              IN THE SUPREME COURT OF IOWA
                              No. 07–1131

                         Filed September 4, 2009


STATE OF IOWA,

      Appellee,

vs.

RUSSELL WILLIAM SCHULER,

      Appellant.


      Appeal from the Iowa District Court for Black Hawk County,

Bruce B. Zager, Judge.



      Defendant challenges conviction for willful injury causing serious

injury alleging an error in the jury instructions.      REVERSED AND

REMANDED.



      Philip B. Mears of Mears Law Office, Iowa City, for appellant.



      Thomas J. Miller, Attorney General, Elisabeth S. Reynoldson,
Assistant Attorney General, Thomas J. Ferguson, County Attorney, and

James Katcher, Assistant County Attorney, for appellee.
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APPEL, Justice.

      This case centers on the validity of the jury instruction for the

crime of willful injury causing serious injury. The defendant asserts that

the instruction fails to set forth the elements of willful injury as

established by the Code of Iowa.          Specifically, he alleges that the

instruction impermissibly lowered the State’s burden of proof by

requiring that it prove only that the victim “sustained” a serious injury

instead of demonstrating that the defendant’s actions “caused” a serious

injury. For the reasons expressed below, we agree with the defendant,

reverse his conviction, and remand the case for a new trial.

      I. Factual and Procedural History.

      In the early morning hours of August 31, 2006, the defendant

Russell Schuler, along with his sister Jennifer Schuler and several

friends, was involved in a violent altercation outside Flirts Gentlemen’s

Club in Waterloo, Iowa. Although witness accounts varied considerably,

the incident began shortly after Lucas Spinelli arrived at the club. Words

were exchanged, and the interaction quickly turned violent between

Spinelli, his dog, and Jennifer. Spinelli testified that Jennifer “socked me

pretty good for a girl . . . right in the side of my face.” After this initial

altercation, Spinelli left the scene and parked his car at the Iowa

Community Credit Union, just a short distance from Flirts.

      Russell soon joined Spinelli at the bank parking lot, followed by

Jennifer and their group of friends. The fight quickly resumed. Spinelli,

while admitting that he did not have a clear recollection of the events due

to his injuries, testified that Russell attempted to choke him while

someone else grabbed him from behind. Spinelli asserted that he was

then attacked by multiple assailants—four men and two women—and

was repeatedly kicked after he had fallen to the ground and that the
                                        3

attack only ceased after repeated begging and pleading.              Spinelli

described one of these assailants as having long, dark hair. The victim

had no recollection, however, other than his initial faceoff with Russell, of

either of the Schulers participating in the brawl. After the altercation,

Spinelli made numerous attempts to stand up, falling to the ground on

his face each time. A doctor later testified that a portion of the victim’s

injuries could be due to these falls.

      The bank fight was witnessed by cab driver George Bowser.

Bowser testified that he witnessed Spinelli and at least one other male

pushing each other before others arrived at the scene. At that point, the

group entered the melee with everyone at the scene participating.

Bowser testified that the assault continued after Spinelli was on the

ground. In particular, the witness observed a female in a white, button-

up shirt with long, dirty blond hair run up and hit the injured man.

Later the witness identified this shirt as the cover-up typically worn by

dancers after performing at Flirts. Spinelli also reportedly told police, “I

couldn’t believe that dancer was hitting me and kicking me.”         Finally,

Bowser testified that a man continued kicking the victim after the rest of

the group had stopped. The witness described the man as having long,

dark hair. The cab driver was not able to positively identify any of the

participants in the brawl.

      Other witnesses offered different recollections.      Holly Lorenz, a

friend of the Schulers, testified that Spinelli had been the initial

aggressor, attacking Russell with a two-by-four. Lorenz further asserted

that another member of their group, Trevor Roberts, was involved in the

altercation but that he had discontinued fighting after Spinelli had been

subdued. At that point, only the Schulers were involved, with Jennifer
                                     4

only involved “a little bit.” Lorenz further asserted that Spinelli fought

back the entire time.

      In addition to the live testimony, the State introduced Russell’s

and Jennifer’s taped interviews with law enforcement. While maintaining

that he acted in self-defense, Russell admitted, in colorful language, to

striking Spinelli four or five times in the face with significant force. He

also told police that no one else was involved in the altercation.

Although not admitted as evidence against Russell, Jennifer’s statements

to law enforcement acknowledge an active role in the assault.

      After the assault, Spinelli was transported to Allen Hospital where

he was sedated, intubated, and transferred by helicopter to the

University of Iowa Hospitals and Clinics due to his “life-threatening

injuries.”   Spinelli’s pallet was completely dislodged, and his nose and

jaw were broken.

      The Schulers, in turn, returned to Flirts to await the arrival of law

enforcement. Law enforcement took numerous photographs of the two,

as well as seized their clothing. Lab tests later revealed Spinelli’s blood

on Russell’s and Jennifer’s clothing. Their own blood was also identified

at the scene as well as that of an unidentified individual.        Over the

course of that morning and the ensuing month, the two cooperated with

local police and submitted to questioning.      At the conclusion of the

investigation, the Schulers along with Roberts were charged with willful

injury causing serious injury in violation of Iowa Code section 708.4(1)

(2005).

      The defendants individually filed a number of pretrial motions,

including a motion to sever their trials and a motion to produce the

entirety of Spinelli’s medical records from Allen and the University of

Iowa Hospitals. The district court denied each of these motions.
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      A joint jury trial commenced on May 1, 2007. Prior to submission

of the case to the jury, the defendants objected to the wording of

Instruction No. 20, the jury instruction for willful injury causing serious

injury. Russell asserted that the instruction failed to properly set forth

the statutory requirements of willful injury as it did not require the jury

to find that he “caused” Spinelli’s serious injury. The defendant noted

that this omission was particularly acute given the inclusion of the

causation element in the instructions for the lesser-included offenses of

assault. While acknowledging that there were “differences between the

elements for a willful injury, whether it’s causing a bodily injury or a

willful injury causing serious injury,” the district court overruled the

objection.

      On May 9, the jury returned a verdict of guilty against all three

defendants, finding Russell and Jennifer guilty of the top count of willful

injury causing serious injury and Roberts guilty of the lesser-included

offense of assault causing bodily injury.    Russell was sentenced to an

indeterminate prison term of ten years and assessed a fine of $1000.

      The defendant filed a timely notice of appeal.        On appeal, he

asserts that his conviction was in error as (1) the jury was improperly

instructed as to the elements of willful injury, allowing it to find him

guilty without finding that his actions “caused” the victim’s serious

bodily injury; (2) the trial court erred by refusing to sever his trial from

that of his co-defendants; and (3) he was improperly denied access to the

totality of the victim’s medical records.

      II. Standard of Review.

      “We review jury instructions to decide if they are correct

statements of the law and are supported by substantial evidence.” State

v. Liggins, 557 N.W.2d 263, 267 (Iowa 1996). The district court has a
                                            6

“duty to instruct fully and fairly” on the law applicable to “all issues

raised by the evidence.” State v. Stallings, 541 N.W.2d 855, 857 (Iowa

1995). The validity and sufficiency of jury instructions are not evaluated

in isolation, but rather in context with other instructions as a whole. Id.

       Discovery matters are committed to the sound discretion of the

trial court and are reviewable for an abuse of discretion.                      State v.

Groscost, 355 N.W.2d 32, 34 (Iowa 1984). An abuse of discretion will not

be found unless the defendant demonstrates “ ‘that such discretion was

exercised on grounds or for reasons clearly untenable or to an extent

clearly unreasonable.’ ” State v. Morrison, 323 N.W.2d 254, 256 (Iowa

1982) (quoting State v. Buck, 275 N.W.2d 194, 195 (Iowa 1979)). 1

       III. Discussion. 2

       A.     Jury Instruction for Willful Injury.                Iowa Code section

708.4(1) sets forth the elements of the crime of willful injury causing

serious injury. Under Iowa law a person commits willful injury causing

serious injury when a person “does an act which is not justified and

which is intended to cause serious injury to another . . . [and] the person

causes serious injury to another.” Iowa Code § 708.4(1). Russell asserts




       1The   defendant asserts that our review should be de novo as the denial of his
motion to produce could have had constitutional implications as the requested
information could have proven exculpatory under Brady v. Maryland, 373 U.S. 83, 83
S. Ct. 1194, 10 L. Ed. 2d 215 (1963). We reject that argument, however, because there
is no indication from the record presented here that the State suppressed evidence
which could be favorable to the defendant. The record indicates that the State merely
failed to seek evidence.

       2On  appeal, Russell asserts that the district court erred in refusing to sever his
trial from his co-defendants. Upon review of the record, we find that Russell did not
join the motion for severance made by his co-defendant. Russell thus did not preserve
error on this issue. In addition, our disposition of the jury instruction issue may
change the nature of his argument for severance. As a result, on remand and upon
proper motion, the district court may wish to reconsider the severance issue in light of
this opinion.
                                     7

that his conviction was in error as the marshalling instructions for willful

injury did not properly set forth these elements.

      The jury was instructed that Russell committed willful injury

causing serious injury if it found the following:

      1. On or about August 31, 2006, the Defendant punched,
         kicked, and/or grabbed Lucas Spinelli.

      2. The Defendant specifically intended to cause a serious
         injury to Lucas Spinelli.

      3. Lucas Spinelli sustained a serious injury.

Russell’s allegation of error thus lies with subsection 3, which allowed

the jury to find him guilty if they determined that Spinelli sustained a

serious injury without finding that Russell’s actions caused his serious

injury.

      Although an instruction need not contain or mirror the precise

language of the applicable statute, it must be a correct statement of the

law. Johnson v. Interstate Power Co., 481 N.W.2d 310, 324 (Iowa 1992).

Here, the difference between the statutory elements and the instruction

for willful injury is not stylistic, it is substantive. The challenged words—

sustained and caused—are two different words with two different

meanings. Black’s Law Dictionary defines “sustain” as “[t]o support or

maintain” or “to undergo; suffer.” Black’s Law Dictionary 1488 (8th ed.

2004). “Cause,” conversely, is defined as “[t]o bring about or effect.” Id.

at 235. “Sustained” thus has a passive connotation, while “caused” has

an active inference. The words are simply not synonymous.

      Use of the word “sustained” in the instruction for willful injury

causing serious injury is exacerbated by the wording for the lesser-

included assault offenses.    For example, Instruction No. 23 explicitly

required the jury to find that Russell’s actions “caused” a serious injury
                                     8

to Spinelli in order to find him guilty of assault causing serious injury.

The same is true for Instruction No. 27, which set forth the elements of

assault causing bodily injury.

      The State seeks to sustain the instruction on willful injury causing

serious injury by asserting that a logical reading of the instruction

requires the prosecution to prove causation.       In particular, the State

suggests that each of the elements of this instruction builds on the one

preceding it. For example, the intent element—subsection 2—refers back

to the acts committed in the first element. Likewise, the State asserts,

the serious injury to which the third element refers must necessarily

arise out of the actions referenced in the first element.

      While the State’s interpretation is plausible, it is not the only

reasonable inference of the instruction as given, especially under the

factual scenario presented here. Numerous persons, including all three

defendants, were active participants in the violent altercation outside

Flirts Gentlemen’s Club.       Moreover, there were conflicting witness

statements as to which defendant struck Spinelli and in what manner. It

is therefore plausible that the jury could find that although Russell

assaulted Spinelli, his assault did not cause the victim’s bodily injury.

Nothing in Instruction No. 20 explicitly required the jury to find that

Russell’s actions caused Spinelli’s injuries.

      We cannot simply assume, as the State urges, that the jury

necessarily made an implicit finding on the causation issue.       State v.

McMullin, 421 N.W.2d 517, 518–19 (Iowa 1988). The jury instruction for

willful injury causing serious injury is faulty as it allows the jury to

convict without finding all of the elements as prescribed by Iowa Code

section 708.4(1), namely that the defendant’s actions caused the victim’s

serious injury.
                                     9

      B. Harmless Error. The State seeks to avoid the necessity of a

new trial by asserting that the defendant was not prejudiced by the error

in the willful-injury-causing-serious-injury jury instruction.    The State

claims that even where there is an error in instructions involving an

element of a crime submitted to the jury, any presumption of prejudice

may be overcome upon a showing that the error was harmless beyond a

reasonable doubt.    Russell asserts that where there is an error in the

instructions related to an element of a theory of guilt, reversal is

required.   In the alternative, Russell asserts that even if the harmless

error doctrine applies, the State has failed to show that the flaw in the

instructions in this case was harmless beyond a reasonable doubt.

      The United States Supreme Court confronted the issue in Neder v.

United States, 527 U.S. 1, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999). In

Neder, a sharply divided court held that an erroneous jury instruction

that omits an element of the offense is subject to harmless-error

analysis. Neder, 527 U.S. at 10, 119 S. Ct. at 1834, 144 L. Ed. 2d at 48.

While some state courts have followed Neder, see, e.g., State v. Daniels,

91 P.3d 1147, 1156 (Kan. 2004); State v. Tomlinson, 648 N.W.2d 367,

383–84 (Wis. 2002), a number have declined to follow the Neder majority,

with at least one state court suggesting that its precedential value may

be short lived, Freeze v. State, 827 N.E.2d 600, 605 (Ind. Ct. App. 2005)

(“The idea that a deprivation of the Sixth Amendment right to a jury trial

could ever be considered ‘harmless’ is of recent and now-questionable

vintage.”); see also People v. Nitz, 820 N.E.2d 536, 556 (Ill. App. Ct. 2004)

(suggesting that a majority of the United States Supreme Court now

prescribe to the Neder dissent), aff’d in part and rev’d in part, 848 N.E.2d

982 (Ill. 2006).
                                   10

      The cases that decline to follow Neder are more consistent with the

approach suggested by Justice Scalia in California v. Roy:
             The absence of a formal verdict on this point cannot be
      rendered harmless by the fact that, given the evidence, no
      reasonable jury would have found otherwise. To allow the
      error to be cured in that fashion would be to dispense with
      trial by jury. “The Sixth Amendment requires more than
      appellate speculation about a hypothetical jury’s action, or
      else directed verdicts for the State would be sustainable on
      appeal; it requires an actual jury finding of guilty.”
California v. Roy, 519 U.S. 2, 7, 117 S. Ct. 337, 339, 136 L. Ed. 2d 266,

272 (1996) (Scalia, J., concurring) (quoting Sullivan v. Louisiana, 508

U.S. 275, 280, 113 S. Ct. 2078, 2082, 124 L. Ed. 2d 182, 190 (1993)).

      In Iowa, an older case suggests that where there is an error or

omission in an instruction related to an element of the criminal offense,

prejudice is presumed but may be overcome upon a showing beyond a

reasonable doubt that the error was harmless.        State v. Seiler, 342

N.W.2d 264, 268 (Iowa 1983).     Our more recent cases, however, have

reversed convictions where instructions describing the elements of an

offense are flawed without harmless error analysis. State v. Heemstra,

721 N.W.2d 549, 558 (Iowa 2006).

      We do not find it necessary to decide the issue here, however, as

even if we apply the State’s test, we cannot find that the presumption of

prejudicial error from an erroneous instruction on the elements of a

crime was overcome by overwhelming evidence beyond a reasonable

doubt. Each witness at trial presented a markedly different version of

the events of August 31. The severity and type of Russell’s involvement

varies from witness to witness. As a result, we cannot conclude with any

degree of certainty that the jury would have found Russell guilty beyond

a reasonable doubt had it been properly instructed.       For instance, a

reasonable jury might conclude that Spinelli sustained the serious injury
                                     11

during the first encounter outside Flirts, prior to Russell’s involvement,

when Jennifer “socked” Spinelli.

       Further, both the victim and the sole uninterested witness, cab

driver Bowser, testified that upwards of six people participated in the

fight and that a primary participant was a man with long, dark hair.

None of the defendants, moreover, fits the description of the long-haired

individual who was reported to be last to stop fighting.          Only four

participants of the melee were identified—Russell, Jennifer, Roberts, and

Lorenz. If any other individual participated, including the woman with

long, blond hair and a white cover-up, they were not indentified at trial.

A reasonable jury could determine that the State failed to meet its

burden of proof because one of these unidentified individuals could have

“caused” Spinelli’s injuries. As a result, this case must be remanded for

new trial despite the evidence, including his own statements, of Russell’s

participation in the brawl. See State v. Martens, 569 N.W.2d 482, 485

(Iowa 1997) (“[T]he validity of a verdict based on facts legally supporting

one theory for conviction of a defendant does not negate the possibility of

a wrongful conviction of a defendant under a theory containing legal

error.”).

       C. Medical Records. Because this issue may reemerge at retrial,

we take this opportunity to review Russell’s third allegation of error,

namely that the district court erred in denying his motion to compel the

State to produce the totality of Spinelli’s medical records.

       Before the district court, Russell alleged that he had not received

all of the victim’s medical records related to the assault. Specifically, the

defendant asserted that in all likelihood both Allen Hospital and the

University of Iowa had performed blood tests on Spinelli, yet Russell had

received only one test result. A defense expert further opined that in all
                                     12

probability less than half of the available records had been turned over to

the defense.

      The State acknowledged that the defendant was probably correct

and that Spinelli’s medical records were incomplete. Nevertheless, the

State asserted that it had turned over all records in its possession and

would turn over any future records that might be obtained, but asserted

that it had no ability to produce records which were not in the

possession of the prosecution or law enforcement. The court accepted

the professional statement of the prosecutor, concluded that the

defendants would “need to take whatever efforts they need to obtain

those medical records,” and denied the motion.

      On appeal, Russell asserts the district court erred by not ordering

the State to produce the missing files.     He distinguishes our previous

decision in State v. Stratton, 519 N.W.2d 403, 404–05 (Iowa 1994), where

we rejected a similar claim, because unlike Stratton, here the State had a

full medical waiver from the victim.      According to the defendant, this

waiver gave the State “control” over Spinelli’s medical files.

      We disagree.      Iowa Rule of Criminal Procedure 2.14(2)(b)(1)

provides, in relevant part:
      Upon motion of the defendant the court may order the
      attorney for the state to permit the defendant to inspect, and
      where appropriate, to subject to scientific tests, items seized
      by the state in connection with the alleged crime. The court
      may further allow the defendant to inspect and copy books,
      papers, documents, statements, photographs or tangible
      objects which are within the possession, custody or control of
      the state, and which are material to the preparation of the
      defense, or are intended for use by the state as evidence at
      the trial, or were obtained from or belong to the defendant.
Iowa R. Crim. P. 2.14(2)(b)(1) (emphasis added).         While the medical

waiver may have given the State a superior ability to access the files, this

fact alone does not demonstrate that the State had “control” over the files
                                    13

for purposes of discovery.   See Nelson v. United States, 649 A.2d 301,

307–08 (D.C. 1994) (concluding that medical records which were not

sought by the prosecution were not in the state’s possession regardless

of a medical waiver).

      Even if we were to assume that the waiver did grant the State

control over Spinelli’s medical files, we cannot say that the district court

abused its discretion by denying the defendant’s motion to compel.

Russell has not suggested that the motion to compel was his exclusive

means of obtaining these records. In fact, the record suggests that one

of Russell’s co-defendants obtained a complete set of the victim’s medical

records from Allen Hospital through use of a subpoena duces tecum.

“[W]hen evidence is equally accessible to the defendant and the State, the

State is not required to produce it.” Stratton, 519 N.W.2d at 405; accord

State v. Galloway, 187 N.W.2d 725, 729 (Iowa 1971).

      IV. Conclusion.

      For the reasons expressed above, the defendant’s conviction for

willful injury causing serious injury is reversed and the case is remanded

to the district court.

      REVERSED AND REMANDED.

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