                     IN THE COURT OF APPEALS OF IOWA

                                  No. 13-1072
                             Filed August 13, 2014

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

KENDALL LEE WARE,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Audubon County, James M.

Richardson, Judge.



      Kendall Ware appeals his conviction for homicide by operating a vehicle

while intoxicated, claiming the district court erred in refusing to instruct on

homicide by vehicle by reckless driving as a lesser included offense.

AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Shellie L. Knipfer, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney

General, and Francine O’Brien Andersen, County Attorney, for appellee.



      Considered by Potterfield, P.J., and Tabor and Bower, JJ.
                                         2



BOWER, J.

       Kendall Lee Ware appeals his conviction for homicide by vehicle by

operating while intoxicated, in violation of Iowa Code sections 321J.2 and

707.6A(1) (2011). Ware claims the district court erred in refusing to instruct on

homicide by vehicle by reckless driving as a lesser included offense. See Iowa

Code §§ 321.277, 707.6A(2)(a). We find homicide by vehicle by reckless driving

is not a lesser included offense of homicide by vehicle by operating while

intoxicated. Accordingly, the district court did not abuse its discretion in refusing

to submit Ware’s requested instruction. We affirm.

I.     Background Facts and Proceedings.

       On October 19, 2011, just before 11:25 p.m., Ware was involved in a

head-on collision at a curve on Highway 71. The collision resulted in the death of

Kristopher Crawley and serious injury to the driver of Crawley’s car and a

passenger in Ware’s car. Ware was stuck in his seat and rescue personnel had

to extricate him from his vehicle before transporting him to the hospital where he

consented to a blood test.          Ware’s blood sample showed an alcohol

concentration of .205.

       At trial, an accident reconstructionist testified Ware’s vehicle had crossed

the centerline and caused the collision, consistent with an “impaired or

distracted” driver. Ware claimed he only drank right after the accident, from a

bottle of Gatorade and vodka kept in his vehicle.

       A jury found Ware guilty of vehicular homicide by operating while

intoxicated. Ware appeals.
                                         3



II.    Scope and Standards of Review.

       Challenges to jury instructions are reviewed for errors at law. State v.

Frei, 831 N.W.2d 70, 73 (Iowa 2013). We review Ware’s related claim that the

trial court should have given his requested instruction for an abuse of discretion.

See id.

III.   Discussion.

       A.   Statutory Framework.       This case concerns Iowa Code section

707.6A. Originally, the statutory framework provided a class “D” felony occurred

       when [a] person unintentionally causes the death of another by
       either of the following means:
              a. Operating a motor vehicle while under the influence of
       alcohol or a drug or a combination of such substances or while
       having an alcohol concentration of .10 or more, in violation of
       section 321J.2.
              b. Driving a motor vehicle in a reckless manner with willful or
       wanton disregard for the safety of persons or property, in violation
       of section 321.277.

Iowa Code § 707.6A(1)(a), (b) (1987) (emphasis added).          As the legislature

amended section 707.6A over the years, it chose to make the penalty for death

caused by operating while intoxicated greater than the penalty for death caused

by driving in a reckless manner, but did not change the “operating” or “driving”

terminology. Compare Iowa Code § 707.6A(1), (2)(a) (2011) with Iowa Code

§ 707.6A(1)(a), (b) (1987); see also State v. Adams, 810 N.W.2d 365, 369 (Iowa

2012) (recognizing a statute does not “overturn long-established legal principles,

unless that intention is clearly expressed or the implication to that effect is

inescapable”). Thus, section 707.6A now provides:
                                            4



               (1) A person commits a class “B” felony when the person
       unintentionally causes the death of another by operating a motor
       vehicle while intoxicated, as prohibited by section 321J.2.[1]
               ....
               (2) A person commits a class “C” felony when the person
       unintentionally causes the death of another by . . .
               (a) driving a motor vehicle in a reckless manner with willful or
       wanton disregard for the safety of persons or property . . . in
       violation of section 321.277.[2]

Iowa Code § 707.6A(1), .6A(2)(a) (2011).

       B. Merits. Ware claims the district court erred in failing to instruct the jury

that homicide by vehicle by reckless driving is a lesser included offense of

homicide by vehicle by operating while intoxicated. Our supreme court has long

held the paramount consideration in determining whether a crime is a lesser

included offense of a greater crime is the “impossibility test.” State v. Miller, 841

N.W.2d 583, 588 (Iowa 2014). Under the impossibility test, courts determine

whether “the greater offense cannot be committed without also committing all

elements of the lesser offense.” Id. (quoting State v. Coffin, 504 N.W.2d 893,

894 (Iowa 1993)). Subsumed within the impossibility test and “an aid to applying

the impossibility test” is the “elements test”—the “usual method to ascertain

whether it is possible to commit the greater offense without committing the

lesser.” Id. (citing State v. Turecek, 456 N.W.2d 219, 223 (Iowa 1990)). The

elements test states:



1
  Iowa Code section 321J.2(1) defines the offense of “operating while intoxicated” as
“operat[ing] a motor vehicle . . . [w]hile under the influence of an alcoholic beverage or
other drug,” “[w]hile having an alcohol concentration of .08 or more,” or “[w]hile any
amount of a controlled substance is present” in the person's blood or urine.
2
  Iowa Code section 321.77 defines the offense of “reckless driving” as “[a]ny person
who drives any vehicle in such a manner as to indicate either a willful or a wanton
disregard for the safety of persons or property.”
                                              5



         [T]he lesser offense is necessarily included in the greater offense if
         it is impossible to commit the greater offense without also
         committing the lesser offense. If the lesser offense contains an
         element not required for the greater offense, the lesser cannot be
         included in the greater. This is because it would be possible in that
         situation to commit the greater without also having committed the
         lesser.

State v. Jeffries, 430 N.W.2d 728, 740 (Iowa 1988) (emphasis added). In using

this test, we look to the statutory elements rather than to the charge or the

evidence. Id.

         [I]n this case, “as in any case, [our] first task is to look at the elements of

the marshaling instructions actually submitted to the jury.” Miller, 841 N.W.2d at

590. “The elements of the crime described in the instruction are then compared

with the statutory elements of the proposed lesser included offense to ‘determine

if the greater offense can be committed without also committing the lesser

offense.’” Id. (quoting State v. Hickman, 623 N.W.2d 847, 850 (Iowa 2001)).

         The district court followed model Criminal Jury Instruction 710.13 in

instructing the jury on the elements of homicide by vehicle by operating while

intoxicated, a class “B” felony:




3
    Criminal Jury Instruction No. 710.1 provides:
         710.1 Homicide By Vehicle (Intoxication)—Elements. The State must
         prove both of the following elements of Homicide By Vehicle:
                 1. On or about the ____ day of ______, 20__, the defendant:
                         a. operated a motor vehicle while under the influence of
                 alcohol or a drug or a combination of such substances; or
                         b. operated a motor vehicle while having an alcohol
                 concentration of [.08] or more, or
                         c. operated a motor vehicle while any amount of a
                 controlled substance was present, as measured in the defendant's
                 blood or urine.
                 2. The defendant's act or acts set out in Element 1 unintentionally
         caused the death of (victim).
                                             6



             (1) On or about the 19th day of October, 2011 in the State of
       Iowa, Defendant Kendall Lee Ware:
             a. Operated a motor vehicle while under the influence of
       alcohol; and/or
             b. Operated a motor vehicle while having an alcohol
       concentration of .08 or more, and
             (2) Defendant Kendall Lee Ware’s act or acts set out in
       Element 1 unintentionally caused the death of Kristopher George
       Crawley.

(Emphasis added.)

       As discussed above, the statutory elements of homicide by vehicle by

reckless driving are: “A person commits a class ‘C’ felony when the person

unintentionally causes the death of another by . . . (a) driving a motor vehicle in a

reckless manner with willful or wanton disregard for the safety of persons or

property . . . in violation of section 321.277.”            Iowa Code § 707.6A(2)(a)

(emphasis added).

       When the marshaling instruction’s elements herein are juxtaposed with the

statutory elements, the threshold question becomes whether the elements of

“reckless driving” and “operating while intoxicated” share the identity necessary

to make vehicular homicide by reckless driving a lesser included offense of

vehicular homicide by operation while intoxicated. See Miller, 841 N.W.2d at

590. To make this determination, we first must define the meaning of the terms,

“reckless driving” and “operating while intoxicated.” See id. (noting if two terms




               If the State has proved both of the elements, the defendant is
       guilty of Homicide by Vehicle. If the State has failed to prove either of the
       elements, the defendant is not guilty of Homicide by Vehicle (and you will
       then consider the charge of __________ as explained in Instruction No.
       _____).
                                         7



“have entirely separate meanings” then the one crime “is not a lesser included

offense”).

       We find guidance in our supreme court’s resolution, in State v. Massick,

511 N.W.2d 384, 387 (Iowa 1994), on whether reckless driving is a lesser

included offense of operating while intoxicated.        The Massick court ruled

“reckless driving” and “operating while intoxicated” are not synonymous, stating:

              A comparison of the elements . . . shows that reckless
       driving is not a lesser included offense of operating while
       intoxicated. Reckless driving requires proof that the defendant
       actually drove a vehicle, that is, moved it. In contrast, operating
       while intoxicated only requires proof that the defendant operated a
       vehicle. Under our law, the two are not synonymous. For example,
       one can be convicted of operating while intoxicated without ever
       having moved the vehicle. See State v. Webb, 210 N.W. 751, 751-
       52 (1926) (operating while intoxicated conviction upheld where
       defendant was stopped by police just after starting the car but
       before driving down the road).
              In addition, reckless driving requires proof of a willful or
       wanton disregard for the safety of others or property. This is the
       recklessness element. Although driving under the influence is
       certainly reckless behavior, proof of recklessness is not an
       essential element of operating while intoxicated . . . . As we said,
       one can operate a motor vehicle while under the influence of
       alcohol without actually moving the vehicle. This obviates the
       recklessness element necessary for committing reckless driving
       because some movement must occur before recklessness can be
       shown. Several other courts have reached the same conclusion,
       employing the impossibility and . . . elements test in states having
       operating while intoxicated and reckless driving statutes similar to
       Iowa’s.

Massick, 511 N.W.2d at 387-88 (citations omitted); see also State v. Hopkins,

576 N.W.2d 374, 377 (Iowa 1998) (“Operating” is a term of art that means “the

immediate, actual physical control over a motor vehicle that is in motion and/or

has its engine running.”); State v. Murray, 539 N.W.2d 369, 369 (Iowa 1995) (“A

person may ‘operate’ a motor vehicle’ without ‘driving’ it.”); State v. Leonard, No.
                                          8



98-968, 1999 WL 668726, at *2 (Iowa Ct. App. Aug. 27, 1999) (holding a

defendant may be convicted of homicide by vehicle by operating while

intoxicated “even if he is acquitted of” homicide by vehicle by reckless driving).

       After a review of Massick, “reckless driving is not a lesser included offense

of operating while intoxicated,” therefore homicide by vehicle by reckless driving

is not a lesser included offense of homicide by vehicle by operating while

intoxicated.   See Massick, 511 N.W.2d at 387-88.          A change in the law, if

desired, is left to the legislature because “it is not the court’s role to reconfigure

the statute.” Adams, 810 N.W.2d at 371.

       In conclusion, applying the impossibility test, it is possible to commit the

greater offense of vehicular homicide by operating while intoxicated without

committing the lesser offense of vehicular homicide by reckless driving. As a

result, vehicular homicide by reckless driving is not a lesser included offense of

vehicular homicide by operating while intoxicated. Accordingly, the district court

did not abuse its discretion in refusing to submit Ware’s requested instruction,

and we affirm.

       AFFIRMED.

       Potterfield, P.J., concurs; Tabor, J., dissents.
                                          9



       TABOR, J. (dissenting)

       I respectfully dissent. I would reverse Ware’s conviction and remand for a

new trial. In my view, State v. Massick, 511 N.W.2d 384 (Iowa 1994) does not

control the question of lesser included offenses under the homicide by vehicle

statute. I also believe the district court’s refusal to give a lesser included offense

instruction on the reckless driving alternative of homicide by vehicle conflicts with

the causation analysis in State v. Adams, 810 N.W.2d 365 (Iowa 2012).

       Massick held reckless driving under Iowa Code section 321.277 is not a

lesser included offense of operating while intoxicated (OWI) under section 321J.2

because a defendant cannot be convicted of reckless driving without proof he or

she actually drove a vehicle, but a defendant can be convicted of OWI without

moving his or her vehicle. 511 N.W.2d at 387. The court also concluded OWI

lacked an element of recklessness because “some movement must occur before

recklessness can be shown.” Id. at 388. In other words, it is possible to commit

OWI without committing reckless driving.

       By contrast, it is impossible to commit homicide by vehicle under section

707.6A(1) (unintentionally causing a death by OWI) without also violating section

707.6A(2)(a) (unintentionally causing death by reckless driving).          A person

cannot unintentionally cause the death of another by operating a motor vehicle

while intoxicated without moving the vehicle. See Adams, 810 N.W.2d at 371

(holding the State had the burden under section 707.6A(1) to prove a factual

causal connection between “the defendant’s intoxicated driving and the victim’s

death”). It is evident from the following analysis in Adams that our supreme court
                                         10



considers operating to be synonymous with driving under the homicide by vehicle

statute:

              Although the statute does not impose a burden on the State
       to prove a specific causal connection between the defendant’s
       intoxication and the victim’s death, it does require proof of a factual
       causal connection between a specific criminal act—“intoxicated
       driving”—and the victim’s death. Put another way, the statute
       demands more than mere proof that the defendant’s driving caused
       the death of another person. A defendant may be found guilty of
       homicide by vehicle only if the jury finds beyond a reasonable doubt
       that his criminal act of driving under the influence of alcohol caused
       the victim’s death.

Id.

       Equating the two terms in the vehicular homicide context makes sense

because it would be impossible to cause the death of another by just starting the

engine of the vehicle. The operator must move the vehicle to be the factual

cause of the death.     Accordingly, section 707.6A(2)(a) does not require an

element of driving beyond that required in section 707.6A(1).

       Having determined that driving is an element of both offenses, the only

remaining question is whether the element of recklessness is necessarily

included in the crime of causing death by OWI. Our case law reveals that it is. In

State v. McQuillen, 420 N.W.2d 488, 489 (Iowa Ct. App. 1988), we held the trial

court was not required to submit a separate instruction on recklessness in an

involuntary manslaughter and OWI prosecution because “drunk driving is itself a

reckless act.” McQuillen relied on State v. Wullner, 401 N.W.2d 214, 217 (Iowa

Ct. App. 1986), where we said it would be “patently absurd and generally

redundant” to require the State to prove recklessness “independent of the drunk

driving.”   Under McQuillen and Wullner, drunken driving is a per se act of
                                        11



recklessness. See State v. Rohm, 609 N.W.2d 504, 513 (Iowa 2000) (“[W]hen

the activity or conduct itself constitutes recklessness, the necessity of proof of

recklessness is eliminated”). It would logically follow that unintentionally causing

the death of another by driving with willful or wanton disregard for the safety of

persons or property—which did not include operating in violation of section

321J.2—would be a lesser included offense of section 707.6A(1).

       Because section 707.6A(2)(a) does not require proof of any elements that

are not included in section 707.6A(1), and section 707.6A(1) requires proof of the

additional element of the driver being under the influence of intoxicants or having

a blood alcohol content of more than .08, section 707.6A(2)(a) is a lesser

included offense of section 707.6A(1). Ware’s jury should have received his

requested instruction on the reckless driving alternative of homicide by vehicle.

       Based on the evidence in the record, I would not find this instructional

error to be harmless. In this case, if given an instruction on the recklessness

alternative, it is plausible the jury would have reached a different verdict. See

State v. Turecek, 456 N.W.2d 219, 222 (Iowa 1990).
