                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-2023
                              Filed March 23, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

STEPHEN ALLEN BOEDING,
     Defendant-Appellant.
________________________________________________________________


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

Judge.



      Stephen Boeding appeals his conviction for murder in the first degree.

AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Nan Jennisch, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Alexandra Link and Kelli Huser,

Assistant Attorneys General, for appellee.




      Heard by Tabor, P.J., and Bower and McDonald, JJ.
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BOWER, Judge.

          Stephen Boeding appeals his conviction for murder in the first degree, in

violation of Iowa Code sections 707.1 and 707.2 (2013). Boeding claims there is

insufficient evidence to support his conviction for murder in the first degree

because the State failed to prove he acted with malice aforethought and

premeditation when he killed Kevin O’Connell. For the reasons stated below, we

affirm.

I.        BACKGROUND FACTS AND PROCEEDINGS

          We incorporate the district court’s statement of the factual background:

                   Stephen Boeding, (hereinafter, “Boeding”) and the decedent,
          Kevin O’ConnelI (hereinafter, “O’Connell”) had been friends since
          meeting in Country Oaks [(a substance abuse program)] in 2007.
          The evidence supports that they were also intermittent sexual
          partners. On or about May 18, 2013, Boeding sent text messages
          to O’Connell accusing him of molesting him while he was passed
          out and indicating that he should press charges. Boeding also
          accused O’Connell of taking pictures of him while he was passed
          out. . . . On May 24, 2013, Boeding agree[d] to come to
          O’Connell’s apartment . . . . After Boeding arrive[d], O’Connell and
          he [hung] out together and drank alcohol. At some point on May
          25, 2013, Boeding strangled O’Connell causing O’Connell’s death.
                   After strangling O’Connell, Boeding remained in O’Connell’s
          apartment for most of the day “stewing” on what to do next.
          Ultimately, Boeding arranged O’Connell’s body, tucked a blanket
          around him, and then left to check himself into the Salvation Army
          facility in Davenport, Iowa. This occurred on May 27, 2013.
                   On June 6, 2013, Michelle Schiltz, O’Connell’s landlord,
          went to O’Connell’s apartment. Ms. Schiltz testified that she had
          been unable to reach O’Connell by phone. When she arrived at his
          door, she went to slide a note between the door and the doorjamb
          when she noticed a smell that she recognized as the smell of a
          decaying body. Ms. Schiltz called her husband and also called
          911. The door to O’Connell’s apartment had a chain lock that was
          locked from the inside. A separate sliding patio door was not
          checked. The Davenport Police Department used bolt cutters to
          cut the chain. When officers arrived, they searched the apartment
          and discovered O’Connell’s decomposing body in his bedroom. At
          that time, foul play was not suspected and the matter was not
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investigated as a homicide. O’Connell was ultimately buried in
Springfield, Illinois on June 12, 2013.
       In mid-August of 2013, Stephen Boeding elected to have a
conversation with his father-in-law, Laurence Weimer, Sr.,
(hereinafter, “Weimer”). . . . On the day in question, Boeding had
been assisting Weimer in the remodeling project. After working on
plastering, they took a break on the front porch. Boeding came out
with an obituary of O’Connell’s death and handed it to Weimer, told
him he was responsible for the death, and proceeded to explain
what had happened. Boeding stated, “I’m the reason why he is
gone, why he is dead.” Weimer testified as follows regarding what
Boeding said, “Well, he said that he had been drinking and passed
out on the bed face down, and he had awoken to O’Connell trying
to penetrate him from the back, and he reached up and grabbed
him and threw him down on the bed and proceeded to choke him,
and then he said he blacked out, and when he (Boeding) started
coming to, he seen some movement of his (O’Connell’s) eyes, so
he grasped him harder and choked him harder to make sure he
was dead.” Boeding further admitted to poking at O’Connell’s eye
to make sure he was dead. Boeding told him that after this
happened he stayed in the apartment and stewed for a while, but
further informed Weimer that he was not worried about getting
caught because the police would not be able to “prove nothing”
because the body sat in the apartment for a week and deteriorated
....
       After Weimer told Detective Thomas [(of the Davenport
Police Department)] about his conversation with Boeding, Detective
Thomas arranged a meeting with Boeding. Boeding told Detective
Thomas that he was at O’Connell’s house on May 25, 2013.
Boeding further stated that he passed out and woke up with his
“anus hurting” and a rope around his neck. Boeding admitted
grabbing O’Connell by the throat but claims he blacked out and that
when he came to Kevin was not moving.
       Boeding later met with Dr. Kirk Witherspoon, a psychologist
who is licensed in Illinois and Iowa. Boeding admitted to Dr.
Witherspoon that he might have killed O’Connell because when he
woke up O’Connell was dead and his hands were near O’Connell’s
throat. Boeding said nothing about anal intercourse or attempted
anal intercourse to Dr. Witherspoon. Dr. Witherspoon opined that
Boeding was not able to form the specific intent to kill. Dr.
Witherspoon believes Boeding has a somnambulism/automatism/
sleepwalking defense.
       Boeding was also evaluated by Dr. Michael Taylor. Dr.
Taylor is a licensed psychiatrist. Boeding did not tell Dr. Taylor that
he was acting in self-defense. Dr. Taylor interpreted Boeding’s
comments to him as Boeding was angry to find O’Connell on top of
him trying to have anal intercourse. Dr. Taylor opined that Boeding
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       was able to deliberate, premeditate and form the specific intent to
       kill.

       The State charged Boeding with murder in the first degree, in violation of

Iowa Code sections 707.1 and 707.2. Boeding waived his right to a jury trial and

raised the defenses of justification and diminished responsibility. After a bench

trial, the district court found Boeding guilty of murder in the first degree and

sentenced him to life in prison.

II.    STANDARD OF REVIEW

       We review sufficiency-of-the-evidence challenges for correction of errors

at law.   State v. Turner, 630 N.W.2d 601, 610 (Iowa 2001).          “Evidence is

substantial if it would convince a rational factfinder that the defendant is guilty

beyond a reasonable doubt.”        State v. Mitchell, 568 N.W.2d 493, 502 (Iowa

1997). In making this determination, we view the evidence in the light most

favorable to the State, including all legitimate inferences and presumptions that

may be fairly and reasonably deduced from the evidence. State v. Tucker, 810

N.W.2d 519, 520 (Iowa Ct. App. 2012).

III.   MERITS

       Boeding claims there is insufficient evidence to support his conviction for

murder in the first degree because the State failed to prove he acted with malice

aforethought and premeditation when he killed O’Connell. Iowa Code sections

707.1 and 707.2 provide that murder in the first degree is committed when “[a]

person kills another person with malice aforethought either express or implied”

and acted “willfully, deliberately, and with premeditation.” We will discuss each

challenged element separately.
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      A.     Malice Aforethought

      Boeding claims he acted in a rage of passion or anger (in contradiction to

a finding of malice aforethought) when he killed O’Connell. “Malice aforethought

is a fixed purpose or design to do physical harm to another that exists before the

act is committed. It does not have to exist for any particular length of time.”

State v. Myers, 653 N.W.2d 574, 579 (Iowa 2002). “Because this element is a

state of mind, circumstantial evidence is generally used to prove malice.” State

v. Buenaventura, 660 N.W.2d 38, 49 (Iowa 2003). Evidence of bad feelings or

quarrels between the defendant and the victim are circumstances that may be

used to support a finding of malice aforethought.      See State v. Kellogg, 263

N.W.2d 539, 542 (Iowa 1978).

      In finding Boeding acted with malice aforethought, the district court relied

on the testimony of Weimer (who the court found to be highly credible), the

relationship between Boeding and O’Connell, and Boeding’s act and method of

killing O’Connell. The text messages sent between O’Connell and Boeding show

Boeding was conflicted about their relationship and angry with O’Connell for

molesting him and taking nude pictures of him.        The messages also show

Boeding’s relationship with O’Connell was causing problems in Boeding’s

marriage.    Further, the particularly brutal nature of the killing—strangling

O’Connell twice and poking his eye to be certain of death—support the fact

Boeding acted with malice aforethought.      Dr. Denton, a forensic pathologist,

testified O’Connell died of strangulation and the force applied to his neck causing

fractures to his larynx would be characterized as “severe.” Additionally, Boeding
                                          6


told Weimer that after strangling O’Connell, “[h]e noticed eye movement, so he

chose to choke [O’Connell] tighter to make sure that he was dead.”

       Upon our review, we find the district court did not err; substantial evidence

supports the malice aforethought requirement for murder in the first degree.

       B.      Deliberation and Premeditation

       Boeding claims the State failed to prove he acted deliberately and with

premeditation in killing O’Connell. Additionally, Boeding claims because of his

long-term alcohol use and “high” level of intoxication at the time of the killing, he

was unable to form the specific intent.

       “Premeditation may be shown through evidence of (1) activity by the

defendant to plan the killing, (2) motive based on the relationship between the

defendant and the victim, or (3) the nature of the killing . . . .” Buenaventura, 660

N.W.2d at 48.        “[T]he law does not require any minimum amount of time to

premeditate and a few minutes are certainly adequate.” Id. at 49. “Premeditation

[may be] shown by the nature of the crime and the defendant’s actions

afterwards.”   Id.    To establish the defense of intoxication for the purpose of

negating specific intent, Boeding must “produce substantial evidence to support”

the defense. See State v. Guerrero Cordero, 861 N.W.2d 253, 260 (Iowa 2015).

“[T]he defense is not sustained by mere evidence of intoxication.” Id. at 261.

       While there is a lack of evidence showing Boeding extensively planned the

killing of O’Connell, a rational factfinder could conclude Boeding had “a sufficient

opportunity to weigh in his mind, contemplate, and consider the consequences”

before killing O’Connell. See State v. Wilkens, 346 N.W.2d 16, 20 (Iowa 1984).

As stated previously, evidence of Boeding strangling O’Connell twice to be
                                        7


certain he was dead and evidence concerning Boeding’s relationship with

O’Connell supports the premeditation finding by the trial court. Finally, Boeding

has not presented substantial evidence to demonstrate he lacked the mental

ability “to act with the required specific purpose,” or to support an intoxication

defense.

       We find the district court did not err in finding the State presented

substantial evidence to support the premeditation requirement of murder in the

first degree.

IV.    CONCLUSION

       The evidence is sufficient to show Boeding deliberately, intentionally, and

with malice aforethought killed O’Connell. Accordingly, the conviction for murder

in the first degree is affirmed.

       AFFIRMED.
