               IN THE SUPREME COURT OF IOWA
                                No. 07–2068

                          Filed September 24, 2010


STATE OF IOWA,

      Appellee,

vs.

KYLE ANTHONY MARIN,

      Appellant.


      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Linn County, Robert E.

Sosalla, Judge.



      A defendant requests further review of a court of appeals decision

affirming his convictions for first-degree murder. DECISION OF COURT

OF APPEALS VACATED IN PART AND AFFIRMED IN PART; DISTRICT

COURT JUDGMENT AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Dennis D.

Hendrickson, Assistant Appellate Defender, for appellant.



      Thomas J. Miller, Attorney General, Cristen Douglass (until

withdrawal) and Elisabeth Reynoldson, Assistant Attorneys General,

Harold Denton, County Attorney, and Jason Burns, Assistant County

Attorney, for appellee.
                                     2

WIGGINS, Justice.

      Although the defendant raised numerous issues on appeal, in the

exercise of our discretion we will only consider whether involuntary

intoxication is a complete defense to a crime.      The court of appeals

decided the merits of this issue.        Because the defendant failed to

preserve error as to whether involuntary intoxication is a complete

defense to any criminal liability and the jury instructions as given fairly

state the law as applied to the facts of this case, we vacate that part of

the court of appeals decision concerning the issue of involuntary
intoxication and affirm the judgment of the district court.

      I. Background Facts and Proceedings.

      On or about April 23, 2006, a father entered an apartment and

found his eighteen-year-old daughter and another relative‟s body lying

lifeless inside. The father immediately went outside and called 911 on

his cell phone.    Responding officers did a protective sweep of the

apartment and discovered the victims‟ bodies, which were completely

naked, as well as large pools of blood in the bathroom and blood

elsewhere throughout the apartment.          One of the officers noticed

instruments on the bathroom vanity that did not appear to belong in a

bathroom. It was evident from the scene that both victims had suffered

trauma and had numerous visible wounds on their bodies. Eventually

medical personnel arrived, checked the victims‟ vital signs, and

pronounced them dead.

      Later that same day, Kyle Marin walked into the lobby area of the

Linn County Correctional Center. Debra Collins-Gallo was working that

night behind a window in the lobby area as a duty officer. Collins-Gallo
observed Marin in the lobby as she was helping some other individuals.

After Marin made eye contact with her several times, Collins-Gallo asked
                                    3

him if she could help him.     Marin then approached the window and

stated, “My name is Kyle Marin, and I‟m here to turn myself in on two

murders.” Collins-Gallo was not sure if she understood Marin correctly

so she asked him again what he said, to which Marin replied, “I‟m

turning myself in for two murders.” Collins-Gallo then walked back to

sergeant John Davidson‟s office and informed him a person in the lobby

named Kyle Marin wanted to turn himself in for two murders. Davidson

told Collins-Gallo to call the Cedar Rapids Police Department (CRPD)

immediately and then went out to the lobby.
      Shortly thereafter, three officers from the CRPD arrived.   After a

discussion with Marin, the officers transported him to the CRPD

headquarters. Once Marin arrived at the headquarters, the officers took

him to the detective bureau and turned him over to the investigators.

After a detective interviewed Marin, he provided detailed facts confessing

his involvement in the deaths of the two victims.

      On April 23 evidence was seized from the crime scene, including

but not limited to, blood samples, a hammer, a screwdriver, as well as a

number of knives and other utensils. On April 24 a search warrant was

executed on Marin‟s residence. On May 12 Marin was charged with two

counts of first-degree murder, to which he pleaded not guilty.

      Trial commenced on October 22, 2007. On October 30 the district

court held a hearing outside the presence of the jury with regard to

whether or not involuntary intoxication is a recognized defense in Iowa

and, if so, what the enumerated elements of the defense should be. In

support of its position, the defense submitted the following proposed

instruction with regard to involuntary intoxication:

           “Involuntary intoxication” means a mental condition
      which does not allow the person to form a premeditated,
                                      4
      deliberate, specific intent to kill, which are elements of the
      State‟s burden of proof on the charge of First Degree Murder.

            “Intoxication” is a state in which a person is affected
      temporarily with diminished control over the physical and/or
      mental powers, or is excited or stupefied by alcohol or a
      drug, or a combination thereof, to the point of frenzy, or to
      the point where physical or mental control is markedly
      diminished.

            Intoxication is involuntary when it results from:

            1. Fraud, trickery, or duress of another; or

            2. Accident or mistake on his own part; or

            3. A pathological condition; or

            4. Ignorance    as   to       the   effects   of   prescribed
            medication.

            You should determine from the evidence if the
      defendant was capable of premeditating, deliberating, and
      forming a specific intent to kill.

             If you have a reasonable doubt the defendant was
      capable of acting deliberately, with premeditation, and the
      specific intent to kill, then the defendant cannot be guilty of
      First Degree Murder. You should then consider the lesser
      included charges.

      After hearing arguments from both sides, the court told the parties

it would not give the jury a separate instruction with regard to
involuntary intoxication. Instead, the court gave the “intoxication as a

defense” instruction contained in the Iowa State Bar Association‟s

criminal instruction manual, which makes no distinction between

voluntary and involuntary intoxication. The instruction provided:

             The defendant claims he was under the influence of
      intoxicants and/or prescription drugs at the time of the
      alleged crime. The fact that a person is under the influence
      of intoxicants and/or prescription drugs does not excuse nor
      aggravate his guilt.

           Even if a person is under the influence of an intoxicant
      and/or prescription drug, he is responsible for his act if he
      had sufficient mental capacity to form the specific intent
      necessary to the crime charged or had the specific intent
                                      5
      before he fell under the influence of the intoxicant and/or
      prescription drug and then committed the act. Intoxication
      is a defense only when it causes a mental disability which
      makes the person incapable of forming the specific intent.

      Before closing arguments, the district court held a hearing with the

parties to review its proposed jury instructions. The defense objected to

the instructions due to the court‟s failure to include its requested

instruction pertaining to involuntary intoxication. The court overruled

the objection.

      The jury found Marin guilty of first-degree murder for both victims‟

deaths. We transferred the case to the court of appeals. The court of

appeals affirmed the district court‟s rulings and held the district court

did not err in denying Marin‟s proposed jury instruction on involuntary

intoxication because substantial evidence did not support the court

giving the instruction.     Marin filed an application for further review,

which we granted.

      II. Issues.

      Marin raises three issues on appeal.          The first issue raised

concerns   the   jury   instruction   regarding   the   element   of   malice

aforethought. The second issue asks us to suppress certain statements
Marin made to the police and the evidence seized through the execution

of a search warrant as the fruit of the poisonous tree. The third issue

deals with the proposed jury instruction on involuntary intoxication.

      On further review, we have the discretion to review any issue

raised on appeal. Hills Bank & Trust Co. v. Converse, 772 N.W.2d 764,

770 (Iowa 2009).    In the exercise of our discretion, we choose only to

address the issue dealing with the proposed jury instruction on

involuntary intoxication.    As to the other two issues raised in Marin‟s
brief, we will let the court of appeals opinion stand as the final decision
                                     6

in this appeal. State v. Effler, 769 N.W.2d 880, 883 (Iowa), cert. denied,

____ U.S. ____, 130 S. Ct. 1024, 175 L. Ed. 2d 627 (2009).

      III. Standard of Review.

      We review challenges to jury instructions for correction of errors at

law. State v. Heemstra, 721 N.W.2d 549, 553 (Iowa 2006); State v. Rohm,

609 N.W.2d 504, 509 (Iowa 2000); see also Iowa R. App. P. 6.907. “We

review the related claim that the trial court should have given the

defendant‟s requested instructions for an abuse of discretion.” Summy v.

City of Des Moines, 708 N.W.2d 333, 340 (Iowa 2006). Error in giving or
refusing to give a particular instruction warrants reversal unless the

record shows the absence of prejudice. State v. Spates, 779 N.W.2d 770,

775 (Iowa 2010). “When the error is not of constitutional magnitude, the

test of prejudice is whether it sufficiently appears that the rights of the

complaining party have been injuriously affected or that the party has

suffered a miscarriage of justice.” State v. Gansz, 376 N.W.2d 887, 891

(Iowa 1985).

      IV. Analysis.

      Marin argues we should decide if involuntary intoxication is a

complete defense to any crime he may have committed. At common law,

if involuntary intoxication caused a defendant to become temporarily

insane, the involuntary intoxication was recognized as a complete

defense to any criminal liability.   City of Minneapolis v. Altimus, 238

N.W.2d 851, 855–56 (Minn. 1976). When the legislature enacted Iowa‟s

Criminal Code, it did not distinguish between voluntary and involuntary

intoxication. See, e.g., Iowa Code § 701.5 (2005). Instead, in regards to

intoxication the Code provides:

            The fact that a person is under the influence of
      intoxicants or drugs neither excuses the person‟s act nor
      aggravates the person‟s guilt, but may be shown where it is
                                     7
        relevant in proving the person‟s specific intent or
        recklessness at the time of the person‟s alleged criminal act
        or in proving any element of the public offense with which
        the person is charged.
Id.

        We have never decided if a defendant can use involuntary

intoxication as a complete defense to his or her criminal liability. We left

the question unresolved in one of our decisions because substantial

evidence did not support the submission of a temporary insanity by

involuntary intoxication instruction.    State v. Lucas, 368 N.W.2d 124,

127–28 (Iowa 1985). In this appeal, we do not reach this issue because

Marin never requested an instruction including a statement that

involuntary intoxication is a complete defense to any crime he may have

committed, and he never objected to the instruction as given on the

grounds it failed to state involuntary intoxication is a complete defense to

any crime he may have committed. See State v. Buckner, 214 N.W.2d

164, 169 (Iowa 1974) (holding a defendant does not preserve error when

he fails to request an instruction containing his legal issue or fails to

object to the instructions given for not containing his legal issue).       In

fact, in a discussion with the court on the jury instructions, Marin‟s
counsel acknowledged he understood that involuntary intoxication is not

a complete defense to any crime Marin may have committed. Instead,

his requested instruction only asserts involuntary intoxication would

negate “premeditated, deliberate, specific intent to kill, which are

elements of the State‟s burden of proof on the charge of First Degree

Murder.”

        The requested instruction further stated, “If you have a reasonable

doubt     the   defendant   was   capable   of   acting   deliberately,   with
premeditation, and the specific intent to kill, then the defendant cannot

be guilty of First Degree Murder. You should then consider the lesser
                                     8

included charges.”   The requested instruction never informed the jury

that involuntary intoxication was a complete defense to any other crimes

Marin may have committed by taking the victims‟ lives, including the

lesser-included crimes of first-degree murder.    It only advised the jury

that Marin‟s involuntary intoxication could negate his state of mind with

regard to the charge of first-degree murder.

      The instruction given by the court allowed the jury to consider

Marin‟s intoxication in regards to the element of specific intent.      The

court instructed the jury that specific intent was an element of the crime
of first-degree murder. The jury returned a verdict finding Marin guilty

of two counts of first-degree murder. Inherent in the verdict is a finding

that Marin acted with specific intent to kill.     This means under the

instructions as given by the court, Marin‟s intoxication, whether

voluntary or involuntary, did not negate the state of mind necessary to

find Marin guilty of first-degree murder.

      The rules pertaining to jury instructions in civil cases apply equally

to the trial of criminal cases. Iowa R. Crim. P. 2.19(5)(f). Consequently,

the court is required to “instruct the jury as to the law applicable to all

material issues in the case . . . .” Iowa R. Civ. P. 1.924. Moreover, the

court is required to give a party‟s requested instruction so long as it

“ „states a correct rule of law having application to the facts of the case

and when the concept is not otherwise embodied in other instructions.‟ ”

Summy, 708 N.W.2d at 340 (emphasis removed) (quoting Herbst v. State,

616 N.W.2d 582, 585 (Iowa 2000)); accord State v. Proctor, 585 N.W.2d

841, 843 (Iowa 1998). In doing so, the court is not required to give any

particular form of an instruction; rather, the court must merely give
instructions that fairly state the law as applied to the facts of the case.

Graber v. City of Ankeny, 616 N.W.2d 633, 642 (Iowa 2000).
                                      9

      Finally, we see no difference in the outcome of the case even if the

court had given the instruction requested by Marin.            The requested

instruction and the one given by the court informed the jury it could use

Marin‟s intoxication, whether voluntary or involuntary, to negate the

state of mind necessary to be convicted of first-degree murder.         The

instruction given by the court on intoxication only included Marin‟s state

of mind to form the specific intent to kill. Marin‟s requested instruction

included acting deliberately and with premeditation in addition to

specific intent as the states of mind Marin‟s intoxication could negate.
However, in a separate instruction, the court instructed the jury on

diminished responsibility.

      The diminished responsibility instruction allowed the jury to find

Marin suffered from a mental condition that would not allow him to form

a premeditated, deliberate, specific intent to kill. This instruction also

provided that if the jury found Marin had a mental condition that would

not allow him to form a premeditated, deliberate, specific intent to kill,

the jury cannot find him guilty of first-degree murder, but it should then

consider the lesser-included offenses.      The court gave the diminished

responsibility instruction because the record contained evidence that

Marin‟s mental condition caused by his intoxication would not allow him

to form a premeditated, deliberate, specific intent to kill.

      Jury instructions must be read in their entirety and not piecemeal.

Hagenson v. United Tel. Co. of Iowa, 209 N.W.2d 76, 83 (Iowa 1973). The

court instructed the jury that Marin‟s intoxication could prevent him

from forming a premeditated, deliberate, specific intent to kill.       The

instructions given by the court also instructed the jury that, if they found
Marin‟s intoxication prevented him from forming a premeditated,

deliberate, specific intent to kill, its findings only went to the charge of
                                       10

first-degree murder, not the lesser-included charges.                Thus, the

instructions given by the court contained the same law Marin requested

in his proposed instruction.      Consequently, under the record made in

this case, the court did not err in refusing to substitute the proposed

instruction for the one it submitted to the jury.

         V. Disposition.

         We vacate that part of the court of appeals decision dealing with

Marin‟s involuntary intoxication claim, and find Marin did not preserve

the issue as to whether involuntary intoxication is a complete defense to
any criminal liability. With respect to the objection that was made, we

hold the jury instructions as given fairly state the law as applied to the

facts of this case.     Therefore, we vacate the decision of the court of

appeals in part, affirm it in part, and affirm the judgment of the district

court.

         DECISION OF COURT OF APPEALS VACATED IN PART AND

AFFIRMED IN PART; DISTRICT COURT JUDGMENT AFFIRMED.

         All justices concur except Streit, J., who takes no part.
