can include deadly force if it is
       reasonable to believe that such force is necessary to avoid injury or
       risk to one’s life or safety or the life or safety of another, or it is
       reasonable to believe that such force is necessary to resist a like
       force or threat. Reasonable force, including deadly force, may be
                                           13

       used even if an alternative course of action is available if the
       alternative entails a risk to life or safety, or the life or safety of a
       third party, or requires one to abandon or retreat from one’s
       dwelling or place of business or employment.

Iowa Code § 704.1 (emphasis added).              In interpreting and applying the

justification statutes, the Iowa Supreme Court has explained “the test of

justification is both subjective and objective. The actor must actually believe that

he is in danger and that belief must be a reasonable one.” Frei, 831 N.W.2d at

74.

       Here, section 704.1 does not state “force . . . may be used even if an

alternative course of action is available if [the actor believes] the alternative

entails a risk to life or safety.”    Consequently, the statute contemplates an

objective standard on this issue—whether a reasonable person would believe the

alternative course of action entailed a risk. This interpretation makes sense,

given that no more force than that is deemed necessary may be used. We

conclude the language of the instruction properly stated the law. Consequently,

the district court did not abuse its discretion in not changing the language of the

instruction to that requested by Varner.

       2. Exceptions.

       Varner also asserts, by way of an ineffective-assistance-of-counsel claim,

that the alternative-course-of-action jury instruction was a misstatement of the

law, because the instruction singularly stated there was “an exception,” when, in

fact, there were two exceptions given in the instruction.2 Although the exceptions


       2
        Though we often times preserve ineffective-assistance-of-counsel claims for
postconviction relief proceedings, we need not if we find the record adequate to address
                                        14


were not separated by an “or,” they were set forth in separate paragraphs.

Reading the instruction, as stated above, it is clear that though the plural

“exceptions” was not used, the jury would not have found the phrasing confusing.

Each paragraph separately indicated that if the jury found the requirement set

forth in the paragraph, Varner was not required to take or use the alternative

course of action to avoid the confrontation, “and he could repel the force with

reasonable force including deadly force.” Considering all of the jury instructions

as a whole, we do not believe that the failure to state in the plural “exceptions”

could have reasonably misled or misdirected the jury. Consequently, there is no

reversible error. See Hanes, 790 N.W.2d at 551 (“Our analysis of prejudice is

also influenced by an evaluation of whether a jury instruction could reasonably

have misled or misdirected the jury.”). Because counsel has no duty to raise a

meritless claim, see State v. Tompkins, 859 N.W.2d 631, 637 (Iowa 2015),

Varner has failed to establish his counsel was ineffective.

       Additionally, we question whether the first exception, which stated it

applied if Varner “was in his own home . . . or property which he was legally

occupying,” should have been given at all. As indicated above, section 704.1

specifically states one does not have “to abandon or retreat from one’s dwelling

or place of business or employment,” even if there is an alternative course of

action. It does not reference one’s automobile. See Iowa Code § 704.1. As

some sources have indicated, “[t]he freedom from the duty to retreat does not

apply to an automobile or vehicle.” 2 Charles E. Torcia, Wharton’s Criminal Law

the issue. See State v. Thorndike, 860 N.W.2d 316, 319 (Iowa 2015). We find the
record here sufficient to address the issue.
                                       15

§ 128 (15th ed. 2015); see also Weaver v. State, 44 So. 2d 773, 774 (Ala. Ct.

App. 1950) (“The occupant of his automobile, by reason of this fact solely, is not

relieved of the duty to retreat as that element is applied to the doctrine of self

defense. Our courts have not extended the rule to apply to automobiles or other

vehicles.”); 40 C.J.S. Homicide § 222 (2015) (“A defendant’s automobile cannot

be equated with his or her home, and thus the defendant has a duty to retreat

from a confrontation.”); 4 Robert R. Rigg, Iowa Practice Series: Criminal Law

§ 2:27 (noting the alternative-course-of-action exception “does not apply if the

individual is in their dwelling or place of business or employment”) (Westlaw

2015). As one court pointed out, the “very mobility of an automobile . . . may

connote the inherent usefulness of an automobile under certain circumstances

for a retreat from a self-defense confrontation.” See Baker v. State, 506 So. 2d

1056, 1059 (Fla. Dist. Ct. App. 1987), supersession recognized in Smiley v.

State, 966 So. 2d 330 (Fla. 2007).     Another appellate court affirmed its trial

court’s refusal to even submit a self-defense instruction where the defendant ran

over “the aggressor,” because the court “found no reasonable person in [the

defendant’s] shoes would have acted as she did.” State v. Larkins, no. 45276-6-

II, 2015 WL 2025264, *6-7 (Wash. Ct. App. Apr. 28, 2015). That court reasoned:

              A defendant may only use as much force in self-defense as
      “what a reasonably prudent person would find necessary under the
      conditions as they appeared to the defendant.” Deadly force may
      be used only if the defendant reasonably believes that he or she is
      threatened with death or great personal injury. If placed in the
      situation [the defendant] faced, no reasonably prudent person
      would have believed himself or herself to be in imminent danger of
      death or great personal injury. Nor would any reasonably prudent
      person have believed it necessary to strike [the “aggressor”] with
      the automobile to defend against the perceived danger in these
      circumstances.     Although [the defendant] believed that [the
                                        16


       “aggressor”] possessed a gun and had been digging in her purse
       while walking, [the “aggressor”] was not brandishing a gun or
       threatening [the defendant] with a gun. In fact, [the defendant]
       never saw [the “aggressor”] with a gun. . . . The objective test for
       self-defense is not met here. Therefore, we hold that the trial court
       did not err by denying [the defendant] a self-defense instruction.

Id. (internal citations omitted). In any event, Varner was given the benefit of the

instruction here, and we do not believe the instruction was prejudicial.

Accordingly, we find Varner failed to establish his trial counsel rendered

ineffective assistance.

       III. Conclusion.

       The jury was tasked with determining whether Varner’s actions were

justified under the circumstances of the case. In weighing this evidence, the jury

could have concluded that Varner acted out of fear for his safety and his fear was

reasonable, but it was by no means compelled to so conclude. It determined

Varner was not guilty of involuntary manslaughter but was guilty of homicide by

vehicle. We decline to substitute our judgment for that of the jury and hold that

sufficient evidence was introduced at trial to sustain Varner’s conviction. We also

find the instructions given were correct statements of the law and not so

confusing to be prejudicial to Varner. We accordingly affirm his conviction and

sentence for homicide by vehicle.

       AFFIRMED.
