                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-1202
                              Filed August 19, 2015

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

CORNELL MILLER,
     Defendant-Appellant.
________________________________________________________________

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

Judge.



      Cornell Miller appeals his conviction for involuntary manslaughter.

REVERSED AND REMANDED.



      Mark C. Smith, State Appellate Defender, and Theresa R. Wilson,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Kevin Cmelik and Jean C. Pettinger,

Assistant Attorneys General, Michael J. Walton, County Attorney, and Amy

DeVine, Assistant County Attorney, for appellee.



      Considered by Vogel, P.J., and Tabor and McDonald, JJ.
                                         2



MCDONALD, J.

       Cornell Miller was convicted of delivery of a controlled substance as a

habitual offender, in violation of Iowa Code sections 124.401(1)(c) and 902.8

(2013), and involuntary manslaughter as a habitual offender, in violation of Iowa

Code sections 707.5(1) and 902.8.         On appeal, Miller challenges only his

manslaughter conviction, claiming there is insufficient evidence to support the

conviction. Miller also challenges the district court’s refusal to give his requested

jury instruction on causation.

                                         I.

       On September 11, 2013, Miller sold three doses of heroin to Trisha

Delong and Dan Hansen. Delong and Hansen were in a romantic relationship

and cohabited. According to Delong, she and Hansen went to Miller’s residence

to purchase the heroin, and they returned to their residence to consume the

heroin. They combined the three doses of heroin into two doses and consumed

them intravenously. Delong admitted she injected the heroin into Hansen’s arm.

After ingesting the heroin, Hansen and Delong both passed out. When Delong

awoke, she noticed Hansen was still passed out. She tried to wake him, but he

was non-responsive.      She contacted 911 emergency services.          Paramedics

responded to the home and transported Hansen to the hospital, where he was

pronounced dead.

       Dr. Dennis Firchau conducted the autopsy. The autopsy revealed Hansen

was in extremely poor health, suffering from several medical conditions, including

obesity, the narrowing of his coronary arteries, an enlarged heart due to
                                        3



hypertension, a congenital abnormality of his heart valve, and a malignant tumor

on his kidney. Toxicology results showed Hansen had blood ethanol level of

.043. The results also showed metabolites of heroin in Hansen’s system. Dr.

Firchau testified he would have opined Hansen’s cause of death was heart

disease if there had been no heroin present in Hansen’s system. Ultimately, Dr.

Firchau opined Hansen died from combined alcohol and heroin intoxication. Dr.

Firchau explained Hansen’s alcohol intoxication alone “most likely” would not

have caused his death. He was never asked during trial whether Hansen would

have died from heroin overdose in the absence of alcohol.

      During the course of the investigation into Hansen’s death, Delong

identified Miller as the person from whom she and Hansen had purchased the

heroin that night. The police executed a search warrant on Miller’s residence

and discovered items consistent with narcotics distribution. Miller was arrested

and charged with involuntary manslaughter and delivery of a controlled

substance.

      At trial, Miller argued that Delong’s injection of heroin into Hansen’s arm

was an intervening and superseding cause of Hansen’s death, and Miller

requested an instruction on the same. The district court declined to give the

requested instruction.   Miller’s counsel then requested that if his intervening-

cause instruction was not given, then no additional instruction on causation be

given. The district court granted Miller’s request and did not give any instruction

defining causation. The jury found Miller guilty as charged. At sentencing, Miller

stipulated to the habitual offender sentencing enhancement. The district court
                                          4



sentenced Miller to serve an indeterminate term of incarceration not to exceed

fifteen years. This appeal followed.

                                          II.

       Miller first contends there was insufficient evidence to prove he acted

recklessly.   “[W]e review challenges to the sufficiency of the evidence for

correction of errors at law.” State v. Edouard, 854 N.W.2d 421, 431 (Iowa 2014).

“In reviewing challenges to the sufficiency of evidence supporting a guilty verdict,

courts consider all of the record evidence viewed in the light most favorable to

the State, including all reasonable inferences that may be fairly drawn from the

evidence.”    State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012) (internal

quotation marks and citation omitted). We will uphold a verdict if it is supported

by substantial evidence. See id. “Evidence is considered substantial if, 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. But “[e]vidence that

raises only ‘suspicion, speculation, or conjecture’ is not substantial evidence.”

State v. Thomas, 561 N.W.2d 37, 39 (Iowa 1997). “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

(internal quotation marks and citation omitted).

       We begin our discussion with the relevant statute and cases interpreting

the same.      Iowa Code section 707.5 provides that felonious involuntary

manslaughter, as charged here, occurs “when the person unintentionally causes

the death of another person by the commission of a public offense other than a
                                        5



forcible felony or escape.” Iowa Code § 707.5(1)(a). On its face, the statute

appears to impose strict liability for the death of another caused by the

commission of a public offense other than forcible felony or escape. In State v.

Conner, 292 N.W.2d 682, 686 (Iowa 1980), however, the court held the

legislature “intended to preserve the common law requirement of recklessness in

its provisions for involuntary manslaughter.”    Since Conner, our courts have

continued to hold that recklessness “is an additional element that must be proven

to sustain a conviction for involuntary manslaughter.”      State v. Torres, 495

N.W.2d 678, 681 (Iowa 1993); see also, e.g., State v. Ayers, 478 N.W.2d 606,

608 (Iowa 1991) (“The underlying public offense must be committed recklessly in

order to form the basis of involuntary manslaughter.”); State v. Kernes, 262

N.W.2d 602, 605 (Iowa 1978) (“Culpable conduct should require proof of

recklessness.”); State v. Hoon, No. 11-0459, 2012 WL 836698, at *3 (Iowa Ct.

App. Mar. 14, 2012) (discussing recklessness element).

      Our courts frequently have addressed the issue of what constitutes

reckless conduct in the context of involuntary manslaughter. Two cases are

worth discussing here. In State v. Caldwell, 385 N.W.2d 553, 556 (Iowa 1986),

the defendant requested an instruction defining recklessness as “conduct

creating a high and unreasonable risk of death and . . . that [the] defendant [was]

aware of that risk.” The court rejected the argument, concluding it was sufficient

to show the defendant appreciated or should have appreciated some risk of

harm. See Caldwell, 385 N.W.2d at 556.
                                         6



       The court revisited the issue of recklessness in Torres. See 495 N.W.2d

at 681-82. In that case, the defendant physically abused his wife. See id. at

679-80. During the altercation, he swept a glass lamp off the night stand. See

id. at 679. His wife fell on the broken glass and suffered a fatal cut to her left

femoral artery and vein. See id. at 679-80. The court held there was insufficient

evidence of recklessness. See id. at 682. In reaching that conclusion, the court

explained that “[i]n [the] absence of a controlling statute, [it was] persuaded there

should be but one standard of conduct applicable in these involuntary

manslaughter cases.” Id. at 681. The court then concluded:

              Simply put, for recklessness to exist the act must be fraught
       with a high degree of danger. In addition the danger must be so
       obvious from the facts that the actor knows or should reasonably
       foresee that harm will probably—that is, more likely than not—flow
       from the act.

Id.   Justice Neuman dissented, recognizing the majority had “substantially

departed from Caldwell.” Id. at 684-85 (Neuman, J., dissenting). We agree with

Justice Neuman; the court did substantially depart from Caldwell. See id.

       The majority opinion in Torres recognizes that criminal recklessness has

two separate aspects: probability of harm and culpability for harm. See id. at

681-82. The first aspect relates to the defendant’s generation of the risk of harm

the law seeks to prohibit.    See id. at 681.    This requires a determination of

whether the defendant’s conduct was reckless in the sense that it increased the

probability of causing the proscribed harm. See id. In the case of manslaughter,

the proscribed harm is the unintentional death of another. See id. In Torres, the

court stated that criminal liability will not attach to conduct increasing the
                                          7



probability of the risk of harm unless the conduct made the proscribed harm

“more likely than not” to occur. See id. The second aspect of recklessness

relates to culpability for harm; that is, even if the defendant’s conduct sufficiently

increased the probability of causing the proscribed harm and the proscribed harm

in fact occurred, was the defendant’s disregard of the increased risk of harm

sufficiently improper to warrant criminal sanction. See Conner, 292 N.W.2d at

684 (explaining that our case law requires the State prove the defendant acted

recklessly as an element of manslaughter to ensure that the “gradation of

culpability” within our homicide law is “commensurate with the gradation of

punishment”). With respect to this second aspect of recklessness, our cases

hold the State must prove the defendant had a “subjective awareness of the risk,

although usually determined objectively.”       Id.   By necessity, the culpability

component of recklessness requires an assessment of whether the defendant

appreciated the risk of death. See id. (stating the requirement the State prove

the defendant had a subjective awareness of the risk of the proscribed harm

distinguishes criminal liability from civil liability); Model Penal Code § 2.02(2)(c)

(“A person acts recklessly with respect to a material element of an offense when

he consciously disregards a substantial and unjustifiable risk that the material

element exists or will result from his conduct.”).

       With that in mind, we turn to the instructions given in this case.          An

instruction given without objection is the law of the case for purposes of our

review as to the sufficiency of the evidence. See State v. Canal, 773 N.W.2d
                                         8



528, 530 (Iowa 2009). The marshalling instruction given in this case included the

required element of recklessness. Instruction No. 20 provided:

              The State must prove both of the following elements of
      Involuntary Manslaughter under Count 1:
              1. On or about the 11th day of September, 2013, the
      defendant recklessly committed the crime of delivery of a controlled
      substance; to wit, Heroin.
              2. When the defendant committed the crime, the defendant
      unintentionally caused the death of Daniel Hansen.
              If the State has proved both the elements, the defendant is
      guilty of Involuntary Manslaughter. If the State has failed to prove
      either of the elements, the defendant is not guilty of Involuntary
      Manslaughter.

Instruction No. 21 defined reckless as follows:

             A person is “reckless” or acts “recklessly” when he willfully
      disregards the safety of person or property. It is more than a lack
      of reasonable care which may cause unintentional injury.
      Recklessness is conduct which is consciously done with willful
      disregard of the consequences. For recklessness to exist, the act
      must be highly dangerous. In addition, the danger must be so
      obvious that the actor knows or should reasonably foresee that
      harm will more likely than not result from the act. Though
      recklessness is willful, it is not intentional in the sense that harm is
      intended to result.

      We interpret these instructions to require the State to prove the defendant

committed the underlying public offense in such a manner that it made it more

likely than not the death of another would result and the defendant appreciated

his commission of the public offense made it more likely than not that death of

another would result. See Torres, 495 N.W.2d at 681 (stating the actor “knows

or should reasonably foresee that harm will probably—that is, more likely than

not—flow from the act”); Conner, 292 N.W.2d at 684 (stating the recklessness

requires a “subjective awareness of the risk, although usually determined
                                         9



objectively”); Hoon, 2012 WL 836698, at *3 (stating “recklessness is more than

lack of reasonable care which may cause unintentional injury” (internal quotation

marks and citation omitted)); see also Clair v. State, No. 2-03-507-CR, 2006 WL

496035, at *5 (Tex. Ct. App. Mar. 2, 2006) (“A person acts recklessly, or is

reckless, with respect to the result of the person’s conduct when the person is

aware of but consciously disregards a substantial and unjustifiable risk that the

result will occur.” (emphasis added)); People v. Cruciani, 334 N.Y.S.2d 515, 521

(N.Y. Co. Ct. 1972) (“The distinction between reckless and criminally negligent

conduct is not in the nature of the risk but rather in the mental state required for

each. The reckless offender is aware of the proscribed risk and consciously

disregards it. Knowledge on the part of the defendant is essential.” (emphasis

added)); Model Penal Code § 2.02(2)(c).           This interpretation of the jury

instruction reinforces the two aspects of criminal recklessness as discussed in

Torres. See 495 N.W.2d at 681-82.

       We next address the sufficiency of the evidence in light of the instruction

given. The State seems to suggest that the delivery of heroin, without more, is

always substantial evidence of recklessness. See, e.g., Commonwealth v. Perry,

607 N.E.2d 44, 44 (Mass. 1993) (discussing inherent risk associated with heroin

delivery); Commonwealth v. Catalina, 556 N.E.2d 973, 980 (Mass. 1990)

(describing risks inherent to heroin distribution).    We reject this per se or

categorical approach.

       First, such an approach is inconsistent with our case law regarding

criminal recklessness.   The mere delivery of heroin, without more, does not
                                           10



necessarily establish a sufficiently material increase in the probability of the

proscribed harm. More important, the per se approach is inconsistent with the

culpability aspect of recklessness, in which the jury must determine whether the

defendant had or should have had a “subjective awareness of the risk” such that

his disregard of the increased risk warrants criminal sanction. See Conner, 292

N.W.2d at 684. Second, the per se approach is inconsistent with our general

approach to criminal proceedings, which requires the State prove beyond a

reasonable doubt each and every element of the offense:

              Thus, we reject both [Lofthouse’s] proposition that furnishing
       controlled substances to one who subsequently dies from their
       ingestion can never support a conviction of criminal homicide and
       the Commonwealth’s proposition that such will always support a
       conviction. Instead, we hold that guilt of criminal homicide, like any
       other offense, depends upon proof.

Lofthouse v. Commonwealth, 13 S.W.3d 236, 241 (Ky. 2000). Third, adopting a

rule of strict liability for death resulting from delivery of a controlled substance is a

policy decision best addressed by the legislature rather than the judiciary. Cf.

Iowa Code § 123.47(7) (making it a felony offense to supply alcohol to a minor

which results in the death of any person); State of Rohm, 609 N.W.2d 504, 513

(Iowa 2000) (concluding section 123.47(7) did not require proof of recklessness);

see N.J. Stat. Ann. § 2C:35-9(a) (West 2015) (“Any person who manufactures,

distributes or dispenses . . . any other controlled dangerous substance classified

in Schedules I or II, or any controlled substance analog thereof, . . . is strictly

liable for a death which results from the injection, inhalation or ingestion of that

substance.”); State v. Mauldin, 529 P.2d 124, 126 (Kan. 1974) (concluding the
                                         11



legislature regulates classes of items, and the judiciary should not extend liability

under the felony murder rule for death as a result of a controlled substance).

Fourth, the categorical approach is inconsistent with our case law in the area.

       We have twice evaluated the sufficiency of the evidence supporting

convictions for involuntary manslaughter where the victim’s death was caused by

the ingestion of controlled substances. In Hoon, the defendant was charged with

involuntary manslaughter for reckless delivery of methadone. We affirmed the

defendant’s conviction. See 2012 WL 836698, at *8. We noted several facts

establishing the defendant had a subjective appreciation that delivery of a

controlled substance more likely than not would cause the death of the victim.

See id. at *3-4. First, the defendant was a recovering addict and had a personal

appreciation for the risk of methadone use. See id. at *4. The defendant and the

victim were related, and the defendant knew the victim was “messed up” and

visibly “high” at the time of delivery. See id. The defendant also knew of the

victim’s substance abuse history.      See id.    The evidence also showed the

defendant knew the victim was making “desperate and persistent efforts to obtain

the pills” and the victim “would likely take them immediately and without

moderation.” Id. These facts established both that Hoon’s conduct recklessly

increased the probability of death and that Hoon was sufficiently aware of the

increased risk of overdose and death above and beyond the mere delivery of the

controlled substance such that criminal penalty was warranted. See id.

       In State v. Block, No. 99-1242, 2000 WL 1587760, at *1 (Iowa Ct. App.

Oct. 25, 2000), the defendant was charged with involuntary manslaughter after
                                        12



the defendant delivered Xanax and methadone pills to teenaged boys, one of

whom died after ingesting a combination of pills.        This court affirmed the

defendant’s challenge to her conviction, finding there was sufficient evidence to

establish recklessness. See Block, 2000 WL 1587760, at *2-3. As in Hoon, the

defendant was a substance abuser and had personal experience with the drug,

which “render[ed] her conduct in giving the pills to the boys more rather than less

reckless.” Id. at *3. None of the boys to whom the defendant delivered the drugs

had taken methadone before, alone or in combination with Xanax. See id. The

court noted the defendant was with the boys the entire time they were using the

substances and “knew precisely how many pills they had taken.” Id. She also

knew the combination of pills the boys had taken. See id. Finally, the court

explained the defendant was able to personally “observe the effects of the drug”

on the victim. See id. Thus, as in Hoon, there was evidence establishing an

increased risk of death and the defendant’s awareness of an elevated risk of

overdose and death beyond mere delivery of the controlled substance. See id.

      In this case, even when viewing the facts in the light most favorable to the

verdict, there is insufficient evidence establishing either aspect of recklessness.

There was no evidence regarding the quality of the substance sold or Miller’s

knowledge of the same from which the jury could infer a greater likelihood of

death. There was no evidence showing Miller had any knowledge of Hansen’s

medical conditions.   There was no evidence Miller was aware Hansen and

Delong had been drinking prior to or in combination with ingesting the heroin.
                                         13



Delong testified she and Hansen were at Miller’s residence for only five minutes.

Unlike Hoon, there was no evidence establishing Hansen’s use was so frequent

he presented an elevated risk of overdose. See Hoon, 2012 WL 836698, at *3-4.

Delong testified that she and Hansen had used only once per week for a short

period of time. Unlike Block, Miller was not present when Hansen and Delong

ingested the heroin, and Miller thus had no knowledge of how the heroin was

ingested and in what quantity. See Block, 2000 WL 1587760, at *2-3. Finally,

there was no evidence establishing the probability of heroin overdose. Delong

testified she and Hansen had used several times before without issue. She

testified she did not believe heroin was dangerous or that death was a possibility.

There was some testimony, including from Dr. Firchau, that he had seen a few

more instances of heroin overdoses in the Quad Cities area, but he was unable

to quantify any exact amount.          In other words, there was no evidence

establishing it was “more likely than not” that Hansen’s death would result from

Miller’s conduct or that Miller had a subjective appreciation of the risk of death.

       This case is more similar to the Lofthouse case in which the Kentucky

Supreme Court rejected the per se approach and reversed the defendant’s

conviction for manslaughter. See 13 S.W.3d at 241-42. We quote from it at

length:

              [Lofthouse’s] conviction of reckless homicide in the case sub
       judice required proof beyond a reasonable doubt that there was a
       substantial and unjustifiable risk that [the victim] would die if he
       ingested the cocaine and heroin furnished to him by [Lofthouse],
       and that the risk of [the victim’s] death was of such nature and
       degree that [Lofthouse’s] failure to perceive it constituted a gross
       deviation from the standard of care that a reasonable person would
       observe in the situation, . . . ; i.e., that [the victim’s] death as a
                                       14



      result of ingestion of the cocaine and heroin was either foreseen or
      foreseeable by [Lofthouse] as a reasonable probability . . . . Thus,
      the Commonwealth needed to prove not only the toxic qualities of
      cocaine and heroin, but also that a layperson, such as [Lofthouse],
      should reasonably have known that there was a substantial risk that
      the amount of cocaine and heroin ingested by [the victim] would
      result in his death. That is especially true where, as here,
      [Lofthouse] did not directly cause the victim’s death, but only
      furnished the means by which the victim caused his own death. In
      the Pennsylvania case of Commonwealth v. Bowden, [309 A.2d
      714 (Pa. 1973)], evidence that the defendant injected the victim
      with the fatal dose of heroin was held insufficient to support a
      homicide conviction because it was undisputed that the defendant
      knew the victim’s tolerance level for heroin and injected only an
      amount which the victim had normally tolerated.
             Although the medical examiner in our case testified that the
      amount of morphine found in [the victim’s] body “can be fatal” and
      that the amount of cocaine found in his body “could be fatal,” there
      was no proof that [Lofthouse] or any other layperson should have
      been aware that there was a substantial risk that [the victim] would
      die from ingesting those substances, or that [Lofthouse’s] failure to
      perceive that risk constituted a gross deviation from the standard of
      care that a reasonable person would observe in the situation. Such
      information is not “common knowledge.” On the other hand, there
      was evidence that heroin was “something new” to [Lofthouse]; that
      he, himself, had previously ingested dosages of both the cocaine
      and the heroin in question without a fatal result; and that he,
      himself, ingested the same dosages of cocaine and heroin as [the
      victim] on the same occasion, yet remained coherent enough to
      assist in efforts to save [the victim’s] life. The Commonwealth
      proved only that the dosages were fatal to [the victim]. That alone
      was insufficient to convict [Lofthouse] of reckless homicide.

Lofthouse, 13 S.W.3d at 241-42. These are the same types of considerations

that informed our opinions in Hoon and Block. See Hoon, 2012 WL 836698, at

*3-4; Block, 2000 WL 1587760, at *2-3.         These same considerations also

highlight the absence of evidence of recklessness in this case.

                                       III.

      Because we conclude there was insufficient evidence to support the

verdict, we remand this matter and direct the court to enter a judgment of
                                       15



acquittal on that count. As a result, we need not address the remainder of the

defendant’s arguments on appeal.

      REVERSED AND REMANDED.

      Tabor, J., concurs; Vogel, P.J. dissents.
                                        16



VOGEL, J. (dissenting)

       I respectfully dissent from the majority’s conclusion the State failed to

show Miller acted “recklessly” when he sold the doses of heroin to Hansen and

Delong.

       Because the jury found Miller guilty of involuntary manslaughter, that

finding of guilt is binding upon us unless we determine there was not substantial

evidence in the record to support such a finding. State v Torres, 495 N.W.2d

678, 681 (Iowa 1993). To make a substantial evidence determination, we view

the record evidence in the light most favorable to the State. Id.

       A person will be found guilty of involuntary manslaughter under Iowa Code

section 707.5(1) (2013) if the State proves beyond a reasonable doubt a “person

unintentionally causes the death of another person by the commission of a public

offense.” Of course, the public offense here was the delivery of heroin under

Iowa Code section 124.401(1)(c). We have incorporated from common law into

our case law “recklessness” as a necessary element of proof for involuntary

manslaughter. State v. Kernes, 262 N.W.2d 602, 605 (Iowa 1978) (“Culpable

conduct should require proof of recklessness, that is, conduct evidencing either a

willful or wanton disregard for the safety of others.”).     The “culpability of a

person’s unintentional death-causing conduct must still be weighed in light of all

surrounding facts and circumstances, the activity he or she engaged in at the

relevant time, and the inherent risk to others of the activity or instrumentalities

involved.” Id. The jury was instructed on the definition of recklessness:

       A person is “reckless” or acts “recklessly” when he willfully
       disregards the safety of person or property. It is more than a lack
                                        17



      of reasonable care which may cause unintentional injury.
      Recklessness is conduct which is consciously done with willful
      disregard of the consequences. For recklessness to exist, the act
      must be highly dangerous. In addition, the danger must be so
      obvious that the actor knows or should reasonably foresee that
      harm will more likely than not result from the act. Though
      recklessness is willful, it is not intentional in the sense that harm is
      intended to result.

The jury was then given the marshalling instruction which read:

            1. On or about the 11th day of September, 2013, the
      defendant recklessly committed the crime of delivery of a controlled
      substance; to wit, Heroin.
            2. When the defendant committed the crime, the defendant
      unintentionally caused the death of Daniel Hansen. If the State has
      proved both the elements, the defendant is guilty of Involuntary
      Manslaughter. If the State has failed to prove either of the
      elements, the defendant is not guilty of Involuntary Manslaughter.

Under these instructions I believe a reasonable juror would and did conclude,

beyond a reasonable doubt, that the delivery of three bindles or doses of heroin

to two people, Hansen and Delong, was reckless.

      Evidence presented at trial highlighted the danger of heroin. Although

Delong testified she did not believe heroin was dangerous before these events,

we do not use the subjective standards of those involved in the incident. See

State v. Bash, 670 N.W.2d 135, 137 (Iowa 2003).           Rather, we examine the

record to determine if a rational fact finder could be convinced. Id. The majority

concludes that the evidence presented at trial is too thin to fulfill the test; I

disagree. Testimony at trial showed any amount of the drug is potentially fatal,

and in the previous year, the number of deaths from heroin overdoses had been

increasing in the area.     As Dr. Firchau testified: “When dealing with illicit

substances, specific drug concentrations, potentially fatal or toxic concentrations
                                        18



are less useful and less important because it is widely believed and accepted

that any potential amount of those substances can be potentially fatal” and

“heroin at any level in the system can be potentially fatal.” Thus, a reasonable

jury would have started its deliberations with the notion that dealing in heroin—in

any amount—is “highly dangerous.” See, e.g., Commonwealth v. Catalina, 556

N.E.2d 973, 980 (Mass. 1990) (noting Congress has “placed heroin in the most

dangerous category of controlled substance”). There is no “safe dose” of this

schedule one narcotic. See id. (stating heroin “lacks accepted safety for use

even under medical supervision”). Federal law has noted the danger inherent in

heroin as well. 21 U.S.C. § 812(b)(1), 812(c) (2012). Wisconsin has even taken

the step to statutorily criminalize the delivery of schedule I controlled substances

resulting in death. Wis. Stat. § 940.02(2). Courts in Georgia have held that the

felony-murder rule applies in similar situations. Hulme v. State, 544 S.E.2d 138,

141 (Ga. 2001). While Iowa has not determined, either through legislation or

case law, that dealing heroin is per se reckless, the very act of selling a schedule

I narcotic, knowing it will be ingested, is unquestionably inherently dangerous.

       In this case, Delong testified, she and Hansen had “a few drinks” before

approaching Miller for some heroin. Miller then sold three doses of the drug to

the two users—150% of the packaged, standard dosage. Selling an excessive

amount of an inherently dangerous substance raised the risk of overdose. I

would conclude, the combination of the inherently dangerous nature of heroin,

the increase of overdoses in the area, the testimony that any amount of heroin is

potentially fatal, and the excessive amount sold to Hansen and Delong by Miller
                                        19



was sufficient to prove the element of recklessness.           A reasonable juror,

following the recklessness instruction provided, would have found that Miller’s

actions, in selling a large quantity of heroin to two people, “willfully disregarded

the safety” of Hansen and Delong; it was “done with willful disregard of the

consequences”; “the act was highly dangerous”; and the danger was so obvious

that Miller knew or should have reasonably foreseen “that harm will more likely

than not result from” the sale. See Jury Instruction No. 21.

       Therefore, viewing the evidence in the light most favorable to the State, I

submit substantial evidence supported the jury’s findings that Miller acted

recklessly when he sold the three doses of heroin to two people—Hansen and

Delong. I would affirm Miller’s conviction.
