                    IN THE COURT OF APPEALS OF IOWA

                                  No. 19-0082
                             Filed February 5, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

LHA SOUTHIDETH-WHITEN,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Lee (North) County, John M. Wright,

Judge.



      Lha Southideth-Whiten appeals his conviction for voluntary manslaughter.

AFFIRMED.



      Martha J. Lucey, State Appellate Defender, and Ashley Stewart, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Benjamin Parrott, Assistant

Attorney General, for appellee.



      Considered by Bower, C.J., and May and Greer, JJ.
                                           2


BOWER, Chief Judge.

       Lha Southideth-Whiten appeals his conviction for voluntary manslaughter,

in violation of Iowa Code sections 707.4 (2016). Southideth-Whiten contends the

trial court abused its discretion in excluding expert testimony concerning his

justification defense and erred in instructing the jury that a person is not justified in

using reasonable force if an alternative course of action is available. Finding no

abuse of discretion or error in the jury instructions, we affirm.

I. Background Facts and Proceedings.

       On October 20, 2016, Southideth-Whiten and Michael Whitworth were both

inmates working in the Iowa Prison Industries building at the Iowa State

Penitentiary. During a lunch break, both Southideth-Whiten and Whitworth were

in line to enter the cafeteria. There was one correctional officer in the cafeteria.

Two cameras captured video of the ensuing incident. Southideth-Whiten and

Whitworth began talking to each other.           Whitworth then threw punches at

Southideth-Whiten. Southideth-Whiten punched Whitworth, who fell to the floor.

Southideth-Whiten got on top of Whitworth and hit him repeatedly until Whitworth

was bloody and not moving. Southideth-Whiten stepped away for a moment,

wiped his face, and then returned to Whitworth, who was lying still on the floor, and

backhanded him twice more across the face.

       Whitworth was transferred to a local hospital and then air-lifted to the

University of Iowa hospital, where he died ten days later.

       Southideth-Whiten was charged with second-degree murder. He filed a

notice of the affirmative defense of justification. At trial, the defense informed the

court it intended to call an expert witness to address his justification defense.
                                           3


       The State filed a motion in limine, seeking to exclude certain opinion

testimony. The trial court ruled:

               [Southideth-Whiten] intends to call Dr. Lori Sexton, an
       associate professor of criminal justice and criminology at the
       University of Missouri Kansas City, to testify concerning the prison
       environment in which [Southideth-Whiten] and the decedent lived. In
       her opinion, the prison environment is unique compared to the
       environment outside the walls. She was asked to study whether the
       prison environment affected [Southideth-Whiten]’s decisions on
       October 20, 2016, when he encountered the decedent.
               The [State] has no objection to Dr. Sexton testifying about the
       general environment within the prison walls. The [State] does object
       to this witness expressing opinions regarding whether [Southideth-
       Whiten] was justified in his actions.
               A motion brought pursuant to [Iowa] Rule [of Evidence]
       5.104(a) requires the court to rule on the admissibility of evidence
       before it is presented in a trial. In this case, the [State] asks the court
       to determine whether Dr. Sexton is permitted to opine on the issue
       of justification. As the [State] points out, Dr. Sexton is not basing her
       opinion on the legal standard, rather she uses her extensive research
       to conclude [Southideth-Whiten] was justified in his actions against
       the decedent. This, the [State] argues, is improper.
               The court concludes that Dr. Sexton shall be allowed to testify
       concerning her area of expertise. She may illustrate for the jury the
       unique environment existing inside the prison walls. However, the
       court also concludes that Dr. Sexton shall not be allowed to testify
       that [Southideth-Whiten] was justified in his actions against the
       decedent. Furthermore, she shall not be allowed to testify whether
       his actions were reasonable based upon the circumstances present
       on October 20, 2016.

       The case proceeded to a jury trial. Investigator Randy Van Wye testified

Southideth-Whiten told him that Whitworth thought Southideth-Whiten had

bumped into him while entering the cafeteria and Whitworth took issue.

Southideth-Whiten stated he apologized to Whitworth.            Investigator Van Wye

stated that other inmates in the room offered no information on the altercation.

Investigator Van Wye also testified that the policy of the prison with respect to an

inmate fight is that if more than one correctional officer is present, staff is allowed
                                          4


to intervene. However, if there was only one correctional officer present, that

officer is to call for assistance. He testified Correctional Officer Mark Lair was the

only staff in the cafeteria when this altercation happened.

       Officer Lair testified he was on duty at the cafeteria entrance on October 20,

checking inmates in to lunch. He heard a scuffle and looked up to see Southideth-

Whiten and Whitworth struggling. Officer Lair told them to break it up, to no avail.

He then sprayed Southideth-Whiten with pepper spray. Southideth-Whiten got off

Whitworth, stepped away, and wiped his face. He then came back and struck

Whitworth again.

       The medical examiner testified Whitworth had bruising around both eyes,

his nose, both sides of the face, the skin around the mouth and inside the mouth,

and the back of his head. His skull was fractured near the right temple area and

there was a large contusion on the back of the scalp. His brain was swollen. All

injuries were “related to blunt force trauma of the head affecting the brain” and

were significant enough to cause Whitworth’s death. The medical examiner ruled

the death a homicide.

       About thirty minutes after the encounter, Southideth-Whiten spoke with

Investigative Sergeant John Hawk, stating he had to “fight for his life” and that “he

could have been killed.” Sergeant Hawk testified Southideth-Whiten appeared

“very wound up.” He escorted Southideth-Whiten to the health care unit, where

Sergeant Hawk noted Southideth-Whiten had a swollen and bloody nose, his

knuckles were bruised, and he had a small cut on his right, pinky-finger knuckle.

Hawk took pictures of Southideth-Whiten’s hands and face. Those pictures show

blood on both hands and blood spatters on his forehead.
                                         5


       Correctional Officer John Martinez responded to Officer Lair’s call for

assistance, entered the cafeteria, and placed handcuffs on Southideth-Whiten.

Officer Martinez testified that inmates working in the prison industries factory have

access to tools while working and there is a tool count at the end of each day.

However, inmates are not searched before entering the cafeteria. Officer Martinez

was not aware of any tool being found in the cafeteria after the altercation or that

a tool was missing at the end of the day.

       The defense asserted Southideth-Whiten was struck by Whitworth without

provocation. They were in a room with a number of other inmates, all of whom

had access to tools from the factory, and no assistance was forthcoming from the

sole officer in the cafeteria. The defense argued Southideth-Whiten deserved

protection but received none, and, therefore, he had no alternative course of action

but to defend himself.

       Dr. Sexton testified quite extensively about her research with prison

populations. She testified she conducts research involving “first person accounts

from prisoners, prison staff, and prison administrators to determine the objective

context of prison, what the environment is like, and also how the people in that

environment experience it.” She stated a major theme arising from her research

is “the importance of violence to the context”; that “there’s an expectation that

violence will be used to solve certain problems and a real fear of being subjected

to violence, even when someone is minding their business.” She also testified

there was a general “fear of violence, fear for one’s safety” both in the inmate

population and prison staff.
                                           6


       Dr. Sexton also testified:

       The lack of physical staff presence or just the knowledge that a
       facility is understaffed can really heighten this sense that the only
       way to handle an incident is to do it yourself.
                So if someone comes at you, then there is less of an
       expectation that there’s going to be an officer there at the ready to
       intervene, particularly if there’s only one officer in the room or in your
       line of sight, then the expectation really is that officer isn’t going to
       intervene because they have no backup.
                So the culture of fear and the culture of violence and the lack
       of autonomy all combine with understaffing or minimal staff presence
       to basically provide people with very little option to resolve conflict.

She discussed the heightened awareness that might occur in an area of the prison

“where things that could easily be used as weapons are used instead as everyday

objects, like box cutters or awls or some kind of tool.”

       Dr. Sexton’s testimony included inmates’ responses to violent interactions:

       A. So I’ve talked to inmates about everything from kind of minor
       scuffles with a cellmate that they’re actually friends with but it turned
       violent and then was resolved—not really resolved, kind of papered
       over. Anything from that to instances in which someone was
       attacked unprovoked in a common area of the prison like the yard or
       the dining hall in the presence of officers and feared for their lives
       because the attack came out of nowhere and no one, inmates or
       officers, you know, was rushing to help them.
               Q. . . . You mentioned a situation of an unprovoked attack. Is
       it unusual within the culture and violence that you’ve described, and
       based on your research, that the initial attack versus the response
       might not be equal? A. It’s not unusual, no.
               Q. Okay. So has your research given you any information as
       to why that may be? A. Absolutely. So one of the things that I’ve
       heard from a lot of people who have been involved in violent
       incidents that went farther than they expected was this idea that
       because they were in fear for their life or fear for, you know, grave
       harm to themselves, and because violence is such a key part of the
       prison culture, that once they’re involved in a violent incident there
       really isn’t the option to stop or de-escalate. It’s essentially a choice,
       as it has been described to me, to either keep going so that you are
       certainly the victor or to lose the fight and end up being harmed quite
       seriously.
               ....
                                         7


               Q. Okay. And based on your research, have there been
       situations where you’ve uncovered in some of these prisons where
       people have appeared to be . . . sort of out of the fight or disengaged
       and then only to find they would be attacked later? A. Yes. That’s a
       very frequent but still surprising thing that I’ve heard from a lot of
       inmates, this idea that even when you think that you’ve successfully
       eliminated the threat, that someone is down for the count and isn’t
       going to come back at you swinging or come back at you with a
       weapon of some type, that then they maybe turn and walk away and
       that person pops right back up as though reanimated. I mean, I’ve
       heard this story many times over. I’ve even heard it from correctional
       officers and from at least one administrator who report having seen
       the same thing, a fight between two inmates where it looked like one
       person was out of the fight, unconscious, on the ground, and then
       that person entered the fight and sometimes ended up winning it.

       Defense counsel then asked:

       Would someone who is aware of the fact that there is either
       understaffing or limited supervision in an area, and knowing that they
       are unarmed but being uncertain of the other person’s status, based
       on your research through all of the different persons that you visited
       and studied, does that impact responses from the unarmed person if
       they’re attacked?

       The State objected and a discussion was held outside the presence of the

jury. The prosecutor noted the question attempted to be phrased as a hypothetical

but “really tracks the facts of this case” and sought an improper opinion as to the

defendant’s guilt or innocence. The defense argued the question was seeking

general information only.     The court sustained the objection.       Dr. Sexton’s

testimony continued, but she was not allowed to opine Southideth-Whiten’s

response was reasonable or justified under the circumstances.

       The court provided proposed jury instructions. The defense objected to the

court’s instructions concerning justification because they included language that a

person is not justified in using force to defend themselves if an alternative course

of action was available. The defense urged the court to note the exception to the
                                         8


duty to seek an alternative course of action when a person is “in his own home.”

Defense counsel argued Southideth-Whiten was in his home and where he was

required to be and the instruction should mention the “home exception” to the duty

to seek an alternative course of action. The court overruled the objection.

      The jury instructions included the following:

                             INSTRUCTION NO. 16
              The defendant claims he acted with justification. A person
      may use reasonable force to prevent injury to a person, including the
      defendant. The use of this force is known as justification.
              Reasonable force is only the amount of force a reasonable
      person would find necessary to use under the circumstances to
      prevent injury.
              A person can use deadly force against another if it is
      reasonable to believe that such force is necessary to avoid injury or
      risk to one’s life or safety or the life or safety of another, or it is
      reasonable to believe that such force is necessary to resist a like
      force or threat.
              The State must prove the defendant was not acting with
      justification.

                              INSTRUCTION NO. 17
              A person is justified in using reasonable force if he reasonably
      believes the force is necessary to defend himself from any imminent
      use of unlawful force.
              If the State has proved any one of the following elements, the
      defendant was not justified:
              (1) The defendant started or continued the incident which
      resulted in death.
              (2) An alternative course of action was available to the
      defendant.
              (3) The defendant did not believe he was in imminent danger
      of death or injury and the use of force was not necessary to save
      him.
              (4) The defendant did not have reasonable grounds for the
      belief.
              (5) The force used by the defendant was unreasonable.

                            INSTRUCTION NO. 18
             The defendant was not required to act with perfect judgment.
      However, he was required to act with the care and caution a
      reasonable person would have used under the circumstances which
      existed at that time.
                                    9

        If in the defendant’s mind the danger was actual, real,
imminent or unavoidable, even though it did not exist, that is
sufficient if a reasonable person would have seen it in the same light.

                       INSTRUCTION NO. 19
       The defendant claims danger existed. You are to consider the
danger or apparent danger from the viewpoint of a reasonable
person under the circumstances which existed at that time.
       It is not necessary that there was actual danger, but the
defendant must have acted in an honest and sincere belief that the
danger actually existed.
       Apparent danger with knowledge that no real danger existed
is no excuse for using force.

                       INSTRUCTION NO. 20
       If a defendant is confronted with the use of unlawful force
against him, he is required to avoid the confrontation by seeking an
alternative course of action before he is justified in repelling the force
used against him.

                      INSTRUCTION NO. 22
      A person is not justified when he provokes or causes force to
be used against him, intending to use it as an excuse to injure
another.
      If you find the State has proved the defendant provoked the
use of force intending to use it as an excuse to injure Michael
Whitworth, he was not justified.

                         INSTRUCTION NO. 23
        A person is not justified when he provokes or causes force to
be used against him, intending to use it as an excuse to injure
another.
        If you find the State has proved the defendant provoked the
use of force intending to use it as an excuse to injure Michael
Whitworth, he was not justified.
        However, there is an exception if the defendant provoked the
use of force, if Michael Whitworth used force greatly disproportionate
to the provocation and it was so great that the defendant reasonably
believed he was in imminent danger of death or injury, he is not
considered to have provoked the incident and his acts would be
justified.

                      INSTRUCTION NO. 27
       The State must prove all of the following elements of the
lesser-included offense of voluntary manslaughter:
        (1) On or about October 20, 2016, the defendant struck
        Michael Whitworth.
        (2) Michael Whitworth died as a result of being struck.
                                          10


               (3) The striking was done solely by reason of sudden, violent
               and irresistible passion resulting from serious provocation.
               (4)The defendant was not acting with justification.

       Southideth-Whiten was found guilty of the lesser-included offense of

voluntary manslaughter.      He now appeals, asserting the court’s limits on the

expert’s testimony was an abuse of discretion and its failure to provide additional

language in the justification jury instructions was in error.

II. Scope and Standard of Review.

       “The admissibility of expert testimony in a criminal case ‘falls squarely within

the trial court’s sound discretion.’” State v. Edouard, 854 N.W.2d 421, 436 (Iowa

2014) (citation omitted), overruled on other grounds by Alcala v. Marriott Int’l, Inc.,

880 N.W.2d 699, 708 n.3 (Iowa 2016); see also In re Det. of Palmer, 691 N.W.2d

413, 416 (Iowa 2005), overruled on other grounds by Alcala, 880 N.W.2d at 708

n.3. “An abuse of discretion occurs when the trial court ‘exercises its discretion on

grounds clearly untenable or to an extent clearly unreasonable.’” State v. Reyes,

744 N.W.2d 95, 99 (Iowa 2008) (citation omitted).

       Absent a discretionary component, we review challenges to jury instructions

for correction of errors at law. Alcala, 880 N.W.2d at 707 (“Iowa law requires a

court to give a requested jury instruction if it correctly states the applicable law and

is not embodied in other instructions.”). “We evaluate whether the instruction at

issue ‘accurately states the law and whether substantial evidence supports it.’

Even when the instruction is erroneous, we will not reverse unless prejudice

resulted. ‘Prejudice results when jury instructions mislead the jury or materially

misstate the law.’” State v. Mathias, 936 N.W.2d 222, 226 (Iowa 2019) (citations

omitted).
                                        11


III. Discussion.

      A. Expert testimony. On appeal, Southideth-Whiten argues Dr. Sexton

“was barred from providing testimony concerning how inmates’ reaction to violence

in prison might be reasonably different from violence encountered outside prison

walls.” Having reviewed the testimony, we cannot agree with this characterization

of the expert witness’s testimony, which we set out in some detail above.

      It is true the court ruled Dr. Sexton could not testify Southideth-Whiten was

justified in his actions or whether his actions were reasonable based upon the

circumstances. This ruling is in keeping with the cases relied on by Southideth-

Whiten as support for his contentions. In State v. Olsen, our supreme court held:

      [W]hile a witness may not testify whether marijuana is held for
      personal use, he may testify on the pattern or modus operandi of a
      certain offense and compare the facts of the case to it. The
      distinction is that, on the one hand, the witness is asked for an
      opinion based upon certain evidence as it relates to a well-defined
      modus operandi and on the other, an opinion on the guilt or
      innocence of the defendant. The former is proper; the latter is not.
      We have said this line of distinction, while fine, is nevertheless
      essential.

315 N.W.2d 1, 6–7 (Iowa 1982) (citations omitted).

      Yet, Dr. Sexton was allowed to testify at length about the prevalence of

violence in prison, the generalized sense of fear and danger an inmate faces, and

about inmates’ reactions to violence in the prison setting, which might seem

disproportionate in other settings. Thus, the defense expert provided the jury with

helpful information to determine whether Southideth-Whiten’s actions constituted

“reasonable force . . . he reasonably believes . . . is necessary to defend himself
                                         12


from any imminent use of unlawful force”—as they were instructed. The cases

cited by the defense do not convince us otherwise.1

       As noted in Dinkins, Iowa Rule of Evidence 5.704 provides: “An opinion is

not objectionable just because it embraces an ultimate issue.” See 553 N.W.2d at

341. Nevertheless, expert testimony is allowed “if the expert’s scientific, technical,

or otherwise specialized knowledge will help the trier of fact to understand the

evidence or to determine a fact in issue.” Iowa R. Evid. 5.702.

       Thus, a witness cannot opine on a legal conclusion or whether the
       facts of the case meet a given legal standard. Such an opinion would
       be of no value to the jury. In most cases, the jurors are fully capable
       of applying the facts of the case to the law provided to them by the
       trial judge.

Palmer, 691 N.W.2d at 419 (internal citation omitted). Here, the jury was capable

of applying the facts of the case to the law provided to them by the trial judge. See

Edouard, 854 N.W.2d 436–37 (“Even if the theological community were in

agreement that Edouard’s actions did not amount to pastoral counseling, that

would not resolve whether Edouard’s actions fit within the statutory definition of

mental health services. . . . The specialized meaning given to a term by the


1The defense also cites to State v. Dinkins, 553 N.W.2d 339, 341 (Iowa Ct. App.
1996). In Dinkins, the court wrote:
      Expert testimony consisting of scientific, technical or other
      specialized knowledge is admissible at trial when it is helpful for the
      trier of fact to understand the evidence in the case or to determine a
      fact in issue, as long as its probative value is not substantially
      outweighed by the danger of unfair prejudice. Such opinions may
      generally be expressed even though they embrace “an ultimate issue
      to be decided by the trier of fact.” These basic precepts, however,
      do not permit a witness to express a direct opinion on the guilt or
      innocence of the defendant. Determining guilt or innocence is the
      exclusive function of the finder of fact; and consequently, is an
      improper subject of expert testimony.
553 N.W.2d at 341 (emphasis added) (internal citations omitted).
                                        13


theological community is ultimately beside the point in determining whether

Edouard’s actions met the legislature’s definition of the crime. . . . Hence, the

district court did not abuse its discretion in excluding Dr. Wakefield’s proposed

testimony.”). We find no abuse of the trial court’s discretion concerning the expert

witness’s testimony.2

      B. Jury instructions. Southideth-Whiten also contends the trial court erred

in refusing to include the “home exception” language to Instruction No. 20. Uniform

Jury Instruction 400.10 offers this language concerning the home exception:

      If the defendant was in [his] [own home] . . . which [he] was legally
      occupying and the alternative course of action was such that [he]
      reasonably believed [he] had to retreat or leave [his] position to avoid
      the confrontation, [he] was not required to do so and [he] could repel
      force with reasonable force (including deadly force).

Southideth-Whiten argues a prison should be considered an inmate’s home for

purposes of the duty to take an alternative course of action.3

      Our supreme court has recently addressed the statutory duty to follow an

alternative course of action in State v. Lorenzo Baltazar, 935 N.W.2d 862, 869

(Iowa 2019). The court noted, “Justification is a statutory defense that permits a

defendant to use reasonable force to defend himself or herself.” Id. In Iowa Code

section 704.1, the legislature defines reasonable force:4


2  Because we have addressed the merits of the issue, we do not address the
alternative claim based on ineffective assistance of counsel.
3 Dr. Sexton also testified that the prison was the inmates’ home, “[i]t is where

inmates live, where they eat, where they sleep, and where they work.”
4 In 2017, the Iowa legislature deleted the alternative-course-of-action language

and added the stand-your-ground provision: “A person who is not engaged in
illegal activity has no duty to retreat from any place where the person is lawfully
present before using force as specified in this chapter.” 2017 Iowa Acts. ch. 69,
§ 37 (codified at Iowa Code § 704.1(3) (2018)). The amendment took effect July
1, 2017, subsequent to the events here and, thus, is not applicable.
                                            14


       Reasonable force, including deadly force, may be used even if an
       alternative course of action is available if the alternative entails a risk
       to life or safety, or the life or safety of a third party, or requires one to
       abandon or retreat from one’s dwelling or place of business or
       employment.

See also Lorenzo Baltazar, 935 N.W.2d at 869. The supreme court noted the

statutory provision recognizes that the “implied duty to follow an alternative course

of action [is] a disqualifying factor for justification.” Id.

       Southideth-Whiten has cited no Iowa case that would support a requirement

that the district court instruct the jury a prison cafeteria is an inmate’s dwelling for

purposes of the duty to retreat. He does note an Ohio case that recognized an

inmate in a locked prison cell could not seek an alternative course of action from

a cell mate. State v. Cassano, 772 N.E.2d 81, 97 (Ohio 2002).

       Even granted that “retreat was impossible under [such] circumstances,”

nothing in the statutory provision leads us to believe the legislature intended the

“home exception” to encompass the cafeteria within a maximum security prison.

As such, we conclude the district court did not err in refusing to instruct the jury as

requested. We affirm.

       AFFIRMED.




       We note, however, the supreme court ruled the “duty to retreat remains if
the activity is illegal or the presence unlawful.” Lorenzo Baltazar, 935 N.W.2d at
870.
