                    IN THE COURT OF APPEALS OF IOWA

                                   No. 18-2003
                               Filed May 13, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DEVARIO D. TALLEY,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Joel W. Barrows,

Judge.



      A defendant appeals his convictions for eluding and three counts of child

endangerment. REVERSED AND REMANDED FOR NEW TRIAL.




      Martha J. Lucey, State Appellate Defender, and Melinda J. Nye, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant Attorney

General, for appellee.



      Considered by Tabor, P.J., and May and Greer, JJ.
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TABOR, Presiding Judge.

       Devario Talley challenges his convictions for eluding and child

endangerment. He contends the State did not offer enough evidence to merit an

instruction on the alternative theory of aiding and abetting. Even viewing the

evidence in the light most favorable to the State, the record contains insufficient

proof that Talley knowingly advised or encouraged his brother to lead Davenport

police on a high-speed chase, placing child passengers at risk. Because the jury

returned general verdicts, we must reverse and remand for a new trial.

       I.     Facts and Prior Proceedings

       Rock Island Police Officer Philip Ledbetter was driving an unmarked vehicle

when he asked fellow officer Luke Serra to pull over a tan Chevrolet Suburban.

The Suburban’s driver, Talley, was using his cell phone. Officer Serra signaled

Talley to stop. Talley complied by pulling into a parking lot but kept his engine

running. Officer Serra approached the driver’s window and asked for Talley’s

license and proof of insurance. Talley handed over his driver’s license and told

Officer Serra that he had proof of insurance saved on his phone. During this

exchange, video footage from Officer Serra’s body camera showed the legs of

another individual sitting in the front passenger seat.

       While waiting for Talley to find his proof of insurance, Officer Serra stood

outside Talley’s vehicle. Still communicating with dispatch, Officer Serra opened

the driver’s door and asked Talley to step out. Talley shook his head, engaged the

gear lever with his left hand, and sped off. The driver’s door was still open as

Talley made a sharp right turn onto the adjacent road. In that turn, Talley’s wallet
                                         3


fell from the Suburban. After watching the vehicle speed off, Officer Serra picked

up Talley’s wallet from the road.

        Having watched the encounter from his unmarked pickup, Officer Ledbetter

followed Talley. Officer Ledbetter later testified that Talley was speeding and

driving erratically in Rock Island before he lost sight of Talley’s vehicle for a few

seconds. When Officer Ledbetter regained sight of the Suburban, Talley was

driving toward the Centennial Bridge, which crossed the Mississippi River into

Iowa.

        To avoid any more police attention, Talley slowed down and obeyed traffic

laws on the bridge. Obtaining permission from his supervisors, Officer Ledbetter

followed Talley into Davenport. He called dispatch who notified the Davenport

police that Talley had run from the police and was heading into their jurisdiction.

Officer Ledbetter gave up tailing Talley when the Suburban was about two car

lengths ahead of him and Davenport police were three cars lengths behind.

        As Davenport police intercepted the Suburban, Corporal Nathan Schroeder

turned on his lights and siren near Fifteenth and Ripley Street. He recalled the

vehicle traveling “at a high rate of speed” southbound down an alley. The corporal

continued the pursuit as the Suburban returned to the city streets, eventually

turning northbound, the wrong way, onto Harrison Street. On the border of Vander

Veer Park, the Suburban veered onto the sidewalk for a bit before returning to

Harrison Street. Corporal Schroeder recalled reaching speeds between 80 and 90
                                          4


miles per hour several times during the chase.1 After turning off Harrison Street

onto Gaines Street, the Suburban ran two stop signs. Eventually, it pulled into an

alley off Division Street.

       By the time Corporal Schroeder caught up, Officer Joseph Dorton was

already on the scene. When Officer Dorton first saw the Suburban driving down

Division Street, it was “[v]ery erratic, that’s why officers that were on the pursuit

couldn’t keep up with it, just because of how fast it was going.” As Officer Dorton

pulled up behind the Suburban in the alley, he noticed “the vehicle was actually

smoking . . . so that’s what caught our eye.”

       Next, both sets of officers approached the Suburban on foot. Because of

its tinted windows, they couldn’t tell if any occupants had fled but prepared to

conduct “a felony stop” with weapons drawn. To their surprise, what the officers

saw were two little girls climb out of the back seat, the second holding a baby.

After holstering their weapons, the officers found the front seat empty. Officer

Dorton described the children as “very, very scared.”          The three backseat

passengers were Talley’s daughters, ages eleven, six, and one. The eldest child

complained of head pain. She had not been wearing a seatbelt and hit the roof of

the Suburban as it careened through Davenport’s streets.

       When an officer asked the six-year-old who was driving, she said her uncle.

She explained “her daddy got into a white car with two girls.” The uncle was

Queshan Harris, Talley’s younger brother. Harris testified that after they drove



1 Corporal Schroder worried about the pursuit’s threat to public safety: “It was right
in the middle of the busiest kind of the rush hour time where people are coming
from work, coming home. It was the busiest time of the day.”
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over the bridge into Iowa, Talley stopped the Suburban behind the YMCA. Harris

said Talley “got out and got in the car with two females, and I started to drive.”

Talley’s three little girls remained seated in the back of the Suburban.

       Harris testified to heading up the hill toward Harrison Street. By his account,

as he was “coming down Ripley and turned into an alley, . . . they kind of tried to

swarm me, so I got scared and kept driving.” Harris admitted driving the wrong

direction down one-way streets and reaching speeds of more than twenty miles

above the posted limit.      Shortly after finding the children in the abandoned

Suburban, Corporal Schroeder located their uncle hiding in a detached garage

down the alleyway. Police arrested Harris for child endangerment and eluding.

Before Talley’s trial, Harris pleaded guilty to those charges.

       Unlike the quick arrest of Harris, Davenport police did not track down Talley

on March 27, 2018, the day of the chase. The State secured an arrest warrant for

Talley on April 3 but did not take him into custody until June. The trial information,

filed in July, charged him with one count of eluding or attempting to elude a law-

enforcement vehicle in violation of Iowa Code section 321.279(2) (2018). The

State also charged Talley with three counts of child endangerment in violation of

section 726.6(7)—one count for each of his daughters present for the eluding.

       At trial, the State introduced into evidence the recording of a phone call

Harris placed from jail to Talley before his arrest. In the call, Harris complains

about difficulty obtaining pretrial release. Talley tells him: “They mad as hell . . . ,

you been driving around Davenport for thirty minutes running from the police. They

mad.” During the call, Harris acknowledged driving the Suburban. Talley joked

about other people calling him mid-chase to comment on his erratic driving in the
                                          6


neighborhood, but he replied: “no that was lil’ bro.” Harris described how one of

his nieces entreated from the backseat: “I know uncle this is the wrong time to ask,

but if you get away from the police, can you take me to use the bathroom?” Talley

guffawed: “You scared the piss out of my baby.”

       The State also introduced two jail phone conversations recorded after

Talley’s arrest. In the first conversation, Talley asks the woman on the line to get

Harris to “take the charges” for him. In the second conversation, the woman says

she “talked to Queshan and he took the charge, he took a plea.” Talley replies:

“Tell him I said thanks.”

       At the close of trial, the jury returned general verdicts, convicting Talley on

all four counts from which he now appeals.

       II.    Scope and Standards of Review

       We review a challenge to the sufficiency of the evidence to submit a jury

instruction for correction of legal error. State v. Neiderbach, 837 N.W.2d 180, 190

(Iowa 2013). When the disputed instruction defines the parties to a crime under

chapter 703, and thus adds a vicarious-liability alternative to the marshalling

instructions, we review for substantial evidence. See State v. Smith, 739 N.W.2d

289, 293 (Iowa 2007). We find substantial evidence for the alternative theory if,

when viewed in the light most favorable to the State, the proof could convince a

rational jury the defendant is guilty of the charged crimes beyond a reasonable

doubt. Id.

       III.   Analysis

       On appeal, Talley raises two issues. One, did the district court err by

instructing the jury on the theory of aiding and abetting? Two, was Talley’s trial
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counsel ineffective for not requesting a jury instruction on territorial jurisdiction?

Because our resolution of the first issue is dispositive, we need not address the

second claim.

       Out of the gate, the State did not advance an aiding-and-abetting theory.

The trial information alleged Talley acted as the principal in the eluding and child

endangerment counts. At trial, after defense counsel moved for judgment of

acquittal, the prosecutor asserted: “A reasonable trier of fact could certainly

conclude from this information that Mr. Talley was in fact the person driving, and

was the person who began leading all of the officers in Davenport in Scott County

on this high-speed chase which has been testified to by multiple officers.”

       In fact, not until the parties were assembling the jury instructions did the

State suggest it was pursuing a theory of aiding and abetting. The prosecutor

asked for the aiding-and-abetting instruction, explaining: “we have testimony from

Mr. Harris that two different people were involved in the commission of this crime.”

Over a defense objection,2 the district court ruled: “the evidence presented so far

justifies the instruction for aiding and abetting.”

       After that ruling, the jury received this aiding-and-abetting instruction:

       All persons involved in the commission of a crime, whether they
       directly commit the crime or knowingly “aid and abet” its commission,
       shall be treated in the same way.
               “Aid 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. Conduct following the crime may be
       considered only as it may tend to prove the defendant’s earlier

2 The State argues the defense objection was not specific enough to preserve
error. We disagree. Defense counsel preserved error by objecting to the
prosecutor’s proposed aiding-and-abetting instruction and by obtaining the court’s
decision that sufficient evidence supported that alternative theory.
                                          8


       participation. Mere nearness to, or presence at, the scene of the
       crime, without more evidence, is not “aiding and abetting”. Likewise,
       mere knowledge of the crime is not enough to prove “aiding and
       abetting”.
               The guilt of a person who knowingly aids and abets the
       commission of a crime must be determined only on the facts which
       show the part he has in it, and does not depend upon the degree of
       another person’s guilt.
               If you find the State has proved a defendant directly
       committed the crime, or knowingly “aided and abetted” other person
       or persons in the commission of the crime, then the defendant is
       guilty of the crime charged.

That uniform instruction reflected the aiding-and-abetting definition in Iowa Code

section 703.1.

       Under the marshaling instruction for eluding, the State had to prove Talley

“drove a vehicle” and “willfully failed to bring the motor vehicle to a stop or

otherwise eluded a marked official law enforcement vehicle driven by a uniformed

peace officer after being given a visual and audible signal to stop.” See Iowa Code

§ 321.279(2). Alternatively, under its aiding-and-abetting theory, the State had to

show Talley knowingly advised or encouraged Harris to do those acts.

       Under the marshalling instructions for child endangerment, the State had to

prove Talley “was the parent or person having custody or control” of the children,

the children were under fourteen, and he “acted with knowledge that he was

creating a substantial risk to [their] physical, mental, or emotional safety.” See id.§

726.6(7). Alternatively, under its aiding-and-abetting theory, the State had to show

Talley knowingly advised or encouraged Harris to do those acts.

       Talley contends the State presented insufficient evidence to support the

aiding-and-abetting instruction. In Talley’s estimation, the record lacks substantial
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evidence that he “assented to or lent countenance and approval to” Harris’s acts

of eluding or child endangerment.3

       It is fundamental that someone convicted of aiding and abetting must be

aware of the offense “at the time of or before its commission.” See State v.

Henderson, 908 N.W.2d 868, 876 (Iowa 2018) (quoting State v. Tangie, 616

N.W.2d 564, 574 (Iowa 2000)). Knowledge of the crime is essential. Neiderbach,

837 N.W.2d at 211. But neither knowledge nor presence at the scene of the crime

can alone prove aiding and abetting. See Henderson, 908 N.W.2d at 876.

       To sustain Talley’s convictions on the theory of aiding and abetting, the

State must show he advised or encouraged Harris to elude the Davenport police—

and thereby endanger the children—before or during the chase. But the State

offered no evidence that both Talley and Harris were in the Suburban during the

Iowa pursuit. None of the Iowa officers testified to seeing Talley despite chasing

the Suburban for ten to fifteen minutes through Davenport. And after the chase,

the six-year-old sister told police her uncle, not her father, had been driving.

       Likewise, the jail call between Talley and Harris undermines any

presumption that both brothers were in the car during the chase in Iowa. Talley

told Harris it was hard to secure bail because the authorities were “mad as hell”

that Harris was “driving around Davenport for thirty minutes running from police.”

Talley also recounted how he told others that it was not him who was driving

recklessly in Davenport but his little brother. During the same call, Harris admitted



3 Although Harris was not the parent, if he was driving the Suburban, he had
“control” over the instrumentality contributing to the risk to the children. See State
v. Anspach, 627 N.W.2d 227, 235 (Iowa 2001).
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driving the Suburban in Davenport. In line with that admission, Harris pleaded

guilty to eluding and child endangerment.

       Without evidence that Talley encouraged or lent countenance to Harris’s

erratic driving while it was happening, the State is left with the option of showing

Talley did so before his brother’s eluding started. Yet the State offered no evidence

Talley encouraged Harris—in advance—to go lead police on a high-speed chase

through Davenport during rush hour with Talley’s three children in the backseat.

       Granted, as the State argues, direct evidence is unnecessary to prove

aiding and abetting. The State may establish by circumstantial evidence that the

accused knew about the crime before or at the time of its commission. See Tangie,

616 N.W.2d at 574.           Circumstantial evidence may include “presence,

companionship, and conduct before and after the offense is committed.” State v.

Lewis, 514 N.W.2d 63, 66 (Iowa 1994) (citation omitted). In identifying relevant

circumstantial evidence, the State concedes “Harris’s testimony superficially

supported the defense narrative” that Talley was not in the Suburban during the

Iowa chase. But the State grades Harris’s testimony as “demonstrably false,

conveniently vague, and self-sacrificing” thus providing circumstantial evidence of

Talley’s guilt.

       Based largely on its critique of Harris’s credibility, the State defends the

district court’s decision to instruct on both theories. On the theory Talley was the

principal, the State contends: “If Harris was lying about driving, then Talley was

driving the vehicle in circles waiting for his ride and was liable for his attempt at

eluding the police and the danger he created for his children.” On the theory Talley

was an aider and abettor, the State reasons: “If—as their recorded conversation
                                         11


suggested—Harris drove the vehicle during some part of the Davenport pursuit as

Talley attempted to contact people to pick him up mid-chase, then Harris likely took

control of the Suburban and care of Talley’s children at his brother’s direction.”

       First, we question whether a “likelihood” is enough to prove beyond a

reasonable doubt that Talley aided and abetted Harris’s acts of eluding and child

endangerment. See Henderson, 908 N.W.2d at 876 (explaining “foreseeability, as

opposed to knowledge or intent is not enough to sustain aiding-and-abetting

conviction”); Smith, 739 N.W.2d at 294 (finding insufficient evidence to submit to

the jury the State’s claim that Smith was guilty—under theory of joint criminal

conduct—of crimes committed by his confederate who shot a deputy).

       Second, speculation that Harris took control of the vehicle and the children

at Talley’s direction is not the same as proving Talley aided and abetted those

criminal offenses. See Henderson, 908 N.W.2d at 877 (citing with approval federal

authority holding conviction for aiding and abetting requires “not just an act

facilitating one or another element, but also a state of mind extending to the entire

crime”); see also State v. McGrean, No. 12-0537, 2013 WL 1453147, at *4 (Iowa

Ct. App. Apr. 10, 2013) (finding evidence created only “suspicion, speculation, or

conjecture” about McGrean’s participation as an aider and abettor). Where is the

State’s proof that, by handing over control of the Suburban, Talley encouraged

Harris to exceed the speed limit by more than twenty-five miles per hour and to

“willfully fail” to stop when signaled by a uniformed officer? Where is the State’s

proof that, by leaving the children in their uncle’s care, Talley encouraged Harris

to knowingly create a substantial risk to their health and safety?
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       In the end, neither direct nor circumstantial evidence sustains the

prosecutor’s belated theory of aiding and abetting. The defense case pointing to

Harris as the driver did not automatically open the door to a theory of vicarious

liability. As the prosecutor said in resisting the motion for judgment of acquittal, a

reasonable jury could believe Harris was lying and Talley “was in fact the person

driving” during the high-speed chase in Davenport. But conversely, the State did

not generate a jury question on the alternative theory that Harris was telling the

truth and Talley encouraged Harris to elude the police or endanger Talley’s

children. The record lacked sufficient evidence to support a jury instruction on

aiding and abetting.

       Because the jury returned general verdicts—not specifying between the

State’s two theories—we must reverse and remand for a new trial.4 See Smith,

739 N.W.2d at 295 (citing State v. Hogrefe, 557 N.W.2d 881 (Iowa 1996)). Having

reversed on the insufficient proof of aiding and abetting, we find it unnecessary to

resolve Talley’s ineffective assistance claim. But should Talley go to trial again,

we emphasize the marshalling instructions should require the jury to find he

committed the crimes “wholly or partly within the State of Iowa.” See State v.

Liggins, 524 N.W.2d 181, 185 (Iowa 1994) (discussing territorial jurisdiction).

       REVERSED AND REMANDED FOR NEW TRIAL.




4 But see Iowa Code § 814.28 (2019) (barring appellate revision of a verdict “on
the basis of a defective or insufficient theory if one or more of the theories
presented and described in the complaint . . . is sufficient to sustain the verdict on
at least one count”).
