                   IN THE SUPREME COURT OF IOWA
                                No. 05–0883

                            Filed March 19, 2010


STATE OF IOWA,

      Appellee,

vs.

CHRISTOPHER DEANGELO SPATES,

      Appellant.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Black Hawk County, Jon C.

Fister, Judge.



      Alleging instructional error, defendant seeks further review of court of

appeals’ decision affirming defendant’s first-degree murder conviction.

DECISION OF COURT OF APPEALS VACATED IN PART; DISTRICT

COURT JUDGMENT AFFIRMED.



      Clemens A. Erdahl, Eric D. Tindal, and Sara L. Smith of Nidey

Peterson Erdahl & Tindal, PLC, Cedar Rapids, for appellant.



      Thomas J. Miller, Attorney General, Richard J. Bennett, Assistant

Attorney General, Thomas J. Ferguson, County Attorney, and Joel Dalrymple

and D. Raymond Walton, Assistant County Attorneys, for appellee.
                                       2

TERNUS, Chief Justice.

        The appellant, Christopher Spates, was convicted of first-degree felony

murder for the killing of a bystander during a gun battle between rival

groups in Waterloo, Iowa. Spates raised several issues on appeal, but they

were all rejected by the Iowa Court of Appeals.      This court subsequently

granted his application for further review for purposes of considering two

allegations of trial court error:   (1) the failure to give an instruction on

voluntary manslaughter and (2) the submission of a “mutual combat”

instruction.

        We conclude error was not preserved on the trial court’s decision not

to submit voluntary manslaughter as a lesser-included offense of first-degree

murder. In addition, we hold the trial court did not err in instructing on the

theory of mutual combat as a basis for the defendant’s culpability as an

aider and abettor. We vacate that portion of the court of appeals’ decision

addressing the defendant’s allegations of instructional error and affirm the

district court’s judgment of conviction and sentence.

        I. Background Facts and Proceedings.

        In the early morning hours of October 10, 2004, a fight occurred

between two rival groups, the “L-Block” and “The Hood,” in the parking lot of

a Waterloo bar. Although the defendant was not present at this fight, several

members of his extended family, including his brother, Carl, and cousins,

Dornodis and Damean, were involved either as members or associates of The

Hood.     After the fight, Carl, Dornodis, Damean, and three other Hood

members or associates, who had been at the bar fight, drove to the house

where the mother of the defendant and Carl lived. The men were angry and

decided to “go find” the L-Block members.      Carl went into the house and

returned with an assault rifle.
                                       3

      The group then proceeded to Damean’s house where they met up with

the defendant who was driving his mother’s GMC Yukon Denali, which he

was purchasing from her. The defendant agreed to join in the effort to find

the L-Block group. They knew L-Block members sometimes hung out at 130

Harrison Street, so they proceeded to that location, a third car joining them

en route. This caravan of cars was captured on video by a police officer who

happened to have his camera turned on during an unrelated traffic stop. A

trial expert testified that the vehicles shown on this video were consistent

with the three cars driven to 130 Harrison, including the defendant’s Denali.

      Seeing a number of persons outside 130 Harrison, the group parked

their vehicles a block away and proceeded on foot to 137 Harrison, an area

across the street from 130 Harrison. According to testimony of witnesses at

trial, the defendant had a shotgun, his brother had the assault rifle, and

other members of the group had additional weapons. Although there was

conflicting evidence about who fired the first shot, it is undisputed that shots

were fired by the defendant’s group. Numerous casings were found at the

scene, including evidence that two shotguns had been fired.         During the

gunfire, a woman in the kitchen of 130 Harrison was killed.            Ballistic

evidence confirmed the bullet that struck this bystander was shot by an

assault rifle, but the bullet could not be linked to any specific weapon.

      After the shooting, the individuals in the defendant’s group fled the

scene.   Dorondis had been shot in the shoulder.         Accomplice testimony

indicated the defendant took Dorondis to a nearby hospital, and DNA

evidence confirmed that blood found in the Denali belonged to Dorondis.

      Twelve days later, the defendant, his brother, Carl, and his cousins,

Dorondis and Damean, were charged with first-degree felony murder. The

trial information alleged the defendants killed the victim while participating

in a forcible felony. See Iowa Code § 707.2 (2003). The defendant pled not
                                             4

guilty. In exchange for testifying against the defendant and Carl, Dorondis

and Damean entered into plea agreements pleading guilty to unspecified

crimes with an aggregate term of twenty-five years.

       The charges against the defendant and his brother were jointly tried to

a jury. The first-degree murder charge was submitted under felony-murder

instructions allowing the jury to find either defendant guilty as a principal or

as an aider and abettor. 1 The predicate forcible felonies were those listed in

the information: intimidation with a dangerous weapon or assault causing

serious injury. The jury was also instructed on the lesser-included offenses

of second-degree murder and involuntary manslaughter, but returned a

guilty verdict on the first-degree murder charge. The defendant’s posttrial

motions were denied, and he was sentenced to life in prison.

       The defendant’s subsequent appeal was transferred to the court of

appeals.      That court affirmed the defendant’s conviction and judgment of

sentence.      We granted the defendant’s application for further review to

consider two issues: (1) whether the district court erred in failing to instruct

on the lesser-included offense of voluntary manslaughter and (2) whether the

district court erred in giving an instruction on the subject of “mutual

combat.”      See Anderson v. State, 692 N.W.2d 360, 363 (Iowa 2005) (“On
further review, we can review any or all of the issues raised on appeal or

limit our review to just those issues brought to our attention by the

application for further review.”).

       II. Voluntary Manslaughter Instruction.

       On appeal, the defendant asserts the trial court erred in failing to

instruct the jury on voluntary manslaughter as a lesser-included offense of



       1The prosecution tried the case on the theory that Carl shot the fatal bullet, and the
defendant aided and abetted him.
                                             5

first-degree felony murder. The State claims the defendant failed to preserve

error on this issue.

       Iowa Rule of Criminal Procedure 2.6(3) requires the trial court to

instruct on lesser-included offenses, “even though such instructions have

not been requested.” Notwithstanding the trial court’s duty in this regard,

we have a long-standing requirement that, to preserve error on a trial court’s

failure to instruct on a lesser-included offense, “a defendant must request a

lesser-included offense instruction or object to the court’s failure to give it.”

State v. Jeffries, 430 N.W.2d 728, 737 (Iowa 1988); accord State v. Wallace,

475 N.W.2d 197, 202 (Iowa 1991); cf. State v. Ondayog, 722 N.W.2d 778,

785 (Iowa 2006) (requiring defendant to object to trial court’s instruction on

lesser-included offense to preserve error). A corollary of this requirement is

the rule that “a defendant may expressly waive a lesser-included offense

instruction.” Jeffries, 430 N.W.2d at 737; accord State v. Greer, 439 N.W.2d

198, 200 (Iowa 1989). Even when a defendant waives submission of lesser-

included offenses, the State retains the right to demand submission of a

lesser offense.      See Greer, 439 N.W.2d at 200.                In Greer, this court

recognized that the State may also have “a legitimate interest in having a

lesser-included offense . . . submitted to the jury,” and therefore, the

defendant does not have “veto power . . . to block submission of any lesser-

included offense which the accused does not fancy.” Id. 2


       2We   recently stated in dicta in In re Z.S., 776 N.W.2d 290 (Iowa 2009), that Iowa
follows the “trial integrity” model in determining whether a lesser-included offense
instruction should be given to the jury. In re Z.S., 776 N.W.2d at 295. Under this model,
the trial judge must give an instruction “on any lesser-included offense supported by the
evidence, even if neither party requests one. . . . This analytical model does not permit the
parties to adopt an all-or-nothing trial strategy.” State v. Cox, 851 A.2d 1269, 1272 (Del.
2003). As the Iowa cases demonstrate, we give the parties some autonomy to determine
whether a lesser-included offense is submitted to the jury. If both the defense and the
prosecution agree that a lesser-included-offense instruction should not be given, the trial
judge does not commit error in failing to instruct on the lesser-included offense. To the
extent In re Z.S. implies a different rule, we disavow it.
                                              6

       The record reveals the trial court submitted its proposed instructions

to the county attorney and to the attorneys for the defendant and his

brother, Carl, before final arguments. These instructions did not include an

instruction on voluntary manslaughter. The trial court specifically directed

the attorneys’ attention to the subject of lesser-included offenses.                      The

county attorney, Mr. Ferguson, stated that murder in the second degree and

involuntary manslaughter should be submitted.                     The court then asked

Mr. Standafer and Mr. Bevel, the defendant’s attorneys, for their response.

The following discussion ensued:

             MR. BEVEL: Well I think we would just––we would ask
       voluntary manslaughter––
               (Discussion was had between Mr. Bevel and Mr. Rauch.)
              MR. STANDAFER: Judge, this is one of them unique
       situations, I guess it happens sometimes, but as co-counsel I
       think Mr. –– I just got to be honest with the Court, Mr. Bevel and
       I disagree. I don’t think it’s appropriate to submit––and I think I
       addressed this to the Court earlier––I don’t think it’s appropriate
       to submit voluntary manslaughter in this case.
               THE COURT: Okay.
             MR. FERGUSON: Just so the record is clear, Your Honor,
       voluntary manslaughter is a lesser included under a legal
       theory, but it would not be under the facts as submitted, the
       evidence in this case–– 3
               MR. STANDAFER: That’s what I have a problem with.

       3If  an offense is legally included within the charged offense and there is a factual
basis for submission of the lesser offense, the court may properly submit the lesser offense
to the jury. State v. Ware, 338 N.W.2d 707, 714 (Iowa 1983). Under our legal-elements test
for lesser-included offenses, the lesser offense must “ ‘be composed . . . of some but not all
of the elements of the greater offense[].’ ” Jeffries, 430 N.W.2d at 736 (quoting State v.
Lampman, 345 N.W.2d 142, 143 (Iowa 1984)). Logically, then, if the lesser offense meets the
legal-elements test and there is a factual basis for the greater offense, the lesser offense
automatically meets the factual test. Id. The factual test is not automatically met, however,
when a crime that does not meet the legal-elements test is made a lesser-included offense by
statute. Id. at 737. In those instances, the trial court must separately “determine if
sufficient evidence exists to submit [the] statutorily mandated lesser-included offense[].” Id.
By statute, voluntary manslaughter is an included offense of felony murder. See Iowa Code
§ 707.4; Jeffries, 430 N.W.2d at 737. Therefore, it was necessary for the trial court to find
substantial evidence in the record supporting the elements of this crime before it was
required to submit this lesser-included offense to the jury.
                                            7
            THE COURT:         Okay.     That’s your               position   and
      Mr. Ferguson’s position. Mr. Bevel thinks––
             MR. BEVEL: Well I’ll—I’ll––
             MR. STANDAFER: I think Mr. Ferguson is correct. And––
      and for strategic––I’ll just say for the record on behalf of my
      client, for strategic reasons, also, and based on the facts, I don’t
      think it’s in my client’s best interest to submit voluntary
      manslaughter.

At that point, the attorneys for codefendant, Carl Spates, requested that

voluntary manslaughter be included in the court’s instructions, claiming it

was a lesser-included offense of first-degree murder and there was

substantial evidence to support its submission. The trial court ultimately

determined there was not a factual basis for this offense and did not submit

voluntary manslaughter to the jury.

      We do not think the defendant preserved error on this issue. The only

position   articulated   to   the   court       on   behalf   of   the   defendant   was

Mr. Standafer’s opinion that an instruction on voluntary manslaughter was

not supported by the evidence and was not desirable for strategic reasons.

Although the trial court was aware there was a disagreement between the

defendant’s attorneys with respect to whether it was in the defendant’s

interest to have an instruction on this lesser-included offense, it clearly

appeared that Mr. Standafer’s position prevailed as between the defendant’s

counsel. The fact that cocounsel harbored doubts about the chosen strategy

is not sufficient to preserve error in the face of the express waiver made by

Mr. Standafer on the defendant’s behalf.

      The court of appeals addressed the merits of the defendant’s claim

that an instruction on voluntary manslaughter should have been given.

Because the defendant did not preserve error on this issue, we vacate that

part of the court of appeals’ decision holding the trial court did not err in

refusing to submit voluntary manslaughter as a lesser-included offense.
                                      8

      III. Mutual-Combat Instruction.

      A. Scope of Review. “[W]e review challenges to jury instructions for

correction of errors at law.” Anderson, 692 N.W.2d at 363. Our review is to

determine whether the challenged instruction accurately states the law and

is supported by substantial evidence. State v. Predka, 555 N.W.2d 202, 204

(Iowa 1996).   Error in giving a particular instruction does not warrant

reversal unless the error was prejudicial to the party. Thavenet v. Davis, 589

N.W.2d 233, 236 (Iowa 1999).

      B. Instruction and Objection. At trial the court instructed the jury

as follows:

            If you find that either of the defendants, or any person or
      persons that either of the defendants was acting together with,
      were voluntarily engaged in mutual combat by shooting guns at
      each other and that, by exchanging gunfire, they jointly created
      a zone of danger likely to result in the death or injury of
      innocent bystanders, then you may also find that each of the
      combatants, including the defendant, aided and abetted each of
      the other combatants and it makes no difference which of the
      combatants fired the first shot or which of the combatants fired
      the shot which struck and killed [the victim].
            To constitute “mutual combat” there must exist a mutual
      intent and willingness to fight and this intent may be manifested
      by the acts and conduct of the parties and the circumstances
      attending and leading up to the combat.

The defendant objected to this instruction at trial on the basis that a

defendant could not be held liable as an aider and abettor under a theory of

mutual combat when the prosecution could not prove who fired the shot that

killed the innocent bystander.     On appeal, the defendant renews this

objection and also argues the instruction gave undue prominence to certain

evidentiary facts. The latter objection was not raised at trial and cannot be

asserted for the first time on appeal. See State v. Sanborn, 564 N.W.2d 813,

815 (Iowa 1997) (“A defendant may not rest an objection on one ground at

trial, and rely on another for reversal on appeal.”). Therefore, we consider
                                             9

only whether the challenged instruction was properly given under the facts

of this case.

       C. Definition of “Mutual Combat.”                   Before we can determine

whether the record supported a mutual-combat instruction, we must

establish what is meant by “mutual combat.”                  From our review of the

authorities, we conclude “mutual combat” is more than “a reciprocal

exchange of blows.” People v. Ross, 66 Cal. Rptr. 3d 438, 447 (Cal. Ct. App.

2007). It requires “a mutual intention, consent, or agreement preceding the

initiation of hostilities.” Id. (emphasis omitted); see also Sanders v. State,

659 S.E.2d 376, 380 (Ga. 2008) (“A charge on mutual combat ‘is warranted

only when the combatants are armed with deadly weapons and mutually

agree to fight.’ ” (quoting Hudson v. State, 623 S.E.2d 497, 498 (Ga. 2005)).

Thus, an express or tacit agreement to engage in violence, while sufficient, is

not required; it is enough that “there was a concurrent or mutual

expectation that a street battle would ensue.” Roy v. United States, 871 A.2d

498, 508 (D.C. Ct. App. 2005); accord Alston v. State, 662 A.2d 247, 254

(Md. 1995). 4

       We think the trial court’s definition of the term “mutual combat” was

consistent with these authorities: “To constitute ‘mutual combat’ there must


       4In Roy, the court held that proof the defendant was “armed and prepared to engage
in gun battle” was “the functional equivalent” of “a concurrent or mutual expectation” of
armed violence. 871 A.2d at 507–08. In Alston, the court acknowledged there was no
express agreement to engage in a gun battle, but concluded the jury
       had sufficient evidence from which it could find that all of the participants,
       driven by an unwritten code of macho honor, tacitly agreed that there would
       be mutual combat. The conclusion is supported by the evidence that the
       trouble began on Sunday, that following the events of Monday, Hall [a
       member of the defendant’s gang] found it necessary to go about armed, that
       D Nice [a member of the rival gang] fatalistically observed that more people
       would be hurt, and that the [defendant’s] group used the vicinity of Robert
       and Brunt Sts. as a staging area for the impending battle.
662 A.2d at 254.
                                      10

exist a mutual intent and willingness to fight and this intent may be

manifested by the acts and conduct of the parties and the circumstances

attending and leading up to the combat.” We next examine how this concept

relates to a defendant’s criminal liability for the death of an innocent

bystander.

      D. Relevancy of Mutual-Combat Situation. In other jurisdictions, a

defendant’s participation in mutual combat has been employed to assist in

proving the defendant’s responsibility for the death of an innocent bystander

even when the defendant’s act was not the direct cause of the bystander’s

death.   Criminal responsibility in these cases has rested on one of two

theories: (1) the defendant’s conduct is a proximate cause of the bystander’s

death, so the defendant is liable as a principal; or (2) the defendant’s

participation in the combat encouraged the murderous acts so as to make

the defendant liable as an aider and abettor of the actual killer. It is helpful

to review some of these cases before we analyze whether the instruction

given in this case was proper.

      1. Proximate cause liability.    In some cases, the fact that various

individuals were engaged in a gun battle has been used to establish that

conduct of a defendant, who was not proved to have fired the fatal shot, was

still a proximate cause of an innocent bystander’s death. See, e.g., People v.

Sanchez, 29 P.3d 209, 219–20 (Cal. 2001) (first-degree murder); Roy, 871

A.2d at 508 (second-degree murder); Phillips v. Commonwealth, 17 S.W.3d

870, 875 (Ky. 2000) (wanton murder); Commonwealth v. Santiago, 681

N.E.2d 1205, 1215 (Mass. 1997) (first-degree murder). In these cases, the

defendant was held criminally responsible as a principal on the basis of his

own conduct.

      For example, in Roy, the defendants were convicted of second-degree

murder stemming from an incident in which they “opened fire on one
                                              11

another on a public street, resulting in the death of an innocent bystander.”

871 A.2d at 501–02. The appeals court found no error in the trial court’s

instruction on causation, which required proof that the defendant’s conduct

was a substantial factor in the bystander’s death, but not that the defendant

fired the fatal shot. Id. at 506–07. The court noted,

       [o]ther jurisdictions have extended proximate cause liability to
       participants in gun battles, finding that an individual’s
       participation in such a battle represents a depraved indifference
       to human life such that he or she meets the mens rea for
       second-degree depraved heart murder. Further, courts have
       determined that the combined hail of bullets that result from
       such a battle are jointly responsible for the fatal injury, such
       that a determination of which defendant’s bullet “actually”
       caused the death is unnecessary. Finally, courts have found
       that a death which results from the shower of bullets created
       during this type of battle is more than reasonably foreseeable,
       i.e., conscious awareness of danger.

Id. at 507 n.10. 5

       In the Santiago case, the Massachusetts court concluded the

defendant could be found guilty of first-degree murder even if the

prosecution could not prove that “he fired the fatal shot.”                  681 N.E.2d at

1214. Noting “[t]he defendant’s acts need not be the sole or exclusive cause

of death,” the court held:

       By choosing to engage in a shootout, a defendant may be the
       cause of a shooting by either side because the death of a
       bystander is a natural result of a shootout, and the shootout
       could not occur without participation from both sides.

Id. at 1215.




       5The     District of Columbia court approved an instruction on “proximate cause
liability” for second-degree murder that required the prosecution to prove: (1) the defendant
“was armed and prepared to engage in a gun battle”; (2) “the defendant did, in fact, engage
in a gun battle” at the time and place alleged; (3) “the defendant did not act in self-defense”;
(4) the defendant’s conduct “was a substantial factor” in the bystander’s death; and (5) “it
was reasonably foreseeable that death or serious injury to innocent bystanders could occur
as a result of the defendant’s conduct.” Roy, 871 A.2d at 506–07 n.8.
                                      12

      2. Liability as an aider and abettor. A similar result has been reached

under the theory that a person who engages in mutual combat aids and

abets the person whose gun fired the fatal bullet, regardless of whether the

shooter and the defendant were on the same side. See, e.g., Alston, 662 A.2d

at 252; People v. Russell, 693 N.E.2d 193, 195 (N.Y. 1998); cf. State v. Garza,

916 P.2d 9, 15 (Kan. 1996) (holding defendant could be held liable as an

aider and abettor for his opposing combatant’s injury of an innocent

bystander struck by a stray bullet). For example, in Alston, the Maryland

court affirmed a second-degree murder conviction of a participant in a gun

battle, despite proof that the innocent bystander was shot by a member of

the rival gang.   662 A.2d at 247–48.      The court rejected the defendant’s

argument that he could not be found to have aided and abetted the killer

because they were adversaries in the gun battle, stating:

      Each participant, prior to the actual combat, was willing to use
      lethal force when the opposing groups met. Each participant
      manifested depraved heart malice toward non-combatants when
      the two groups met and sought to kill each other as they
      previously had determined to do. There would have been no
      mutual combat, and no murder of an innocent person, but for
      the willingness of both groups to turn an urban setting into a
      battleground. In this sense each participant is present, aiding
      and abetting each other participant, whether friend or foe, in the
      depraved conduct.

Id. at 252; accord Reyes v. State, 783 So. 2d 1129, 1132–33 (Fla. Dist. Ct.

App. 2001) (holding “each participant in a mutually agreed-to-gun battle in a

public place may be held accountable for any death or injury to an innocent

person which results from that confrontation”).

      Similarly, in Russell, the defendant’s second-degree murder conviction

was upheld even though it could not be established who shot the stray bullet

that killed an innocent bystander. 693 N.E.2d at 194. Finding “there was

adequate proof . . . that the three defendants tacitly agreed to engage in the

gun battle that placed the life of any innocent bystander at grave risk,” id. at
                                       13

195, the court concluded there was adequate proof that all three defendants

acted with the requisite mental culpability “and that they intentionally aided

and encouraged each other to create the lethal crossfire that caused the

death of [the victim],” id. at 196.

      E. Relevant Iowa Cases.         Our court has not had the occasion to

consider the criminal liability of mutual combatants for injury to an innocent

bystander.    We have, however, addressed criminal responsibility in an

analogous situation––drag racing. See State v. McFadden, 320 N.W.2d 608

(Iowa 1982); State v. Youngblut, 257 Iowa 343, 132 N.W.2d 486 (1965). In

Youngblut, the defendant and another driver were drag racing in the streets

of Waterloo, Iowa, when the other driver struck a third vehicle, causing the

death of a passenger in the third vehicle. 257 Iowa at 345–46, 132 N.W.2d

at 487. A charge of manslaughter against the defendant was dismissed by

the district court. Id. at 344, 132 N.W.2d at 486. The defendant sought to

uphold the dismissal on the state’s appeal, arguing the minutes of testimony

did not charge a crime because “they do not state decedent’s death was

caused by an unlawful act of defendant” insofar as there was no contact

between the defendant’s car and the third party’s vehicle. Id. at 344–45, 132

N.W.2d at 486. This court reversed, holding:

      A defendant may be found guilty of manslaughter by entering
      into an agreement to conduct an automobile race on a city street
      and doing so in a reckless manner, with wanton disregard for
      the safety of others, from which the death of another results.

Id. at 346, 132 N.W.2d at 487. We relied on a California case in which the

court had held that the acts of both drivers in a drag race “ ‘led directly to

and were a proximate cause of [an innocent person’s death].’ ” Id. at 347,

132 N.W.2d at 488 (quoting People v. Kemp, 310 P.2d 680, 683 (Cal. Ct. App.

1957)).
                                         14

      In McFadden, the defendant was a participant in a drag race that

became deadly when the vehicle driven by his opponent, Sulgrove, hit a third

vehicle, killing Sulgrove and a passenger in the third vehicle. 320 N.W.2d at

609–10.     The defendant was convicted of two counts of involuntary

manslaughter.       Id. at 610.      With respect to the innocent victim, the

defendant was found guilty as a principal and under theories of vicarious

liability––aiding   and   abetting    and   joint   criminal   conduct––based    on

Sulgrove’s commission of involuntary manslaughter.             Id.   The defendant’s

responsibility for Sulgrove’s death could not be sustained under a vicarious

liability theory, however, because Sulgrove could not be guilty of involuntary

manslaughter with respect to his own death.           Id. (noting “the involuntary

manslaughter statute requires proof that the perpetrator caused the death of

‘another person’ ” (quoting Iowa Code § 707.5(1))). Consequently, on appeal

this court focused its discussion on whether the defendant was liable as a

principal for involuntary manslaughter, specifically whether “defendant’s

reckless commission of the public offense of drag racing was a proximate

cause of the [two] deaths.” Id. We concluded there was sufficient evidence

from which the fact finder could find that, “ ‘but for the defendant’s conduct,

the harm or damage would not have occurred.’ ” Id. at 615 (quoting State v.

Marti, 290 N.W.2d 570, 584–85 (Iowa 1980)); see also Marti, 290 N.W.2d at

579 (“It is not essential for conviction in all cases that the accused actively

participate in the immediate physical impetus of death.”).

      Relying on the causation analysis of McFadden and Marti, the Iowa

Court of Appeals has affirmed a second-degree murder conviction of a

participant in a gun battle even though the fatal bullet that hit an innocent

bystander was fired by the defendant’s opponent.               State v. Brown, 589

N.W.2d 69, 72 (Iowa Ct. App. 1998), overruled on other grounds by State v.

Reeves, 636 N.W.2d 22, 26 (Iowa 2001). The defendant in Brown claimed on
                                      15

appeal that there was insufficient proof that his conduct was a proximate

cause of the bystander’s death. Id. at 74. The court of appeals rejected this

contention:

             [The defendant’s] engagement in conduct that created a
      very high risk of death or serious bodily injury to others was a
      proximate cause of [the bystander’s] death. This is true whether
      it was the defendant or another participant in the shoot-out who
      fired the shot that killed the innocent bystander.

Id. at 74–75 (citations omitted).   The court also held “that if death to an

innocent bystander ensues from gang-style gunplay in a crowded urban

area, each participant in the lethal encounter has exhibited malice.” Id. at

75. Therefore, the court concluded, “[t]he State presented sufficient evidence

of malice aforethought by showing [the defendant’s] intent to cause someone

bodily harm immediately before [the bystander’s] death.” Id.

      Our cases support a conclusion that the acts of a defendant engaged

in mutual combat can be the proximate cause of injury to an innocent

bystander that directly results from the act of another combatant. Provided

the defendant possesses the requisite mens rea for the crime charged, he can

be held liable as a principal.   We think the same participation in mutual

combat can also provide a basis to hold the defendant responsible as an

aider and abettor under Iowa law.

            To sustain a conviction on the theory of aiding and
      abetting, the record must contain substantial evidence the
      accused assented to or lent countenance and approval to the
      criminal act either by active participation or by some manner
      encouraging it prior to or at the time of its commission.

State v. Tangie, 616 N.W.2d 564, 574 (Iowa 2000).       We agree with those

courts that have concluded participants in mutual combat encourage each

other to engage in the potentially lethal conduct that leads to the injury of

innocent bystanders, thereby supporting liability as an aider and abettor.
                                     16

      F. Propriety of Mutual-Combat Instruction.         The mutual-combat

instruction given by the trial court in this case was very narrow, addressing

only one element of the first-degree murder charge.          The marshaling

instruction of the court on this charge contained two alternatives, one based

on principal liability and one based on a theory of aiding and abetting. The

first alternative required that the jury find (1) the defendant shot the

bystander, (2) the bystander died as a result of being shot, (3) the defendant

acted with malice aforethought, and (4) the defendant was participating in

one of the specified forcible felonies. The second alternative required proof

that (1) “some person” shot the bystander, (2) the bystander died as a result

of being shot, (3) the person who shot the bystander acted with malice

aforethought, (4) the person who shot the bystander was participating in one

of the specified forcible felonies, and (5) the defendant either aided and

abetted the shooter or acted together with the shooter.        The jury was

instructed that “ ‘[a]id and abet’ means to knowingly approve and agree to

the commission of a crime, either by active participation in it or by

knowingly advising or encouraging the act in some way before or when it is

committed.”

      The court’s instruction on mutual combat addressed only the fifth

element of the second alternative: the defendant’s act of aiding and abetting.

The instruction provided:

      If you find that either of the defendants, or any person or
      persons that either of the defendants was acting together with,
      were voluntarily engaged in mutual combat by shooting guns at
      each other and that, by exchanging gunfire, they jointly created
      a zone of danger likely to result in the death or injury of
      innocent bystanders, then you may also find that each of the
      combatants, including the defendant, aided and abetted each of
      the other combatants and it makes no difference which of the
      combatants fired the first shot or which of the combatants fired
      the shot which struck and killed [the victim].
                                    17

(Emphasis added.) The court did not instruct on mutual combat as a basis

for proximate cause liability as a principal, nor as a basis to prove the

required mens rea for first-degree murder. Therefore, the issue presented in

this case, as framed by the defendant’s objection, is simply whether a

defendant engaged in mutual combat may be held to have aided and abetted

a cocombatant when the identity of the murderer cannot be established.

      We first note the general principle that it is not necessary for the

prosecution to prove the identity of the murderer to establish that a

defendant “aided or abetted the murderer or engaged in joint criminal

conduct with him.”   State v. Kern, 307 N.W.2d 29, 30 (Iowa 1981).       The

prosecution must simply prove that the murderer was one of the persons

whom the defendant aided and abetted. Id. We think the same principles

hold true when aiding-and-abetting liability is imposed on a mutual

combatant.    The primary distinction between garden-variety aiding and

abetting and mutual-combat aiding and abetting is that the existence of

mutual combat provides a factual basis for holding a defendant combatant

vicariously liable for the murderous conduct of any other combatant, even

an opponent of the defendant.    We find no basis in this distinction that

would warrant a different rule with respect to the necessity of establishing

the identity of the murderer.   So long as the murderer is shown to be

another participant in the mutual combat, the necessary factual link

between the defendant’s aiding and abetting and the actual murder is

present.   Therefore, we hold a mutual-combat instruction on aiding and

abetting is appropriate even when the identity of the murderer cannot be

shown.

      Here, the jury was instructed that, if the defendant was engaged in

mutual combat, the jury could find that he aided and abetted every other

combatant.   The marshaling instruction required that the State prove the
                                             18

defendant aided and abetted the person who shot the bystander. Therefore,

before the jury could have found the defendant guilty as an aider and abettor

under the mutual-combat instruction, it would have to find that the shooter

was one of the combatants.            Our review of the record shows there was

substantial evidence that the fatal shot came from one of the persons

engaged in the shootout, even though the identity of everyone involved could

not be ascertained. We conclude, therefore, that the trial court did not err in

giving a mutual-combat instruction notwithstanding the State’s inability to

prove the identity of the shooter. 6

       IV. Disposition.

       The defendant did not preserve error on the trial court’s failure to

submit the lesser-included offense of voluntary manslaughter.                      The trial

court did not err in instructing on mutual combat as a basis for aider-and-

abettor liability. We vacate the court of appeals’ decision only with respect to

its discussion of the alleged instructional errors and affirm the defendant’s

conviction and sentence.

       DECISION OF COURT OF APPEALS VACATED IN PART; DISTRICT

COURT JUDGMENT AFFIRMED.

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



       6Anticipating that our conclusion there is no merit to the challenge made in this case
to the mutual-combat instruction may prompt trial courts to use the same instruction given
in this case in future trials, we caution that the instruction at issue here may not be free
from error. The instruction given in this case allows a finding of aiding and abetting if
“either of the defendants, or any person or persons that either of the defendants was acting
together with, were voluntarily engaged in mutual combat.” (Emphasis added.) But for
aiding-and-abetting liability, the defendant himself must “ ‘knowingly approve[] and agree[]
to the commission of a crime, either by active participation in it or by knowingly advising or
encouraging the act in some way before or when it is committed.’ ” State v. Allen, 633
N.W.2d 752, 754 (Iowa 2001) (emphasis added) (quoting I Iowa Crim. Jury Instruction 200.8
(1998)). Arguably, the focus of the instruction given by the court in this case is too broad,
and the instruction should require that the defendant himself be engaged in mutual combat
before he can be held to have aided and abetted other combatants.
