                    IN THE COURT OF APPEALS OF IOWA

                                   No. 13-2082
                               Filed April 22, 2015

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

AHMET MAHALBASIC,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Henry County, Emily S. Dean,

District Associate Judge.



      A defendant appeals his conviction for involuntary manslaughter.

AFFIRMED.



      D. Raymond Walton of Beecher Law Offices, Waterloo, for appellant.

      Thomas J. Miller, Attorney General, Heather Ann Mapes, Assistant

Attorney General, Darin Stater, County Attorney, and Edward G. Harvey,

Assistant County Attorney, for appellee.



      Heard by Tabor, P.J., and Bower and McDonald, JJ.
                                              2



TABOR, P.J.

          The district court convicted truck driver Ahmet Mahalbasic of involuntary

manslaughter for the highway deaths of Sterling Hagen and his two-year-old

daughter, Eva.        See Iowa Code § 707.5(2) (2011).          On appeal, Mahalbasic

challenges the State’s proof of recklessness and proximate cause. Finding both

elements satisfied, we affirm the conviction.

I.        Background Facts and Proceedings

          Shortly after noon on July 1, 2012, Mahalbasic was driving his 2003 Volvo

tractor trailer westbound on Highway 34 east of Mt. Pleasant. Highway 34 is a

four-lane, divided highway that runs across southern Iowa.1 The speed limit is

sixty-five miles per hour (mph). To his right on the north side of the highway,

Mahalbasic noticed a semi-trailer for sale on the lot of Boles Auto, a used car

dealership.       Mahalbasic stopped and parked his rig in the right lane of the

highway. He turned on his emergency flashers, left the truck, and walked across

the gravel shoulder and a grassy corridor to the dealership. He did not put out

emergency triangles or cones behind his trailer, though truck drivers are required

to carry that safety equipment with them.

          A short time later, a GMC Yukon driven by Hagen slammed into the back

of the parked semi-trailer.         Hagen’s two-year-old daughter, Eva Etka, was

strapped in her child safety seat on the right rear seat of the SUV. The father

and daughter both sustained fatal injuries on impact. Mahalbasic was out of his

truck when the collision occurred.


1
     U.S. Highway 34 runs from Berwyn, Illinois to Granby, Colorado.
                                          3



       Reconstruction of the accident indicated the Yukon was traveling at the

speed limit. At this location, westbound Highway 34 has a slight left-hand curve.

A state trooper testified less than five seconds would have elapsed from the time

the SUV negotiated the curve before it rear-ended the parked semi. The trooper

opined that although the bend in the road did not impede visibility, a slight curve

could “mess with your perception as to where the vehicles are actually located.”

The investigation revealed no skid marks or other evidence to suggest Hagen

tried to stop. The trooper believed the position of the SUV at impact suggested

Hagen may have tried to steer to the right at the last minute to avoid the collision.

The evidence showed Hagen was not talking on his cell phone at the time of the

collision. Toxicology tests showed neither Hagen nor Mahalbasic was under the

influence of intoxicants.

       Law enforcement officers testified the highway’s shoulder was ten feet

wide, enough space for Mahalbasic to have parked his truck safely off the

traveled portion of the roadway. The investigation did not reveal any evidence

that an equipment malfunction forced Mahalbasic to park where he did. In a brief

conversation with a deputy at the scene, Mahalbasic said he stopped “his semi

on the road to look at a trailer that was for sale.” Officers did not issue any traffic

citations to Mahalbasic.

       Motorists who encountered Mahalbasic’s truck parked in the roadway

testified to their concerns. One of those drivers, Raymond Peebler, testified he

was “maybe a quarter mile” away when he saw the parked truck.                 Peebler

recalled “slamming” on his brakes when he realized the semi was not moving.
                                          4



As Peebler moved to the left lane, he realized the truck “was actually backing up”

in the right lane to move closer to Boles Auto. Peebler testified: “it just really kind

of took my breath away . . . because by the time I got stopped, I was right beside

him.” Another driver, Kory Lindell, testified that when he was “at approximately

the 150 or 100 yard mark away from the semi,” he “noticed the hazards were on.

They were dimly lit, but they weren’t like LED lights. I swerved to the left, to the

inside lane. I noticed the two vehicles behind me had to hit the brakes and

swerve to the inside. . . . And that’s when I called 911 to report a semi stopped in

the outside lane.” Lindell testified he “felt like it was going to turn into something

bad, a bad situation.” A third driver, Steven Lipper, also was able to maneuver

safely around the stopped truck, but as Lipper pulled back into the right lane, he

saw in his rearview mirror that the Yukon did not take evasive action: “And I was

thinking to myself, this guy has got to get over pretty quick; he’s getting close to

that semi. . . . and then all I could see was a cloud of dust, explosion, dirt, debris

or whatever.” Lipper’s wife called 911 to report the collision.

       The State charged Mahalbasic with involuntary manslaughter, an

aggravated misdemeanor, by trial information filed on October 29, 2012.

Mahalbasic waived his right to a jury trial and a bench trial occurred on August 9,

2013. The district court found him guilty in a written ruling issued on September

17, 2013.    The court sentenced Mahalbasic to two years of incarceration,

suspended the prison term, and imposed a $625 fine plus court costs and

surcharges. Under Iowa Code sections 910.2 and 910.3B, the court ordered him
                                             5



to pay restitution in the amount of $150,000, if the victims died intestate, or an

amount determined by Iowa Code section 633.210 if the victims died testate.

         On appeal, Mahalbasic argues the State presented insufficient evidence to

support his conviction. Specifically, he challenges the proof of recklessness and

argues his actions were not the proximate cause of the two deaths.

II.      Standard of Review

         We review challenges to the sufficiency of the evidence for correction of

legal error. State v. Edouard, 854 N.W.2d 421, 431 (Iowa 2014). We uphold a

finding of guilt if it is supported by substantial evidence. State v. Rohm, 609

N.W.2d 504, 509 (Iowa 2000). Substantial evidence exists if the record reveals a

rational trier of fact could find the defendant guilty beyond a reasonable doubt.

State v. Thomas, 561 N.W.2d 37, 39 (Iowa 1997). We view the evidence in the

light most favorable to the State, including all reasonable inferences that may be

fairly drawn from the evidence. State v. Sanford, 814 N.W.2d 611, 615 (Iowa

2012) (internal quotation marks omitted). We consider all record evidence, not

just evidence which supports the finding of guilt. Rohm, 609 N.W.2d at 509.

III.     Analysis of Substantial Evidence Challenges

         The district court found Mahalbasic guilty of the aggravated misdemeanor

version of involuntary manslaughter. To commit this offense, a person must

“unintentionally cause the death of another person by commission of an act in a

manner likely to cause death or serious injury.” Iowa Code § 707.5(2) (2011).2




2
    After 2013, the section was renumbered as section 707.5(1)(b).
                                           6



Mahalbasic challenges the State’s proof of the mens rea element and the

causation element. We will examine each claim in turn.

          A.      Recklessness

          Recklessness is an implied requirement of section 707.5(2).      State v.

Conner, 292 N.W.2d 682, 684 (1980); State v. Kernes, 262 N.W.2d 602, 605

(Iowa 1978) (defining recklessness as “conduct evidencing either a willful or

wanton disregard for the safety of others”). The State was required to prove

beyond a reasonable doubt that Mahalbasic acted recklessly in parking his truck

on the traveled portion of the four-lane highway.

          Recklessness means a conscious disregard for the consequences of an

action.        See State v. Thompson, 570 N.W.2d 765, 769 (Iowa 1997).        “[F]or

recklessness to exist, the act must be fraught with a high degree of danger. In

addition, the danger must be so obvious from the facts that the actor knows or

should reasonably foresee that harm will probably—that is, more likely than not—

flow from the act.” State v. Torres, 495 N.W.2d 678, 681 (Iowa 1993). “In other

words, a person acts recklessly when the person’s actions are not merely

unreasonable but ‘highly’ unreasonable; not merely a departure from ordinary

care but an ‘extreme’ departure.” State v. Sutton, 636 N.W.2d 107, 111 (Iowa

2001) (internal citations omitted).

          Mahalbasic contends his actions did not rise to the level of recklessness.

He compares his case to State v. Cox, 500 N.W.2d 23, 23-26 (Iowa 1993) and

State v. Klatt, 544 N.W.2d 461, 463 (Iowa Ct. App. 1995). In both of those

appeals, vehicular homicide convictions were reversed because evidence
                                          7



showing the defendants violated rules of the road was not enough, standing

alone, to constitute reckless behavior.       See Cox, 500 N.W.2d at 26 (holding

defendant’s act of falling asleep at the wheel and failing to yield at a stop sign,

without accompanying evidence of speeding or erratic driving, was insufficient as

a matter of law to establish recklessness); Klatt, 544 N.W.2d at 463 (holding act

of passing two semi-trailers in a no passing zone was not alone reckless when

defendant was not speeding and tried to look for oncoming traffic). Mahalbasic

claims he did not know stopping his semi on a stretch of road where it could be

seen from a distance would likely result in death or serious injury to other

motorists. Mahalbasic also focuses on his act of turning on his hazard signals,

citing Iowa Code section 321.317(5), claiming it showed “he cared” and did not

disregard the safety of the other motorists. He contends the district court—in

finding he acted recklessly—overlooked his conscious concern for the

consequences of his act.

      For its part, the State relies on State v. Conyers, 506 N.W.2d 442 (Iowa

1993). In Conyers, our supreme court upheld a vehicular homicide conviction

where the defendant drove ten miles an hour over the posted speed limit in a

school zone, ran a red light, careened through a marked crosswalk, then struck

and killed a nine-year-old girl. 506 N.W.2d at 443. Conyers had been warned

not to drive the car because his brakes were not working properly. Id. at 443-44.

Conyers was reckless because his actions showed a conscious disregard for the

safety of others. Id. at 445. The State argues: “Just as Conyers chose to drive

his truck with inadequate brakes rather than repair them, Mahalbasic chose to
                                        8



park his semi-truck on the highway rather than pull off onto the shoulder.” The

State attacks Mahalbasic’s contention that turning on his emergency flashers

signaled his conscious concern: “[T]he fact that the defendant turned on his

hazard lights does not excuse his poor decision to park on the highway nor did it

eliminate the substantial risk of an accident.”    The State concludes: “It was

reckless of Mahalbasic to willingly create an obstacle on the road that was

essentially an accident waiting to happen.”

      We agree with the State. “Criminal culpability requires more than merely

negligent behavior.” State v. Rodriguez, 804 N.W.2d 844, 849 (Iowa 2011). But

in finding recklessness, our courts “do not condition guilt on an intent to cause

harm.” Id. Instead we look to whether the defendant “embarked on an activity

which is known, or should be known, to pose a substantial risk to others.” State

v. Conroy, 604 N.W.2d 636, 638 (Iowa 2000).

      The most critical facts here are the characteristics of the highway where

Mahalbasic parked his semi-trailer. Highway 34 is a major, four-lane divided

thoroughfare. The trooper testified the stretch where the collision occurred was

“a pretty busy area” even on a Sunday afternoon. The crowning detail in the risk

calculous that should have been obvious to truck driver Mahalbasic was the

speed limit of sixty-five miles per hour—which hindered the ability of other

motorists to react and avoid a collision with a stationary obstacle blocking a full

lane of traffic. We agree with the district court’s conclusion that Mahalbasic’s

creation of this obstruction on a well-traveled highway was “fraught with a high

degree of danger.” See Torres, 495 N.W.2d at 681.
                                         9



       We likewise agree with the district court that Mahalbasic’s conduct was

“highly unreasonable.” See Sutton, 636 N.W.2d at 112. Mahalbasic did not have

mechanical trouble; he impulsively stopped his truck essentially to do some

shopping. Mahalbasic not only brought his truck to a dead stop on a major

thoroughfare, where vehicles are allowed to travel at substantial speeds, but

another motorist saw him backing up on the highway before abandoning his rig in

the right lane. The record showed the shoulder was wide enough for him to pull

off the highway; yet, Mahalbasic chose to park his rig in travelled portion of the

roadway. The danger posed by the truck was not fleeting. Mahalbasic exited the

cab and walked away while other drivers were required to take evasive action to

avoid a fatal collision.

       We finally address Mahalbasic’s argument that by turning on his hazard

lights he “showed he cared” about the safety of other motorists. Mahalbasic’s

counsel acknowledged at oral argument that the act of turning on the trailer’s

flashers cuts both for and against the defense position. While it may be a small

indication Mahalbasic desired to reduce the risk to oncoming traffic, it was an

even greater recognition that he had created a grave danger that required

warning. Blocking the right lane of traffic on this four-lane highway when the

truck was not disabled was fraught with a high degree of danger and Mahalbasic

knew or should have known the risk his conduct posed to other drivers. The

district court was correct in finding substantial evidence of recklessness.
                                           10



       B. Proximate cause

       Mahalbasic next argues his actions were not the legal, or proximate,

cause of the two deaths. Instead, he argues victim Hagen’s driving was the

cause because Hagen failed to keep a proper lookout.3

       When causation is questioned in a criminal case, normally we must

“consider if the criminal act was a factual cause of the harm.” State v. Adams,

810 N.W.2d 365, 372 (Iowa 2012) (quoting State v. Tribble, 790 N.W.2d 121,

126–27 (Iowa 2010)). Unless multiple acts contribute to bringing about a single

consequence, factual cause is determined by asking: would the harm have

occurred absent the defendant’s conduct?             Id.   Sometimes criminal cases

present questions of both factual and legal, or proximate, cause. Id. at 371.

       In this case, Hagen would not have rear ended the truck if Mahalbasic had

not left it parked in the traveled portion of the highway. Mahalbasic’s act was the

factual cause of harm.4 But we read Mahalbasic’s argument as also challenging

legal causation.     For legal causation, a defendant’s act must create the

dangerous condition that would make such events more likely to occur. State v.




3
   Keeping a proper lookout is common law duty recognized in Iowa tort cases: “Proper
lookout, we have often said, implies being watchful of the movements of the driver’s own
vehicle as well as the movements of the thing seen or seeable, and involves the care,
watchfulness and attention of the ordinarily prudent person under the circumstances.”
Christensen v. Kelley, 135 N.W.2d 510, 513 (Iowa 1965).
4
   Our supreme court has not addressed whether the “legal cause” aspect of the former
proximate cause doctrine has continuing viability in criminal cases after its decision in
Thompson v. Kaczinski, 774 N.W.2d 829, 839 (Iowa 2009) (adopting the Restatement
(Third) of Torts formulation of causation for civil cases and substituting the “scope of
liability” inquiry for the former concepts of “proximate cause” and “legal cause”). Adams,
810 N.W.2d at 372 n.7.
                                         11



Fox, 810 N.W.2d 888, 892 (Iowa Ct. App. 2011) (quoting State v. Murrary, 512

N.W.2d 547, 550 (Iowa 1994)).

      Murray distinguished factual and legal causation as follows:

      “[A]n act is a cause of an event if two conditions are satisfied: the
      event would not have occurred without the act; the act made the
      event more likely. The first condition is necessary to distinguish the
      attempted from the completed crime, the second to rule out cases
      in which, while the event in question would not have occurred but
      for the act, the act did not create the kind of dangerous condition
      that would make such events more likely to occur.”

512 N.W.2d at 550 (quoting Brackett v. Peters, 11 F.3d 78, 79 (7th Cir. 1993)).

      Following this description of legal causation, Mahalbasic cannot be

relieved of criminal responsibility even if an intervening act broke the chain of

causal connection between his conduct of parking his semi on the highway and

the victims’ deaths.    The intervening act would only clear Mahalbasic of

accountability for the homicide if it was the sole proximate cause of the deaths.

See Fox, 810 N.W.2d at 892.

      Mahalbasic claims Hagen’s inattentiveness caused the collision. But any

fault that could be ascribed to Hagen for not stopping in time to avoid rear ending

the truck was not the sole proximate cause of the deaths. See, e.g., State v.

Hubka, 480 N.W.2d 867, 870 (Iowa 1992) (holding failure of children to wear

seatbelts was not superceding cause of their deaths as to preclude criminal

responsibility on defendant); State v. McFadden, 320 N.W.2d 608, 611 (Iowa

1982) (holding deceased driver’s voluntary participation in drag race did not bar

involuntary manslaughter prosecution).
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      When we consider a “scope of liability” assessment, we believe the harm

to Hagen and his daughter was a result of the risks posed by Mahalbasic’s

reckless conduct.   See Fox, 810 N.W.2d at 892 n.2 (citing Thompson, 774

N.W.2d at 838–39 (“When, as in this case, we have been called upon to consider

the role of an intervening or superseding cause, the question of the foreseeability

of the superseding force has been critical.”)). In other words, it was reasonably

foreseeable that other motorists, negligent or not, would collide with Mahalbasic’s

truck during the time it was parked on the highway. See People v. Charles, No.

246034, 2006 WL 258941, at *4 (Mich. Ct. App. Feb. 2, 2006) (finding it is

“reasonably foreseeable that another vehicle will collide with a car that is parked

in a moving traffic lane of a major freeway”). The district court did not err in

finding the causation element met.

      AFFIRMED.
