                   IN THE SUPREME COURT OF IOWA
                                No. 07–0309

                         Filed September 17, 2010


STATE OF IOWA,

      Appellee,

vs.

RON JAREL MILLBROOK,

      Appellant.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Scott County, Mary E. Howes,

Judge.



      Defendant seeks further review of court of appeals’ decision affirming

his conviction of first-degree murder, claiming the district court erroneously

instructed the jury that it could convict the defendant under the felony-

murder rule.      DECISION OF COURT OF APPEALS AND JUDGMENT OF

DISTRICT COURT AFFIRMED.



      Lauren M. Phelps, Bettendorf, for appellant.



      Thomas J. Miller, Attorney General, Bridget A. Chambers, Assistant

Attorney General, Michael J. Walton, County Attorney, and Jerald L.

Feuerbach, Assistant County Attorney, for appellee.
                                             2

TERNUS, Chief Justice.

      The defendant, Ron Millbrook, appeals his conviction of first-degree

murder, contending the trial court erred when it submitted a felony-murder

instruction to the jury. Relying on the merger doctrine adopted in State v.

Heemstra, 721 N.W.2d 549 (Iowa 2006), Millbrook claims there was not

sufficient evidence of his commission of a felony independent of the act

resulting in the victim’s death. His appeal was transferred to the court of

appeals, where his conviction was affirmed. Upon our further review of his

claim of error, we affirm.

      I. Background Facts and Proceedings.

      On August 19, 2006, at approximately 10:30 p.m., a drive-by shooting

in Davenport, Iowa, claimed the life of an innocent bystander, nineteen-year-

old Vincelina Howard. Howard, along with twenty to thirty other persons,

was attending an outdoor party at her grandmother’s house when a minivan,

driving by slowly, opened fire on the partygoers. 1 Howard received a fatal

wound to her neck and died a short time later at a nearby hospital. The

defendant subsequently confessed that he was one of the occupants of the

van and had participated in the shooting.

      Evidence presented at trial, including the defendant’s full account of
the shooting, provided the following details of these events. Millbrook and

three other individuals, Don White, Jr., Terrell Lobley, and Rasheem Bogan,

were all residents of Rock Island, Illinois, a community located across the

Mississippi River from Davenport. In the early evening of August 19, 2006,

Millbrook attended a memorial walk in honor of a friend who had been killed

in a drive-by shooting four months earlier. After Millbrook returned home

from the memorial walk, he, Bogan, Lobley, and White decided to ride


      1We   will refer to the victim’s grandmother’s house as the Howard residence.
                                       3

around before going to a party. They used a minivan that the defendant had

borrowed from another acquaintance. Bogan drove the vehicle; Lobley was

in the front passenger seat; White was seated behind the driver in the middle

bench seat; Millbrook sat next to White. All four individuals were armed.

      At some point during the drive, a decision was made to go to the Iowa

side of the river and look for Stevie West and another man. It was believed

these two persons had been involved in a shooting at a Rock Island club the

evening before.    As Millbrook and his friends crossed the bridge into

Davenport, they spotted West traveling in a vehicle ahead of them.      They

followed West’s vehicle to the vicinity of a Super America gas station next

door to the Howard house. Driving by the residence, they noticed the party

going on in the yard.

      Bogan circled around the block and drove slowly down the alley

adjacent to the Howard residence. As they proceeded down the alley, White

shouted, “There they go.”     At White’s urging, Millbrook then opened the

minivan’s sliding door, and all four of the men in the van began firing their

guns out of the passenger side of the vehicle in the direction of the

partygoers.    Millbrook’s gun was fully loaded with seven rounds of

ammunition. He fired the weapon until it was empty. When the minivan

reached the end of the alley, the men stopped shooting, and Bogan made a

left turn onto the street. As they turned, Bogan thought he saw West at the

gas station, and he fired shots out of the driver’s side of the vehicle. Two

shots hit a bystander’s car that was being fueled at the station.

      As the shooters escaped from the scene, the minivan hit a bump in the

road and became disabled. The men then fled on foot, their exit from the

vehicle being captured on a security tape positioned in the area. Although

all four men took their guns with them, Millbrook left his cell phone in the

vehicle.
                                      4

      At the scene of the shooting, partygoers had gotten down on the

ground when the shooting began.       Witnesses testified there were a lot of

shots, a short break in the shooting, and then some more shots.      When the

shooting stopped, partygoers realized Howard had been shot and was

unresponsive. Efforts to revive her were unsuccessful, and she died at the

hospital a short time later.

      A forensic pathologist who examined the victim’s body testified that a

single bullet entered her right shoulder, exited at the top of her shoulder,

and re-entered the right side of her neck, hitting the victim’s carotid artery.

The bullet then entered the victim’s mouth cavity. Although there was not a

second exit wound, the bullet was not found in the victim’s mouth.         The

forensic pathologist testified the victim probably coughed the bullet out. The

cause of death was hemorrhagic shock caused by the neck injuries.

      Investigators later estimated, based on shell casings and bullets found

at the scene and in the minivan, that approximately twenty shots were fired

in the vicinity of the Howard residence. These shots came from four different

guns: a Rossi .38 caliber revolver, a Springfield .45 caliber pistol, a 9 mm.

revolver, and a Colt Combat Commander .45 caliber semiautomatic pistol.

The defendant admitted he used the Springfield .45 caliber pistol. This gun

and the Rossi .38 caliber revolver were later found in the trunk of a car

parked in front of the defendant’s house.     Fingerprints on the Springfield

pistol also linked the defendant to that weapon.

      Only two bullets were found in the Howard yard itself; both had been

fired from Millbrook’s gun. One of these bullets was found in a pool of the

victim’s blood.

      The State charged the defendant, White, Lobley, and Bogan with

various offenses arising from Howard’s murder. After several amendments

to the trial information, Millbrook was eventually charged with first-degree
                                       5

murder and intimidation with a dangerous weapon with intent.              See Iowa

Code §§ 707.1, 707.2, 708.6 (2005).

      At Millbrook’s subsequent trial, the district court submitted a felony-

murder instruction to the jury over defense counsel’s objection. Under this

instruction, the jury could find the defendant guilty of first-degree murder if,

among other elements, it found “[t]he defendant or a person he aided and

abetted . . . was participating in the offense of Intimidation with a Dangerous

Weapon With Intent” at the time of Howard’s murder.                  The defendant

objected to this instruction on the ground that it was improper in light of

this court’s decision in Heemstra.      In Heemstra, we held conduct that

constitutes the felony for purposes of the felony-murder rule must be

separate and distinct from the act causing the victim’s death. 721 N.W.2d at

554, 558–59.

      The   jury   convicted   the   defendant   of   first-degree    murder   and

intimidation with a dangerous weapon with intent.                We transferred

Millbrook’s subsequent appeal to the court of appeals. That court affirmed

the defendant’s convictions. We granted further review to address the issue

of whether the lower courts erred in their application of the felony-murder

rule. The court of appeals’ opinion stands as the final decision with respect

to the other issues raised on appeal. Everly v. Knoxville Cmty. Sch. Dist., 774

N.W.2d 488, 492 (Iowa 2009).

      II. Scope of Review.

      We review challenges to jury instructions for the correction of errors of

law. State v. Spates, 779 N.W.2d 770, 775 (Iowa 2010). Here, the defendant

claims the evidence does not support a finding that there was a felonious act

independent of the conduct that resulted in Howard’s death. In determining

whether there is sufficient evidence to support submission of the felony-
                                          6

murder instruction to the jury, we view the evidence in a light most favorable

to the State. State v. Lawler, 571 N.W.2d 486, 490–91 (Iowa 1997).

      III. Heemstra Holding.

      We begin our consideration of the defendant’s challenge to the court’s

submission of the felony-murder alternative of first-degree murder with a

review of the Heemstra case.         In Heemstra, the defendant and the victim

were engaged in an argument when the defendant retrieved a rifle from his

vehicle and shot the rifle once, striking and killing the victim. 721 N.W.2d at

551. In Heemstra’s later trial for murder, the trial court instructed the jury

on two alternatives for first-degree murder: (1) premeditated murder and (2)

felony murder. Id. at 552. To convict the defendant, the jury was required

to   find   either   that   “[t]he    defendant   acted   willfully,     deliberately,

premeditatedly, and with specific intent to kill” the victim or that the

defendant was participating in the felony of willful injury.           Id. at 552–53.

The jury convicted the defendant under a general verdict, and Heemstra

appealed. Id. at 551.

      On appeal, this court concluded the trial court had erred in submitting

the felony-murder alternative of first-degree murder. Id. at 558–59. We held

the predicate felony for felony murder must be independent of the assault

that causes the victim’s death.        Id. at 558.   We relied, in part, on the

following explanation for this rule given by the New York Court of Appeals:

      “[I]t is not enough to show that the homicide was felonious, or
      that there was a felonious assault which culminated in
      homicide. Such a holding would mean that every homicide, not
      justifiable or excusable, would occur in the commission of a
      felony, with the result that intent to kill and deliberation and
      premeditation would never be essential. The felony that
      eliminates the quality of the intent must be one that is
      independent of the homicide and of the assault merged therein,
      as, e.g., robbery or larceny or burglary or rape.”
                                        7

Id. (quoting People v. Moran, 158 N.E. 35, 36 (N.Y. 1927) (citations omitted));

accord Commonwealth v. Quigley, 462 N.E.2d 92, 95 (Mass. 1984) (“[I]n

felony-murder the conduct which constitutes the felony must be ‘separate

from the acts of personal violence which constitute a necessary part of the

homicide itself.’ ” (quoting Wayne R. LaFave & Austin W. Scott, Jr., Criminal

Law § 71, at 559 (1972)), abrogation on other grounds recognized by

Commonwealth v. Azar, 742 N.E.2d 1083, 1086 (Mass. App. Ct. 2001); State

v. Branch, 415 P.2d 766, 767 (Or. 1966) (“[C]ourts . . . have held that where

the only felony committed (apart from the murder itself) was the assault

upon the victim which resulted in the death of the victim, the assault merged

with the killing and could not be relied upon by the state as an ingredient of

a ‘felony murder.’ ”).   Because the defendant’s shooting of the victim in

Heemstra caused the victim’s death and was the act constituting the

predicate felony of willful injury, the predicate felony was not independent of

the assault resulting in death.         Therefore, we held, the defendant’s

participation in the felony of willful injury could not serve as the basis for the

defendant’s conviction of felony murder. Heemstra, 721 N.W.2d at 554, 558–

59.

      IV. Discussion.

      A. Instructions.      Millbrook claims application of the principles

announced in Heemstra warrants a reversal of his conviction of first-degree

murder.    In this case, the instruction used by the court to submit first-

degree murder gave the jury two alternatives for the intent element:

premeditated murder and felony murder. To convict, the jury was required

to find that:

      The defendant or a person he aided and abetted either:
             (a) acted willfully, deliberately, premeditatedly and with a
      specific intent to kill Vincelina Howard; or
                                      8
           (b) was participating in the offense of Intimidation with a
      Dangerous Weapon With Intent.
The jury was also instructed on the charge of intimidation with a dangerous
weapon with intent:

      Under Count Two, in order for the Defendant, Ron Millbrook, to
      be found guilty of the offense of Intimidation with A Dangerous
      Weapon with Intent the State must prove all of the following
      elements:
            1. On or about August 19, 2006, the defendant or a
      person he aided and abetted, shot a pistol, revolver or other
      firearm within an assembly of people.
           2. A pistol, revolver or other firearm is a dangerous
      weapon, as explained in Instruction No. 12.
            3. A person or persons actually experienced fear of
      serious injury and their fear was reasonable under the existing
      circumstances.
            4. The defendant or a person he aided and abetted shot
      the pistol, revolver or other firearm with the specific intent to
      injure or cause fear or anger in a person or persons.

      B. Parties’     Arguments.    The   defendant   contends   his   act   of

intimidation with a dangerous weapon with intent is a felonious assault that

merges with murder and, therefore, cannot be the basis for a felony-murder

charge. The State asserts that intimidation with a dangerous weapon with

intent is not a lesser-included offense of first-degree murder, and therefore,

no merger for purposes of the felony-murder rule occurs. Alternatively, the

State argues that, even if the intimidation offense merges with the murder,

here, unlike in Heemstra, there were separate acts supporting the charges of

felony murder and intimidation with a dangerous weapon.

      C. Merger of Intimidation with a Dangerous Weapon and Murder.

This court’s holding in Heemstra was clearly stated: “We now hold that, if

the act causing willful injury is the same act that causes the victim’s death,

the former is merged into the murder and therefore cannot serve as the

predicate felony for felony-murder purposes.” Heemstra, 721 N.W.2d at 558.

Our application of the principle of merger turned on whether the act
                                     9

constituting the predicate felony was independent of the act causing death.

Merger did not depend on whether willful injury was a lesser-included

offense of murder. Therefore, the fact that intimidation with a dangerous

weapon is not a lesser-included offense of first-degree murder does not

preclude application of the merger doctrine enunciated in Heemstra.

      D. Existence of Independent Act. Our next step in considering the

defendant’s claim of error is to examine the record to determine whether the

act of intimidation is distinct from the murderous assault, as he contends.

The jury was instructed that, to find the defendant guilty of intimidation

with a dangerous weapon with intent, it must find the defendant or a person

he aided and abetted “shot a pistol, revolver or other firearm within an

assembly of people.” If the shot constituting this offense was also the shot

that struck the victim, the felonious acts would merge and the act of

intimidation with a dangerous weapon could not serve as the predicate

felony for felony murder.   Therefore, we must decide whether there were

separate, independent acts supporting the charges of felony murder and

intimidation with a dangerous weapon.

      The defendant claims the seven shots fired by him constitute one act

of intimidation, as they were fired one after the other with no break in the

shooting. Cf. State v. Newman, 326 N.W.2d 788, 793 (Iowa 1982) (holding

conviction of sexual abuse merged with kidnapping conviction even though

defendant committed two acts of sexual abuse because “the matter was tried

and submitted to the jury as one continuing event”). He further reasons that

because the evidence showed that one of these shots caused Howard’s fatal

injury, the acts of intimidation merge with the murderous assault and

cannot provide a basis to support a finding of felony murder.     The State

contends any of the nonfatal shots could serve as the basis for charging the
                                        10

defendant with intimidation with a dangerous weapon; only the fatal shot

would merge into the murder.

      After reviewing the record in this case in a light most favorable to the

jury’s verdict, we conclude the defendant’s own testimony supports a finding

there was a separate, independent act constituting intimidation with a

dangerous weapon that occurred prior to the assault that resulted in the

victim’s death.     Millbrook testified at trial that, upon instructions from

White, he––Millbrook––opened the sliding door. White then reached across

Millbrook and began shooting.      The defendant further testified that after

White and the others started shooting, he began to fire his weapon because

he “didn’t want to feel like a punk.”

      Although Millbrook also testified that he did not know the others were

going to start shooting when he opened the sliding door and that he shot his

gun in the air, there was abundant evidence that contradicted his testimony.

All four men were armed with fully loaded weapons.       There had been an

incident the night before involving West that had upset Bogan, the driver of

the minivan.      It appeared Bogan had followed West to the vicinity of the

party. White shouted “There they go” just before the shooting started. Two

bullets fired from the defendant’s gun were found in the Howard yard,

including one in a pool of the victim’s blood. The jury was free to disbelieve

the defendant’s self-serving statements that he was surprised by the

shooting and fired his weapon toward the sky.

      Evidence that Millbrook enabled White’s initial shot toward the crowd

by opening the sliding door supports a finding that the defendant aided and

abetted White’s commission of intimidation with a dangerous weapon with

intent. Only after his participation in this predicate felony had commenced

did Millbrook himself fire his gun, an independent assault that caused the

victim’s death.
                                      11

      This case is similar to the Massachusetts case of Commonwealth v.

Gunter, 692 N.E.2d 515, 524–27 (Mass. 1998), in which Massachusetts’

highest court applied the rule that conduct which constitutes the predicate

felony must be independent of the act of violence causing death in order to

support a finding of felony murder. In that case, the defendant and other

individuals drove to an apartment to find three men who had earlier stolen

drugs from the defendant and his companions. Gunter, 692 N.E.2d at 518–

19. While the defendant waited in the car, his cohorts, including one Selby,

entered the apartment, brandishing weapons. Id. at 519. After holding the

occupants at gunpoint while they unsuccessfully searched the apartment for

the thieves, the defendant’s companions left. Id. As the door was closing

behind them, Selby pushed the door back open and fatally shot one of the

apartment occupants. Id. The defendant was charged with felony murder,

with armed assault in a dwelling with intent to commit a felony serving as

the predicate felony, illegal possession of a firearm, and armed assault in a

dwelling with intent to commit a felony. Id. at 518. His culpability was as a

joint venturer, based on his role in transporting his companions to and from

the murder scene.    Id.   Upon his conviction of the charged offenses, the

defendant appealed. Id.

      On appeal, the Massachusetts court considered whether the predicate

felony was sufficiently independent of the murder itself to support the felony-

murder conviction. Id. at 524–25. The court concluded the commonwealth

had proved more than the assault on the murder victim; it also established

the prior, independent assault on all the apartment occupants when the

defendant’s cohorts entered the apartment and held the occupants at

gunpoint while they searched the premises. Id. at 526. The court held the

prior assault on the apartment occupants was sufficiently independent of
                                            12

Selby’s later shooting of the victim such that it could serve as the predicate

felony for the defendant’s felony-murder conviction. Id. at 526–27.

       Similarly, here, the record shows Millbrook participated in the crime of

intimidation with a dangerous weapon with intent prior to discharging his

own weapon and causing Howard’s death. We think Millbrook’s aiding and

abetting of White’s commission of intimidation with a dangerous weapon

with intent is sufficiently independent of Millbrook’s firing of his gun into the

crowd so as to support his conviction of felony murder. 2

       Under these circumstances, it is unnecessary for us to determine

whether the seven shots fired by Millbrook constitute one act of intimidation.

Moreover, because Millbrook’s firing of his gun need not serve as the

predicate felony, the State’s failure to prove that Howard was hit by a shot

subsequent to the first shot that arguably constituted intimidation is not

fatal to the defendant’s felony-murder conviction. Cf. Nay v. State, 167 P.3d

430, 431–35 (Nev. 2007) (“ ‘[I]n order for the felony-murder doctrine to be

invoked, the actor must intend to commit the underlying felony at the time

the killing occurs; there is no felony-murder where the felony occurs as an

afterthought following the killing.’ ” (quoting State v. Buggs, 995 S.W.2d 102,

107 (Tenn. 1999)).

       V. Disposition.

       Having found no error in the trial court’s submission of the felony–

murder charge, we affirm the defendant’s conviction.



       2We note the district court’s instruction on the felony-murder charge did not

distinguish between the various shots constituting intimidation with a dangerous weapon
with respect to which ones could serve as the predicate felony for felony murder. See
Commonwealth v. Kilburn, 780 N.E.2d 1237, 1241, 1243 (Mass. 2003) (noting “judge did not
distinguish between the two possible [assaults] when he charged the jury on felony-murder,”
but concluding “the judge’s error had no material impact on the outcome of the trial”). The
defendant did not object to the court’s instruction on this ground, and therefore, we do not
consider whether this omission was reversible error.
                           13

    DECISION OF COURT OF APPEALS AND JUDGMENT OF DISTRICT

COURT AFFIRMED.
