                   IN THE COURT OF APPEALS OF IOWA

                                  No. 14-1239
                              Filed June 15, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JAMES ALON SHORTER,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Douglas F. Staskal,

Judge.



      James Shorter appeals his judgment and sentence for second-degree

murder. REVERSED AND REMANDED.



      Jennifer J. Bonzer of Johnson & Bonzer, P.L.C., Fort Dodge, for appellant.

      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant

Attorney General, for appellee.



      Heard by Danilson, C.J., and Vaitheswaran and Tabor, JJ.
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VAITHESWARAN, Judge.

       James Shorter appeals his judgment and sentence for second-degree

murder. He raises a number of claims, including a challenge to the sufficiency of

the evidence supporting the jury’s finding of guilt. We find this issue dispositive.

       The jury was instructed that the State would have to prove the following

elements of second-degree murder:

              1. On or about August 25, 2013, the defendant, individually
       or through joint criminal conduct or through aiding and abetting
       another, assaulted Richard Daughenbaugh.
              2. Richard Daughenbaugh died as a result of being
       assaulted.
              3. The defendant, individually or through joint criminal
       conduct or someone he aided and abetted, acted with malice
       aforethought.

Shorter contends the State presented insufficient evidence to support the finding

of guilt under any of the three posited theories: (1) individual conduct, (2) aiding

and abetting, or (3) joint criminal conduct.          “[W]e will uphold a verdict if

substantial evidence supports it.” State v. Tyler, 873 N.W.2d 741, 746-47 (Iowa

2016) (citation omitted).

I.     Sufficiency of the Evidence

       A.     Individual Conduct

       Shorter contends the State failed to prove he was one of the people who

assaulted Daughenbaugh.         Alternatively, he argues he “was not the ‘but for’

cause of Daughenbaugh’s death.”

       The Iowa Supreme Court recounted the pertinent facts in Tyler, an opinion

involving a separately tried codefendant. See id. at 744-45. The facts developed

in Tyler’s trial were similar but not identical to the facts developed in the joint trial
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of Shorter, Yarvon Russell—whose appeal we resolve separately—and a third

co-defendant who was acquitted.

      A reasonable juror could have found that a crowd of up to forty teenagers

left a concert in West Des Moines and gathered near a pedestrian bridge in

downtown Des Moines, where they drank and partied. Richard Daughenbaugh

tried to join the party. The crowd surrounded him ominously. Tyler punched him

in the face, and Daughenbaugh fell to the ground.        Other people took turns

jumping on him.

      Monica Perkins, who had been fishing on the bridge when the teenagers

arrived, believed something was “going to happen.” As the teenagers began

attacking Daughenbaugh, she pushed through the crowd and attempted to

protect him by spreading her body over his. Members of the crowd kicked her.

Perkins retrieved her phone and called 911.

      Daughenbaugh eventually died. The cause of death was internal bleeding

due to a severely torn mesentery, a membrane connecting several body organs

to the abdominal wall.

      A detective with the Des Moines Police Department showed Perkins a

photo array and asked her if she recognized anyone “from the scene from what

she saw [of] the assault.” Perkins identified Shorter. She again identified Shorter

at trial, stating “he was one of the guys that stomped on [Daughenbaugh]” and “I

seen him jump on his face.” She acknowledged an inability to identify him during

her deposition.

      A teenager also identified Shorter as one of the people who kicked

Daughenbaugh, although she denied Shorter’s involvement when the police first
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spoke to her.     Another teenager testified Shorter called her the night of the

assault and asked her to serve as his alibi. While she and others stated Shorter

did not participate in the attack, it was the jury’s function “to weigh the evidence

and place credibility where it belong[ed].” State v. Shanahan, 712 N.W.2d 121,

135 (Iowa 2006). We conclude substantial evidence supported a finding that

Shorter assaulted Daughenbaugh.

       We turn to Shorter’s fallback argument that the State failed to prove his

assault caused Daughenbaugh’s death.         In his view, even if he “jumped on

Daughenbaugh’s head, the blow [he] delivered did not kill [Daughenbaugh].”

       The Iowa Supreme Court has applied the Restatement (Third) of Torts to

causation questions. See Tyler, 873 N.W.2d at 747-48. Under this standard, we

must determine whether the criminal act “was a factual cause of the harm.” Id. at

748 (quoting State v. Tribble, 790 N.W.2d 121, 126-27 (Iowa 2010)). This is

synonymous with the traditional “but-for” test. See id. “Except where multiple

acts contribute to cause a consequence, the determination of factual causation

turns simply on whether the harm would not have occurred absent the

[defendant’s] conduct.”    Id. (citation omitted).   Where multiple causes are

present, “our law declares each act to be a factual cause of the harm.”          Id.

(citation omitted).

       In Tyler, the court found substantial evidence to support a finding that

Tyler’s punch was a factual cause of Daughenbaugh’s death. See id. at 748-49.

The court proceeded to analyze legal causation under the old “proximate cause”

test and the more recent “scope of liability” test. See id. The court surmised “the

chain of causation was far from attenuated” and the “group assault . . . was a
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reasonably foreseeable consequence or within the range of harms of Tyler’s

initial act of knocking down Daughenbaugh with a punch to his head.” Id. at 749.

The court concluded “a reasonable juror could find that the fatal kicking and

stomping was ‘part of a chain of events set in motion by the assailant’s act and

leading directly to the victim’s death.’” Id. (citation omitted).

       The Tyler court’s discussion of the causation issue is controlling. Even if

Shorter’s assault was directed to Daughenbaugh’s head rather than his

abdominal region, the assault was part of a chain of events that resulted in

Daughenbaugh’s death.          The State proved the individual liability theory of

second-degree murder.

       B.     Aiding and Abetting

       The jury was instructed:

       “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. . . . 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.”

Shorter contends there is insufficient evidence he “delivered the blows that led to

Daughenbaugh’s       death,”    “advised    or   encouraged         anyone   to   assault

Daughenbaugh,” “agree[d] with the other individuals who actually caused

Daughenbaugh’s death,” or “cheered these people on.”                 To the contrary, a

reasonable juror could have found Shorter actively participated in inflicting one or

more blows to Daughenbaugh’s body or head and Shorter’s act of kicking

Daughenbaugh encouraged others to do the same. See id. at 750-51 (“Tyler’s

act of decking Daughenbaugh with a punch to his face after a crowd had
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surrounded Daughenbaugh could be regarded as encouragement for what

subsequently happened.”). Substantial evidence supported the jury’s finding of

guilt under an aiding and abetting theory.

       C.     Joint Criminal Conduct

       Shorter contends the State failed to prove guilt under a joint criminal

conduct theory. In his view “[t]here is no showing [he] was acting in concert with

the persons who caused the death of Daughenbaugh. There is no evidence of

an agreement to assault Daughenbaugh. . . .         There was no different crime

committed. Everyone was assaulting Daughenbaugh at the same time.”

       The jury received the following instruction on joint criminal conduct:

               When two or more persons act together and knowingly
       commit a crime, each is responsible for the other’s acts done in
       furtherance of the commission of the crime or escape from the
       scene. This is known as joint criminal conduct. The defendant’s
       guilt is the same as the other person’s(s’) unless the act(s) could
       not reasonably be expected to be done in furtherance of the
       commission of the crime.
               The State must prove all of the following elements:
               1. The defendant acted together with at least one other
       person.
               2. The defendant and the other person or persons knowingly
       participated in the crime of assault, as defined in Instruction No. 35.
       Participation is defined in Instruction No. 21.
               3. While furthering the crime of assault, the other person or
       persons committed the different crime of murder, as defined in
       Instruction No. 24.
               4. The defendant could have reasonably expected that the
       different crime of murder would be committed in furtherance of the
       crime of assault.

“Joint criminal conduct ‘contemplates two acts—the crime the joint actor has

knowingly participated in, and a second or resulting crime that is unplanned but

could reasonably be expected to occur in furtherance of the first one.’” Id. at 752

(citation omitted).   In other words, “there must be a joint crime in which the
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defendant participates, followed by a second crime that may have been

unplanned but involved reasonably foreseeable conduct in furtherance of the first

crime.” Id.

       In Tyler, the court found substantial evidence of two separate assaults—

the first committed by Tyler, and the second committed by several people in the

crowd. See id. However, the court found only speculative evidence that Tyler

committed the first crime in concert with others. See id. at 752-53. Accordingly,

the court reversed the finding of guilt under the joint criminal conduct theory.

       In Shorter’s case, the first crime was the group attack after Daughenbaugh

fell to the ground. As discussed, substantial evidence supports a finding that

Shorter participated in the group attack and assaulted Daughenbaugh in concert

with other people.

       The problem lies with the State’s proof of a second crime in furtherance of

the group attack. Substantial evidence does not support a finding of a second

crime. See State v. Smith, 739 N.W.2d 289, 294 (Iowa 2007) (concluding act of

assisting in obtaining a handgun used to shoot a deputy was not a separate

crime from the crimes charged). At most, the evidence shows Shorter acting as

a principal or as an aider and abettor in a single crime.        See id. at 293-94

(discussing the distinction between aiding and abetting and joint criminal

conduct).

       However, even if we could parse the group attack into multiple assaults,

the State failed to establish the sequence of those assaults. While the jury was

told Daughenbaugh died as a result of blows to his abdomen, we do not know

whether the other blows occurred before or after Shorter kicked Daughenbaugh.
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Without this knowledge, there was insubstantial evidence that the second crime

was “in furtherance of” Shorter’s assault.     Accordingly, the State’s proof was

insufficient under the joint criminal conduct theory.

II.    Disposition

       Having found the joint criminal conduct theory unsupported by substantial

evidence, we are obligated to reverse and remand for a new trial because we

have no way of knowing whether the jury found Shorter guilty individually, as an

aider and abettor, or under a theory of joint criminal conduct. See Tyler, 873

N.W.2d at 753-54. In light of our disposition, we find it unnecessary to address

the remaining issues raised by Shorter.

       REVERSED AND REMANDED.
