                       IN THE COURT OF APPEALS OF IOWA

                                   No. 14-0256
                               Filed April 22, 2015


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

KENT ANTHONY TYLER III,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Arthur E. Gamble,

Judge.



      Kent Tyler appeals from his conviction and sentence for murder in the

second       degree.     CONVICTION    AND       SENTENCE   REVERSED   AND

REMANDED.



      Angela Campbell of Dickey & Campbell Law Firm, P.L.C., Des Moines, for

appellant.

      Thomas J. Miller, Attorney General, Linda J. Hines, Assistant Attorney

General, John P. Sarcone, County Attorney, and Daniel Voogt and Stephanie

Cox, Assistant County Attorneys, for appellee.



      Heard by Danilson, C.J., and Potterfield and Bower, JJ.
                                          2


POTTERFIELD, J.

       Kent Tyler III appeals his conviction and sentence for murder in the

second degree, in violation of Iowa Code section 707.3 (2013).1 Tyler claims the

State failed to present sufficient evidence of his guilt under each of the three

legal theories submitted to the jury. He also claims the district court abused its

discretion by allowing irrelevant and unduly prejudicial prior bad acts evidence to

be admitted at trial. Lastly, he claims the district court erred by instructing the

jury on theories of joint criminal conduct and aiding and abetting.

       We find there is not sufficient evidence to support the conviction on any of

the three theories submitted. We therefore reverse the conviction but do not

address Tyler’s evidentiary claim or jury-instruction claim.

       I. Factual and Procedural Background.

       On October 8, 2013, Tyler, James Shorter, Yarvon Russell, and LePrese

Williams were jointly charged by trial information with murder in the first degree.

The charges resulted from events that occurred on August 24, 2013. Because

Tyler did not waive his right to speedy trial and eventually sought severance from

the other three defendants, he was tried separately. His trial commenced on

December 9, 2013.

       At trial, testimony established that on the night of August 24, 2013, Tyler

and other individuals were at a party in a parking lot near the Des Moines River.

Witnesses estimated anywhere from twenty to seventy teenagers or young


1
 “A person who kills another person with malice aforethought either express or implied
commits murder.” Iowa Code § 707.1. “A person commits murder in the second degree
when the person commits murder which is not murder in the first degree.” Iowa Code
§ 707.3(1).
                                          3


individuals were present at the party.        Isiah Berry and his girlfriend, Monica

Perkins, had been fishing that day and were in the parking lot when people

began to gather.     They were still there later in the evening when Richard

Daughenbaugh drove into the parking lot. He attempted to park his truck, but

some individuals were standing in the parking spot. Daughenbaugh honked his

truck horn, exchanged words with a male, Derico Lowery, who continued to stand

in the spot, and then Daughenbaugh parked.                 After exiting his truck,

Daughenbaugh began mingling and dancing with the crowd in the parking lot.

He was seen drinking from a bottle of alcohol that was being passed around.

Later   toxicology   reports   also   revealed    that   Daughenbaugh    had   used

methamphetamine that day.2

        Perkins testified that approximately fifteen or twenty minutes after

Daughenbaugh arrived, she saw a man hit Daughenbaugh in the face.

Daughenbaugh fell to the ground. When he tried to get up, a group of people

began stomping on Daughenbaugh. Perkins ran over and placed herself over

Daughenbaugh on the ground. Berry ran over to help her, and several of the

people stopped stomping on Daughenbaugh to chase Berry away. At one point,

Berry tripped and fell and people started attacking him while he was on the

ground. Perkins then used her cell phone to call 911. As she was talking to the

dispatcher, a couple of girls from the crowd took Perkins’s cell phone from her

and threw it toward the river. Police arrived as the crowd dispersed.




2
 The toxicology report showed Daughenbaugh’s blood alcohol level was .186 and
methamephamine level was 73 nanograms per milliliter.
                                        4


      Daughenbaugh was pronounced dead at 1:57 a.m. on August 25, 2013.

The medical examiner, Dr. Gregory Schmunck, testified that Daughenbaugh had

external injuries to his face consistent with blunt force trauma, but

Daughenbaugh had not sustained any significant internal injury to the head.

Rather, Dr. Schmunck concluded the cause of death was multiple blunt force

traumas to the mesentery. Specifically, he explained that Daughenbaugh had

two liters of blood in his abdominal cavity at the time of the autopsy.        Dr.

Schmunck testified, “I feel that these injuries from a forensic standpoint indicate

that the victim, the decedent, was probably unable to defend himself at the time

the blows were rendered to the abdomen.”

      Raymond Shorter was one of the teenagers at the party. He testified he

heard “Buddha” tell Daughenbaugh not to touch him and then saw him knock

Daughenbaugh to the ground. Tiarra Talbert was also at the party on the night in

question; she testified she did not witness who hit Daughenbaugh, but she

testified that Kent Tyler is also known as Buddha. Elissa Roland testified she

saw Daughenbaugh touch Tyler’s arm and then saw Tyler hit Daughenbaugh in

the face. Latayah Shumpert, another party-goer, testified she witnessed the first

punch, stating the assailant “hit [Daughenbaugh] and then he walked off.” At

trial, Lowery testified he could not remember much from the night in question;

however, the State introduced impeachment evidence that Lowery had

previously told the police that Tyler went by the nickname Buddha and that Tyler

hit Daughenbaugh.

      Breanna Billings was also at the party on the night in question. Tyler

objected to Billings’s testimony insofar as she was expected to testify that he
                                            5


participated in other, previous fights with the codefendants. The State made an

offer of proof of Billings’s testimony outside the presence of the jury. 3

       During the offer of proof, Billings testified that once she saw the crowd—

including Russell, Shorter, Williams, and Tyler—surround Daughenbaugh, she

wanted to leave. When asked why, she stated, “Usually fights happen.” She

further testified she had previously witnessed Shorter and Russell fight together

and Tyler and Williams fight together, but she had not seen the four of them fight

someone before.       When questioned by the defense, the following exchange

occurred:

               Q: And so you were asked [by the police] if you had ever
       seen [Tyler] in a fight before? A: Yeah.
               Q: What did you say? A: No.
               Q: What about [Williams]? You were asked if you had ever
       seen [Williams] fight? A: I said no.
               Q: So you have seen them fight before? A: Yeah.
               Q: Okay. So what you said on page 52 was not true?
       A: Right.
               Q: Okay. So let’s talk about when you saw [Tyler] fight.
       A: Like maybe towards the beginning of the year.
               Q: Okay. A: I think.
               Q: Can you give me a month? A: Probably like April or May.
       It was in the summer. Actually it was in the summer.
               Q: Pardon me? A: It was in the summer.
               Q: And [Williams] was there? A: Yeah, I think.
               Q: Tell me about it. A: There was a party, a big group of
       people, and they fought, multiple people.
               Q: And that was again just [Williams] and [Tyler]? [Russell]
       and [Shorter] were not there? A: No.
               Q: And you would agree with me, Ms. Billings, that you told
       the police that you had seen neither [Tyler] nor [Williams] in a fight
       before? A: Yeah.




3
 The State made the offer of proof in order for the district court to determine whether the
evidence was admissible. Because the court found that the evidence was relevant to
Tyler’s knowledge and intent on the night in question and that the evidence was
substantially more probative than prejudicial, the court overruled the objection.
                                          6


The court held Billings’s testimony was admissible to prove Tyler’s knowledge

and intent.

       In front of the jury, Billings testified that on the night in question, she saw

Tyler, Williams, Shorter and Russell surround Daughenbaugh and she wanted to

leave. When asked why, over the defense’s objection, Billings testified, “I seen it

all before. I just want to get out of there. I know what they’re capable of.” She

clarified that she meant fighting.    She then clarified that she saw the crowd

surround Daughenbaugh before the first punch was thrown or any fighting began.

She testified, “I seen the crowd surround him. I was ready to go. I know what’s

going to happen, and I don’t want to be a part of it. So that when we get in the

car and we leave when the group is forming.”

       Over Tyler’s objection, the case was submitted to the jury under the

theories of individual liability, aiding and abetting, and joint criminal conduct. The

court instructed the jury they were not required to unanimously agree on the

theory. The jury returned a general verdict finding Tyler not guilty of murder in

the first degree, but guilty of murder in the second degree. On February 19,

2014, Tyler was sentenced to a mandatory term of incarceration not to exceed

fifty years. He appeals.

       II. Standard of Review.

       We review sufficiency of evidence claims for the correction of errors at

law.   State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012).           The court must

consider all of the record evidence in a light most favorable to the State including

reasonable inferences from the evidence. Id. The verdict must be upheld if there

is substantial evidence to support it. Id. “Evidence is considered substantial if,
                                             7


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.” Id. “All evidence is

considered, not just that of an inculpatory nature.” State v. Keopasaeuth, 645

N.W.2d 637, 640 (Iowa 2002). “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.” Sanford, 814 N.W.2d at 615.

       III. Discussion.

       Tyler claims the State failed to present sufficient evidence of his guilt

under any of the three legal theories submitted to the jury: (1) individual liability,

(2) aiding and abetting, and (3) joint criminal conduct.4

               A. Individual Liability

       In order to convict Tyler of murder in the second degree under the theory

of individual liability, the State was required to prove that Tyler, without

justification (1) assaulted Daughenbaugh; (2) Daughenbaugh died as a result of

the assault; and (3) Tyler acted with malice aforethought. Tyler maintains that

there is not sufficient evidence to support his conviction under a theory of

individual liability, because even if the testimony at trial established that he threw

the first punch, his actions were neither the but-for nor independently-sufficient

cause of Daughenbaugh’s death.




4
  Tyler argues his conviction must be reversed if any one of the theories of liability is not
supported by substantial evidence. The State, citing Griffin v. United States, 502 U.S.
46 (1991), argues his conviction must be affirmed unless all theories of liability are not
supported by substantial evidence. See also State v. Thorndike, No. 13-1403, 2014 WL
3931873, at *3–4 (Iowa Ct. App. Aug. 13, 2014). Because we find none of the three
theories in this case is supported by substantial evidence, we do not address this issue.
                                          8


       “Generally, causation exists in criminal law, often without much fanfare, as

a doctrine justifying the imposition of criminal responsibility by requiring a

‘sufficient causal relationship between the defendant’s conduct and the

proscribed harm.’” State v. Tribble, 790 N.W.2d 121, 126 (Iowa 2010) (quoting

State v. Marti, 290 N.W.2d 570, 584 (Iowa 1980)). “The conduct of a defendant

is a ‘factual cause of harm when the harm would not have occurred absent the

conduct.’” Id. (quoting Restatement (Third) of Torts: Liability for Physical and

Emotional Harm § 26, at 346 (2010)). The definition of proximate cause in a

criminal case is the same as in a civil case. State v. Wissing, 528 N.W.2d 561,

564 (Iowa 1995).      “In the criminal context, proximate cause serves as a

requirement that there be a sufficient causal relationship between the

defendant’s conduct and a proscribed harm to hold him criminally responsible.”

Id. (internal quotation marks omitted).

       The State maintains there was substantial evidence to support a jury

finding that Daughenbaugh would have been able to protect himself from the

blows that caused his death but for Tyler’s initial punch. Dr. Schmunk testified

that it was the injury to Daughenbaugh’s mesentery that caused his death. He

testified that such an injury to the mesentery is unusual in adults of

Daughenbaugh’s size because “normally an adult male, unlike a child, can

protect themselves from blows to the abdomen.”          When asked specifically

whether Daughenbaugh’s injuries were consistent with his being unable to

defend himself, Dr. Schmunck testified, “I feel that these injuries from a forensic

standpoint indicate that the victim, the decedent, was probably unable to defend

himself at the time the blows were rendered to the abdomen.”
                                        9


      Perkins and Roland testified that Daughenbaugh fell to the ground after he

was hit in the face. They further testified that Daughenbaugh tried to get up from

the ground. However, when the crowd began to kick him and stomp on him,

Daughenbaugh was unable to stand up.          The State argues these facts are

sufficient to support the jury’s verdict Tyler is guilty of murder in the second

degree.

      However, we do not believe there is a “sufficient causal relationship

between the defendant’s conduct and a proscribed harm to hold him criminally

responsible” on an individual liability basis. Id. None of the witnesses testified

that Tyler took any part in the stomping and kicking of Daughenbaugh while he

was on the ground. In fact, multiple witnesses testified that Tyler walked away

after hitting Daughenbaugh once in the head or face. Dr. Schmunk testified that

Daughenbaugh did not sustain any significant internal injuries to his head.

      Testimony that Daughenbaugh may have been unable to defend himself

from the blows that caused his death does not give rise to a reasonable inference

that Tyler’s punch was the cause of Daughenbaugh’s purported inability to fend

off his attackers. Testimony that Daughenbaugh attempted to rise after the initial

punch indicates the punch did not incapacitate him.           Thus, there is not

substantial evidence to support a finding that Tyler was individually liable for

murder in the second degree beyond a reasonable doubt.

             B. Aiding and Abetting

      In order to convict Tyler under the theory of aiding and abetting, the State

was required to prove that Tyler, without justification, (1) either actively

participated in assaulting Daughenbaugh or knowingly advised and encouraged
                                        10


another to assault Daughenbaugh; (2) Daughenbaugh died as a result of the

assault; and (3) Tyler acted with malice aforethought in aiding and abetting the

perpetrators. “Mere nearness to, or presence at, the scene of the crime, without

more evidence, is not aiding and abetting.” State v. Allen, 633 N.W.2d 752, 754

(Iowa 2001). Mere knowledge of the crime is not enough to prove aiding and

abetting. Id.

       We find there is insufficient evidence for a rational jury to find beyond a

reasonable doubt that Tyler “associate[d] himself with the venture [of

Daughenbaugh’s murder], that he participated in it as something that he wished

to bring about, [or] that he sought by his action to make it succeed.” State v.

Galvan, 297 N.W.2d 344, 349 (Iowa 1980) (citation and internal quotation marks

omitted). No evidence was presented that Tyler participated in the delivery of the

blows that led to Daughenbaugh’s death, nor was evidence presented that he

advised or encouraged anyone to assault Daughenbaugh.

       The State’s evidence shows that Tyler was present at the scene. It also

indicates that Tyler threw only one non-lethal punch. We do not agree with the

State that this evidence gives rise to an inference that Tyler “knew that the others

in the group would continue to assault Daughenbaugh as soon as a punch was

thrown.” Further, such knowledge would not itself satisfy the requirement that

Tyler actively advised or encouraged a second assault. The State argues prior-

bad-acts evidence of a previous fight in which Tyler and Williams were involved

shows Tyler’s knowledge and intent; however, that evidence shows only Tyler’s

knowledge that others might join in a fight or his intent to cause a fight to take

place. The jury acquitted Tyler of murder in the first degree indicating a lack of
                                          11


proof of specific intent to kill.   There is a similar lack of proof of malice

aforethought to support a conviction for murder in the second degree.

      Tyler’s single punch is not sufficient to give rise to a reasonable inference

that he wished others to subsequently initiate a deadly assault, that he acted in

any way to achieve such a result, or that he acted with malice aforethought. The

State has failed to satisfy its burden to prove beyond a reasonable doubt that

Tyler knowingly advised or encouraged anyone to initiate a deadly assault on

Daugenbaugh. There is not substantial evidence to support Tyler’s conviction

under an aiding and abetting theory of the crime.

              C. Joint Criminal Conduct

      To convict Tyler under the theory of joint criminal conduct, the State had to

prove (1) Tyler acted together with at least one person; (2) Tyler knowingly

participated in the crime of assault; (3) while furthering the crime of assault,

another person or persons committed the different crime of murder; and (4) Tyler

could have reasonably expected that the different crime of murder would be

committed in furtherance of Tyler’s assault. See State v. Smith, 739 N.W.2d 289,

294   (Iowa   2007);   see   also   Iowa       Code   §   703.2.   “Joint   criminal

conduct . . . contemplates two acts—the crime the joint actor has knowingly

participated in, and a second or resulting crime that is unplanned but could

reasonably be expected to occur in furtherance of the first one.” State v. Satern,

516 N.W.2d 839, 843 (Iowa 1994).

      The evidence presented at trial fails to establish that Tyler could have

reasonably expected the crowd to murder Daughenbaugh as a result of his single

punch. While there was testimony that Tyler and his friends had participated in a
                                         12


fight in the past, there was no evidence that anything as serious as death had

ever resulted. Billings’s testimony taken in context demonstrates only that some

of the people present during the assault were “capable of” starting fights, but it is

not evidence that those same people would reasonably have been expected to

commit murder.

       To support its assertion Tyler should reasonably have expected

Daughenbaugh’s death, the State relies on an unpublished decision from this

court, State v. Gardner, No. 02-1082, 2003 WL 21464629, at *2 (Iowa Ct. App.

June 25, 2003), in which we held serious injury to be a foreseeable consequence

of a large-scale, pre-planned fight between two large groups.         Gardner aptly

demonstrates the difference between a reasonably foreseeable outcome and one

that is not reasonably foreseeable. In Gardner, nineteen individuals accosted a

large group of party-goers for the purpose of initiating a fight. Gardner, No. 2003

WL 21464629, at *1. Due to the large number of people who planned together in

advance to assault another large group of people, serious injuries were

reasonably foreseeable. Id. at *2. In this case, on the other hand, there is no

evidence Tyler’s initial assault on Daughenbaugh was planned. Additionally, the

ultimate injury was the victim’s death, a consequence not contemplated or

discussed in Gardner or in the evidence presented against Tyler.

       The evidence does not establish that Tyler would reasonably expect his

punch, or even a subsequent hypothetical fight, would lead to Daghenbaugh’s

death. Without proof of a reasonable expectation of a resulting murder, there is

not substantial evidence to support Tyler’s conviction under the joint criminal

conduct theory of the crime.
                                        13


      IV. Conclusion.

      We find insufficient evidence to support Tyler’s conviction based on any of

the State’s three asserted theories of liability. Because at least one element of

each of the three theories lacks substantial evidence to support it, we reverse

Tyler’s conviction and remand for entry of judgment of acquittal.

      CONVICTION AND SENTENCE REVERSED AND REMANDED.

      Bower, J., concurs; Danilson, C.J., concurs in part and dissents in part.
                                           14


DANILSON, C.J. (concurring in part and dissenting in part)

       I concur in part and dissent in part.         I agree that Tyler may not be

criminally liable on an individual basis, but I would affirm the conviction upon the

theories of aiding and abetting and joint criminal conduct.

       This case has enough issues to fill a criminal law hornbook as well as one

evidentiary issue.

       The majority did not address the issue of prior bad acts evidence. In

respect to the prior bad acts evidence testified to by Billings—that Tyler and at

least one of the codefendants had fought together at parties before—the district

court stated:

       The witness who was present observing all of this knew based on
       her prior experience with this defendant and his brother, Leprese,
       just that same summer at a similar party under similar
       circumstances that there was going to be a fight based on what she
       was observing. That is very strong evidence, it seems to me, that
       the defendant himself knew or could reasonably expect that by
       confronting this person who turned out to be the victim and
       allegedly, at least at this point, striking the first blow that a fight was
       going to follow. A person intends the natural consequence of their
       act.

I agree. Further, the testimony regarding her prior knowledge of fighting was

duplicative of Tyler’s statement that fights always happen. The prejudicial effect

does not substantially outweigh its probative value, and there was clear proof he

committed the prior bad acts from his own admission to law enforcement. See

State v. Putman, 848 N.W.2d 1, 9–10 (Iowa 2014) (holding that to be admissible,

evidence of prior bad acts must be (1) relevant to a legitimate, disputed factual

issue, such as identity, intent, or motive; (2) supported by clear proof the

individual against whom the evidence is offered committed the bad act or crime;
                                         15

and (3) be substantially more probative then prejudicial.); see also Iowa R. Evid.

5.401 (“‘Relevant evidence’ means evidence having any tendency to make the

existence of any fact that is of consequence to the determination of the action

more probable or less probable than it would be without the evidence.”).

       I concur with the majority’s opinion that Tyler’s conviction cannot be

upheld on an individual basis. The marshalling instruction for second-degree

murder simply provided that the jury must find Tyler assaulted Daughenbaugh

with malice aforethought and as a result of the assault, Daughenbaugh died.

The instruction did not permit the jury to conclude Tyler was guilty of second-

degree murder on the basis of setting “in motion a force or chain of events” that

“caused or resulted in the death” of Daughenbaugh, as the jury instruction for

attempted murder did.         Because Tyler’s assault alone did not cause

Daughenbaugh’s death, his conviction may not upheld unless he is responsible

on the theory of aiding and abetting or joint criminal conduct.

       In respect to the theories of aiding and abetting and joint criminal conduct,

I view the evidence differently than the majority. As testified by the medical

expert, Daughenbaugh died as the result of an injury more typically seen in child

abuse cases because children cannot protect themselves from such internal

injuries.   Here, the expert testified, in essence, that “but for” Tyler’s assault

causing Daughenbaugh to be knocked down and unconscious or nearly so, an

adult such as Daughenbaugh would have been able to protect himself from the

internal injuries causing his death. This expert testimony was undisputed. From

this evidence, the district court concluded there was substantial evidence Tyler’s
                                       16


assault was a substantial factor in a chain of events that culminated in

Daughenbaugh’s death.

      The majority states there was no evidence Tyler knew or reasonably could

know the others would assault Daughenbaugh after his blow. Yet Tyler knew

fights always happen. Further, Billings testified she could see what was going to

occur and, as a result, immediately began leaving the party. If a bystander had

such knowledge, it is reasonable to conclude Tyler also fully understood what

would transpire. After all, he had members of the crowd circling around him as

his confederates before he struck Daughenbaugh. All that was required to incite

or encourage the crowd was the first blow—much like a call to the cavalry to

“charge.” In fact, stepping aside while others began to assault Daughenbaugh

without any effort by Tyler to discourage or stop the vicious attack may also have

encouraged the onslaught.     Tyler’s first blow also aided the confederates in

putting Daughenbaugh in a compromised condition, and it may be said that Tyler

“associate[d] himself with the venture, that he participated in it as something he

wished to bring about, that he sought by his own action to make it succeed.” See

State v. Galvan, 297 N.W.2d 344, 349 (Iowa 1980).         There was substantial

evidence that Tyler should be held criminally responsible on the basis of the

aiding and abetting theory.

      Moreover, although Tyler may have walked away after landing the first

blow, he never sought a jury instruction on the defense of abandonment or

renunciation.   He also argues he should not be responsible for the crowd’s

assaultive conduct after his blow to Daughenbaugh, but he never sought a jury

instruction to be relieved of responsibility based upon a superseding intervening
                                          17


act. Acts caused by third parties are intervening acts but unless the act is a

superseding intervening act, the first party is not relieved of responsibility. 5 State

v. Fox, 810 N.W.2d 888, 892 (Iowa 2011). In short, the majority has concluded

Tyler’s act was a de minimis act notwithstanding undisputed medical evidence to

the contrary.

       The jury was also instructed on the theory of joint criminal conduct. The

only real issue regarding this theory is the requirement that Tyler “could have

reasonably expected the different crime of murder would be committed in

furtherance of the crime of assault.”      This instruction is aided by two other

instructions that informed the jury they “may but are not required to, conclude a

person intends the natural results of his acts” and “a person participates in a

crime beginning with the first act done toward the commission of the crime and

ending when a person has been arrested or has escaped from pursuers.” 6 Tyler

expected fights—he told law enforcement “it happens all the time.” The natural

consequence of assaultive conduct is injury and sometimes death.                Other

bystanders fearing for the safety of Daughenbaugh attempted to intervene—

including one who jumped on top of Daughenbaugh to protect him from the

blows. Similarly, at some juncture during the confederates’ assaultive onslaught,

Tyler could reasonably expect that the crime of murder would be committed as

the crime was ongoing and Tyler placed Daughenbaugh at risk of danger. In

Conner v. State, 362 N.W.2d 449, 456 (Iowa 1985), a case involving joint

criminal conduct, our supreme court stated, “We have long held, and it is general

5
  I do not suggest a different outcome of the case would have resulted if such jury
instructions were given.
6
  Jury instruction numbers 15 and 19.
                                         18


law of this nation, that an accessory is responsible for everything done by the

principal that is incidental to carrying out the illegal act—even though the injury

was greater than planned.” Since Conner, our supreme court has also noted that

criminal responsibility lies upon the theory of joint criminal conduct even when

the second crime is unplanned if it could “reasonably be expected to occur in

furtherance of the first one.” Satern, 516 N.W.2d at 844. I agree with the district

court and the jury that there was substantial evidence to support Tyler’s

conviction on the theory of aiding and abetting and joint criminal conduct and to

submit instructions to the jury on both theories.

        The majority also concludes there is insufficient evidence of malice. An

argument ensued between Tyler and Daughenbaugh from some contact between

them.    Evidence of bad feelings between the “defendant and the victim are

circumstances that may be used to support a finding of malice aforethought.”

State v. Buenaventura, 660 N.W.2d 38, 49 (Iowa 2003). Here, Tyler deliberately

struck Daughenbaugh with enough force to knock him to the ground while

surrounded with an army of confederates who Tyler could reasonably expect

would join into the fray. I have no difficulty in finding malice aforethought on such

facts. Then while the confederates assaulted Daughenbaugh to his death, Tyler

callously stood aside.

        There remains one issue to address. Because I have concluded there

was not substantial evidence to support the conviction based upon individual

liability, Tyler contends the conviction may not be upheld as the verdict was a

general verdict.
                                         19


       Because the jury was provided a general verdict and we cannot know

which theory of liability they relied upon, Tyler contends that if there is not

sufficient evidence to support a finding of guilt under any one of the theories, his

conviction must be reversed. The State contends the case law cited by Tyler

only applies if one or more of the theories should not have been submitted to the

jury due to legal error rather than insufficiency of the evidence.

       The State contends when the defendant challenges the general verdict on

the basis of insufficient evidence, the controlling case is Griffin v. United States,

502 U.S. 46 (1991). In that case, the United States Supreme Court reasoned:

       Jurors are not generally equipped to determine whether a particular
       theory of conviction submitted to them is contrary to the law—
       whether, for example, the action in question is protected by the
       Constitution, is time barred, or fails to come within the statutory
       definition of the crime. When, therefore, jurors have been left the
       option of relying upon a legally inadequate theory, there is no
       reason to think that their own intelligence and expertise will save
       them from that error. Quite the opposite is true, however, when
       they have been left the option of relying upon a factually inadequate
       theory, since jurors are well equipped to analyze the evidence.

Griffin, 502 U.S. at 59. The court held a general verdict need not be set aside

“because one of the possible bases of conviction was . . . unsupported by

sufficient evidence.” Id. at 56.

       Notwithstanding Griffin, our supreme court has continued its long-standing

position that juries need not agree on the same alternative where multiple

theories are instructed so long as there is substantial evidence in the record to

support each theory. State v. Corsi, 686 N.W.2d 215, 222 (Iowa 2004). And if

there is not substantial evidence for each theory, the defendant is entitled to a

new trial. See State v. Smith, 739 N.W.2d 289, 294–95 (Iowa 2007). Here, the
                                        20


jury was instructed that each juror was not required to agree as to “which theory

or fact leads to his or her verdict.”7 In the recent opinion State v. Thorndike, ___

N.W.2d            , 2015 WL 821549, at *5 (Iowa 2015), our supreme court

acknowledged that in State v. Tejeda, 677 N.W.2d 744, 754-55 (Iowa 2004), it

continued to recognize that “an instruction submitting an issue unsubstantiated

by evidence is generally prejudicial.” Ultimately, in Thorndike, the court upheld

the verdict, finding no prejudice, as the issue was raised in an ineffective

assistance of counsel context. 2015 WL 821549, at *6. Here, the issue is not

raised in the context of ineffective assistance of counsel, but I believe there was

no prejudice because the State’s own evidence clearly indicated that Tyler alone

did not inflict the fatal blow.   Further, there is no suggestion the State ever

contended Tyler’s blow by itself was the cause of Daughenbaugh’s death. Under

these facts, there was no prejudice, and the inclusion of the individual liability

issue was superfluous and should not entitle Tyler to a new trial. Although I

agree with the majority that Tyler may not be criminally liable on an individual

basis, I would affirm his conviction.




7
    Jury instruction number 20.
