               IN THE SUPREME COURT OF IOWA
                              No. 12–2122

                          Filed March 20, 2015


STATE OF IOWA,

      Appellee,

vs.

MARIO GUERRERO CORDERO,

      Appellant.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Polk County, Scott D.

Rosenberg, Judge.



      A criminal defendant challenges his convictions and sentences for

first-degree murder and attempt to commit murder.       DECISION OF

COURT OF APPEALS AFFIRMED IN PART AND VACATED IN PART;

DISTRICT COURT JUDGMENT AND SENTENCE AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Bradley M. Bender,

Assistant Appellate Defender, for appellant.



      Thomas J. Miller, Attorney General, Kyle P. Hanson, Assistant

Attorney General, John P. Sarcone, County Attorney, and Jaki L.

Livingston, Assistant County Attorney, for appellee.
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CADY, Chief Justice.

      In this appeal involving convictions for first-degree murder and

attempt to commit murder, the defendant asserts numerous claims of

error arising out of his trial and sentencing.       These claims included

insufficiency of evidence to support the convictions, trial court error in

refusing to give a jury instruction, ineffective assistance of trial counsel,

and insufficient reasons for the imposition of consecutive sentences. We

transferred the case to the court of appeals.         The court of appeals

addressed all the issues on appeal and affirmed the judgment and

sentence of the district court. On further review, we only address the

issue concerning the jury instruction. The issue presented is whether

the district court abused its discretion by failing to give a jury instruction

at trial on the defense of intoxication under the record in this case. We

conclude the district court did not abuse its discretion. We affirm in part

and vacate in part the opinion of the court of appeals and affirm the

judgment and sentence of the district court.

      I. Background Facts and Proceedings.

      Mario Guerrero Cordero lived in Des Moines in 2008.            He was

distantly related to Miguel and Manuel Cano Basurta, brothers who also

lived in Des Moines. Miguel and Manuel worked at an automobile repair

shop called El Tarasco’s.    In May 2008, Guerrero Cordero damaged a

truck belonging to a customer of the shop when he struck it with his

vehicle after entering the parking lot. Miguel demanded that Guerrero

Cordero pay for the damage. Guerrero Cordero failed to pay, which upset

Miguel and caused tension between the two men. This tension reached a

tipping point on Independence Day of that year.

      On the morning of July 4, Miguel and Manuel went to work at

El Tarasco’s.   After friends arrived at the shop, the brothers stopped
                                        3

working and began to socialize with them. The fellowship included the

consumption of beer.      Guerrero Cordero also arrived at the shop, and

Miguel and Manuel asked him to leave. Guerrero Cordero and Miguel

began to argue, and eventually, Miguel insulted Guerrero Cordero’s

family and challenged him to a fight. However, no physical confrontation

occurred, and Guerrero Cordero left the shop without incident.

      After leaving El Tarasco’s, Guerrero Cordero went to an automotive

repair shop owned by Rogelio Carlos Basurto, another distant cousin.

While Guerrero Cordero was at Basurto’s shop, Guerrero Cordero

displayed a handgun and ammunition to those present before placing the

gun in his waistband. When he and Basurto left the shop together to

buy beer, Guerrero Cordero told Basurto that he had wanted to shoot

Miguel the other day, but did not do so because they were family.

Basurto told Guerrero Cordero he should not think about hurting family

and that the gun would only bring him trouble. Basurto left the shop

late in the afternoon.      Guerrero Cordero was still present.          He was

drinking beer, but Basurto did not believe he was drunk. At some point,

Guerrero Cordero returned to El Tarasco’s, where Miguel again asked

him to leave. He complied with the request. Manuel subsequently saw

Guerrero Cordero at an apartment complex in the early evening and told

him not to return to the shop until he could talk with Miguel.

      Despite the admonition, Guerrero Cordero returned to El Tarasco’s

once again. 1 Upon entering the shop, he said, “What’s up?” He then

pulled the gun from his waistband and fired several shots at Miguel.

Miguel was hit by three shots and fell to the floor.         Guerrero Cordero


      1Conflicting testimony suggested Guerrero Cordero returned anywhere from ten

minutes to two hours after leaving El Tarasco’s.
                                   4

then began firing at the others gathered in the shop, who had begun to

flee.   As Guerrero Cordero turned to leave the shop, he shot Hector

Casillas, hitting him in the foot and causing him to fall.       Casillas

continued to flee, and Guerrero Cordero shot him again, this time in the

back as he ran away. Guerrero Cordero then fled the scene. Casillas

was taken to the hospital for surgery and survived. Miguel died of his

wounds shortly after he was transferred to the hospital trauma center.

        Police executed a search warrant on Guerrero Cordero’s home on

July 5. They found ammunition and the pants he had worn the previous

day. Two days later, Guerrero Cordero’s roommate led police to a buried

handgun, which forensics testing was later able to match as having fired

five bullets recovered at the scene, including one removed from Miguel’s

body.    The police also discovered Guerrero Cordero had purchased a

ticket to Mexico under an assumed name and left Des Moines.         They

subsequently began a lengthy process of obtaining an international

warrant for the arrest of Guerrero Cordero. Three years later, in 2011,

Mexican authorities arrested Guerrero Cordero on the international

warrant. He was eventually extradited to the United States.

        The State of Iowa charged Guerrero Cordero with first-degree

murder and attempt to commit murder.           At trial, testimony was

presented about the consumption of alcoholic beverages on July 4 by the

persons present at El Tarasco’s and Basurto’s. Miguel and many of the

persons who spent the day at El Tarasco’s were intoxicated by the time

the shooting started.    There were coolers of beer at the shop and

numerous beer cans. Multiple witnesses testified that Guerrero Cordero

had been drinking beer during the day, but nearly all of them said he

was not intoxicated or did not appear intoxicated. Not all witnesses were

asked at trial if they believed Guerrero Cordero was intoxicated. Only
                                     5

one witness, who had never met Guerrero Cordero before and was

himself intoxicated at the time of the shooting, testified Guerrero Cordero

was “probably” intoxicated.     Photographs of the inside of Guerrero

Cordero’s truck revealed an unopened can of beer and unopened bottle of

beer, as well as a single open can of beer in the cup holder.            The

investigating officer did not question the witnesses after the shooting

about the level of intoxication of those present at the time of the

shooting, but did note every witness he talked with was coherent and

able to form sentences to describe what had occurred.

      At the close of the State’s evidence, Guerrero Cordero moved for a

judgment of acquittal on both charges. He claimed the evidence failed to

establish he had the specific intent to commit either crime based on

either intoxication or provocation. The trial court denied the motion.

      At the close of all of the evidence at trial, Guerrero Cordero

requested a jury instruction on the defense of intoxication. This was the

first time the defense was formally raised. The court denied the request.

It found the evidence did not rise to the level to support an intoxication

instruction. Guerrero Cordero also renewed his motion for judgment of

acquittal, which the court denied.

      The jury found Guerrero Cordero guilty of the first-degree murder

of Miguel Cano Basurto and the attempt to commit the murder of Hector

Casillas.    For the conviction of murder in the first degree, the court

sentenced Guerrero Cordero to life imprisonment without the possibility

of parole.   For the conviction of attempt to commit murder, the court

sentenced Guerrero Cordero to twenty-five years in prison with parole

eligibility after serving seven-tenths of the sentence. The court ordered

the sentences be served consecutively.
                                      6

      Guerrero Cordero appealed and raised four claims.              First, he

asserted the evidence was insufficient to allow a reasonable finder of fact

to conclude he committed the crimes of first-degree murder and attempt

to commit murder. Second, he argued the trial court erred in denying

his request to instruct the jury on the defense of intoxication. Third, he

contended the trial court erred by giving insufficient reasoning for its

decision to impose consecutive sentences.          Finally, he claimed trial

counsel was ineffective in failing to notify the State of his intent to rely on

intoxication as a defense.

      We transferred the case to the court of appeals.          The court of

appeals affirmed the district court. It denied the claims of insufficiency

of the evidence, sentencing abuse of discretion, and ineffective assistance

of counsel. However, the court found the trial court erred in refusing to

give the requested intoxication instruction, but concluded Guerrero

Cordero was not prejudiced by the refusal because he still presented his

defense on intoxication to the jury.       We granted Guerrero Cordero’s

request for further review.

      II. Standard of Review.

      “We review challenges to jury instructions for correction of errors

at law.” State v. Frei, 831 N.W.2d 70, 73 (Iowa 2013); see also Iowa R.

App. P. 6.907.    Yet, “[w]e review the related claim that the trial court

should have given the defendant’s requested instructions for an abuse of

discretion.” Summy v. City of Des Moines, 708 N.W.2d 333, 340 (Iowa

2006). Discretion is afforded the trial court in this instance because the

decision involves an assessment of the evidence in the case.           “When

weighing sufficiency of evidence to support a requested instruction, we

construe the evidence in a light most favorable to the party seeking

submission.” Sonnek v. Warren, 522 N.W.2d 45, 47 (Iowa 1994). “ ‘Error
                                            7

in giving or refusing to give a jury instruction does not warrant reversal

unless it results in prejudice to the complaining party.’ ”                Hagenow v.

Schmidt, 842 N.W.2d 661, 670 (Iowa 2014) (quoting Koenig v. Koenig,

766 N.W.2d 635, 637 (Iowa 2009)).                    “ ‘When the error is not of

constitutional magnitude, the test of prejudice is whether it sufficiently

appears that the rights of the complaining party have been injuriously

affected or that the party has suffered a miscarriage of justice.’ ” State v.

Marin, 788 N.W.2d 833, 836 (Iowa 2010) (quoting State v. Gansz, 376

N.W.2d 887, 891 (Iowa 1985)).                   “ ‘Errors in jury instructions are

presumed prejudicial unless “the record affirmatively establishes there

was no prejudice.” ’ ” Asher v. Ob-Gyn Specialists, P.C., 846 N.W.2d 492,

496 (Iowa 2014) (quoting State v. Murray, 796 N.W.2d 907, 908 (Iowa

2011)).

       “On further review, we have the discretion to review any issue

raised on appeal.” Marin, 788 N.W.2d at 836. We will only address the

issue regarding the proposed jury instruction on intoxication. We let the

court of appeals opinion stand as the final decision on the other three

issues.    See State v. Walker, 856 N.W.2d 179, 184 (Iowa 2014) (“[W]e

have discretion to let the court of appeals decision stand as the final

decision on one or more issues.”).

       III. Analysis.

       Guerrero Cordero argues the district court erred by refusing to give

an instruction describing the affirmative defense of intoxication. 2                  We

ultimately conclude this decision did not constitute error.

       2We  have often noted that this is not a true defense, but our rules of criminal
procedure describe it as such. Iowa R. Crim. P. 2.11(11)(c) (“If defendant intends to rely
upon the defense of intoxication . . . .”). But see State v. Broughton, 425 N.W.2d 48, 49
(Iowa 1988) (“Intoxication, of course, is not a complete defense to a crime . . . .”).
Intoxication does not provide an affirmative exculpatory defense, but is instead a partial
                                           8

       A. The Defense of Intoxication.                Historically, the intoxicated

state of an offender during the commission of a crime was not considered

a defense or mitigating circumstance but, instead, was often an

aggravating circumstance of the offense. See Montana v. Egelhoff, 518

U.S. 37, 44–45, 116 S. Ct. 2013, 2018, 135 L. Ed. 2d 361, 368–69 (1996)

(plurality opinion) (describing the history of intoxication in English and

early American cases).           During the nineteenth century, this early

common law rule gradually shifted to a rule that permitted intoxication

to be used by a fact finder to consider the ability of a defendant to form

the specific intent necessary to commit a crime. Id. at 46–47, 116 S. Ct.

at 2019, 135 L. Ed. 2d at 370. We adopted this rule in 1870. State v.

Bell, 29 Iowa 316, 317–18 (1870).               In Bell, our early court, while

conceding that voluntary intoxication is not an excuse for the crime

committed, stated:

       The drunkenness, however, is a proper circumstance, and
       should be weighed by the jury in determining whether there
       existed the specific intent to commit the felony charged.
       Whether he had the intent charged, whether he was capable
       of conceiving it, or whether he was so completely overcome
       by his debauch as to be incapable of forming any purpose,
       were questions for the jury.

Id. at 319. Thus, before intoxication could prevent a finding of specific

intent, the offender not only had to be intoxicated, but so intoxicated

that he or she could no longer reason and was incapable of forming a

felonious intent. See id. at 318–19. The resolution of the question was

entrusted to the jury based on the facts of each case.

       From the beginning, the defense has been applied in Iowa only to

specific-intent crimes, not those of general intent. “If [the accused] were

_________________________
defense only relating to one of the several elements that need to be proven in a criminal
prosecution. Broughton, 425 N.W.2d at 49.
                                     9

in such stupor that he was incapable of deliberation, premeditation, or of

forming a specific design, it is manifest that he could not have been

guilty of the offense of higher degree.” State v. Wilson, 166 Iowa 309,

321, 144 N.W. 47, 52 (1913), amended by 166 Iowa 326, 147 N.W. 739

(1914). Yet, when the act is criminal in itself, the capacity of the offender

to form specific intent has no bearing on guilt. See State v. Hall, 214

N.W.2d 205, 208–09 (Iowa 1974) (explaining that intoxication does not

negate malice for second-degree murder); see also State v. Caldwell, 385

N.W.2d 553, 557 (Iowa 1986) (“Voluntary intoxication may not, however,

reduce a charge when the crime does not require a specific intent.”).

Therefore, if intoxication negates the specific-intent element of a crime,

the offender can only be found guilty of a lesser included offense

consisting of the act without the intent. See, e.g., Wilson, 166 Iowa at

321, 144 N.W. at 52 (explaining that an unexplained killing is presumed

to be second-degree murder and that intoxication can only have a

bearing on the specific intention that would elevate the killing to a first-

degree murder).    Specific intent not only requires the defendant to be

aware of doing an act, but doing it with a specific purpose in mind. State

v. Rinehart, 283 N.W.2d 319, 320–21 (Iowa 1979).

      We have traditionally required a high level of intoxication to

support a finding of no specific intent.

      Mental disability, arising from the use of intoxicants, is a
      matter of degree.       Partial drunkenness does not make
      impossible the formation of said criminal object. Therefore,
      the ‘intoxication’ or ‘drunkenness’ must be to the extent that
      the designing or framing of such purpose is impossible.

State v. Patton, 206 Iowa 1347, 1348, 221 N.W. 952, 952 (1928).          We

similarly required a high degree of intoxication in State v. Wilson, 234

Iowa 60, 76, 11 N.W.2d 737, 745–46 (1943):
                                           10
       Intoxication is a matter of degree. . . . The law does not
       specify the degree or the percentage of intoxication essential
       to sustain this defense, but it does require that it be such as
       to render the accused incapable of the requisite specific
       intent. He may be under the influence of intoxicating liquor,
       but he will not be absolved of criminal responsibility if he
       still possesses mental capacity to entertain the intent. Mere
       intoxication is not sufficient. Neither is it enough that he
       had been drinking liquor.

       In 1979, the legislature codified the intoxication defense.                  This

statute stated:

       The fact that a person is under the influence of intoxicants
       or drugs neither excuses the person’s act nor aggravates his
       or her guilt, but may be shown where it is relevant in proving
       the person’s specific intent or recklessness at the time of the
       person’s alleged criminal act or in proving any element of the
       public offense with which the person is charged.

Iowa Code § 701.5 (1979).           We subsequently concluded this statutory

rule was “substantially a codification of prior law” and have applied it

using the same analysis under the common law rule. State v. Collins,

305 N.W.2d 434, 437 (Iowa 1981). 3 The legislature has not changed its

statutory rule since it was enacted. 4

       B. Sufficiency        of    Evidence       to    Merit     the     Instruction.

Guerrero Cordero requested the district court to instruct the jury on

intoxication consistent with Iowa State Bar Association criminal jury
instruction 200.14. His requested instruction provided:

       Defendant claims he was under the influence of intoxicants
       or drugs at the time of the alleged crime. The fact that a
       person is under the influence of intoxicants or drugs does


       3Scott A. Anderegg discussed the codification of the intoxication rule in his note,
The Voluntary Intoxication Defense in Iowa, 73 Iowa L. Rev. 935, 947–52 & nn. 103–136
(1988), including the proposition that the legislature may have intended to modify it by
enacting the statute. We do not consider this proposition because Guerrero Cordero did
not challenge the substantive law governing the intoxication defense.
        4The Code editor has modified the grammar of the statute to replace “his or her”

with “the person’s” guilt, but this was not a statutory amendment from the legislature.
                                           11
       not excuse nor aggravate his guilt. Even if a person is under
       the influence of an intoxicant or drug, he is responsible for
       his acts if he had sufficient mental capacity to form the
       specific intent necessary to the crime charged or had the
       specific intent before he fell under the influence of the
       intoxicant or drug and then committed the act. Intoxication
       is a defense only when it causes a mental disability which
       makes the person incapable of forming the specific intent.

See Iowa State Bar Ass’n, Iowa Criminal Jury Instruction 200.14 (2012).

       Courts are required to instruct the jury on the law for all material

issues raised by the evidence in a case. Iowa R. Civ. P. 1.924; Marin, 788

N.W.2d at 837. It ordinarily “must instruct on a defendant’s theory of

defense provided the defendant makes a timely request, the requested

theory of defense instruction is supported by the evidence, and the

requested instruction is a correct statement of the law.” State v. Ross,

573 N.W.2d 906, 913 (Iowa 1998). An instruction is supported by the

evidence when it “could convince a rational finder of fact that the

defendant has established his affirmative defense.” State v. Broughton,

425 N.W.2d 48, 52 (Iowa 1988). 5                  The defendant must produce

substantial evidence to support the instruction. Id.

       In this case, the only requirement at issue is whether the proposed

instruction was supported by substantial evidence.                       There is no
challenge to the timeliness of the request or the accuracy of the law.

“[W]hen a defendant urges a defense of voluntary intoxication which is

supported by substantial evidence, such evidence is to be considered by

the jury on the material issue in the State’s case upon which it bears


       5The  burden of proof is still on the State to prove the requisite intent. State v.
Templeton, 258 N.W.2d 380, 383 (Iowa 1977) (“[T]he burden of proving specific intent
does not leave the State even when the defendant relies on an intoxication defense.”).
However, a question of fact concerning the defendant’s intoxication needs to arise from
the evidence presented. Id. (“The defendant retains the obligation to raise a fact
question for the jury on the intoxication issue regardless of the source of the evidence
. . . .”).
                                        12

. . . .” State v. Templeton, 258 N.W.2d 380, 383 (Iowa 1977). Essentially,

the issue requires us to determine if the district court abused its

discretion in refusing to give the intoxication instruction because the

level of intoxication shown by the evidence was sufficient to make the

intoxication instruction necessary for the jury to properly assess the

specific-intent elements of the crimes.

       Our prior cases have found fact questions to support the

intoxication defense based on expert testimony; lay witness testimony;

circumstances before, during, and after the crime; and the defendant’s

own testimony.      Broughton, 425 N.W.2d at 52 (using testimony from

defendant and two other witnesses of intoxication to raise a question

against police testimony of sobriety); State v. Klinger, 185 N.W.2d 759,

760–61     (Iowa   1971)    (finding   exclusion    of   doctor   testimony    on

hypothetical effects of amount of liquor on a specific size of person

constituted reversible error).    These circumstances are not exhaustive,

but capture the general sources of supporting evidence.            See State v.

Babers, 514 N.W.2d 79, 83 (Iowa 1994) (indicating supporting evidence

can come from any source).

       Intoxication has many degrees, and the law does not strive to

capture the precise degree of intoxication to sustain the defense of

intoxication other than enough evidence to support a finding that the

defendant was so intoxicated as to be incapable of formulating or

possessing the specific intent to commit the crime. See Wilson, 234 Iowa

at 75–76, 11 N.W.2d at 745–46.          Yet, the defense is not sustained by

mere evidence of intoxication. State v. Linzmeyer, 248 Iowa 31, 34, 79

N.W.2d     206,    207–08   (1956)     (“[S]imply   being   intoxicated   is   not

sufficient.”).
                                    13

      In State v. Watts, 244 N.W.2d 586, 589–90 (Iowa 1976), we

confronted the quantum of evidence necessary to establish a fact

question to support an instruction on the defense of intoxication.     We

found the district court committed reversible error in the case by failing

to instruct on the role of intoxication in determining specific intent when

the record at trial included evidence that the defendant, who had a

history of chronic alcoholism and blackouts, drank eighteen half-quart

cans of beer on the day of the crime and experienced memory lapses. Id.

Even though the arresting police officers opined he was not intoxicated, a

fact question was presented. Id. at 589.

      A jury question would normally be presented on whether the

intoxication of a person was of such a degree so as to negate the

formation of specific intent. 21 Am. Jur. 2d Criminal Law § 149, at 258

(2008) (noting the determination whether extent of intoxication negated

intent is for the fact finder). However, a threshold standard to submit

the instruction does exist and must be met, which at least requires more

than mere evidence of intoxication in the record. See 40A Am. Jur. 2d

Homicide § 515, at 363 (2008) (indicating the intoxication instruction is

required to be given only with substantial evidence to support a

conclusion defendant was incapable of forming intent).       In this case,

there was evidence that Guerrero Cordero consumed beer on the day of

the crime, but nearly all the witnesses testified he was not intoxicated.

Only one witness testified he was probably intoxicated, but this tenuous

and conclusory observation was not accompanied by additional evidence

or descriptions of conduct to indicate the degree of intoxication. There is

also no evidence in the record from any witness of any conduct or

behavior engaged in by Guerrero Cordero on the day of the crime to

support a finding of a high degree of intoxication. The instruction is not
                                     14

required until the evidence would permit the fact finder to conclude the

intoxication caused the defendant to lack the mental ability to act with

the required specific purpose. Unlike the evidence in Watts, the evidence

in this case only supported, at best, a finding of mere intoxication. Cf.

Watts, 244 N.W.2d at 589–90.        Under our standard, more evidence of

intoxication is required.

      In light of the evidence presented at trial, the jury could have only

speculated that any intoxication by Guerrero Cordero caused a mental

disability   that   made    him   incapable   of   forming   specific   intent.

Consequently, the district court did not abuse its discretion in failing to

instruct the jury on how to apply the evidence of intoxication in deciding

if the State established the specific-intent elements of the crimes.

      IV. Conclusion.

      We conclude the district court did not err in refusing to give the

intoxication instruction. We affirm the opinion of the court of appeals in

part and vacate it in part. We vacate that portion of the opinion that

concludes the district court erred in failing to submit the intoxication

instruction to the jury. We affirm the convictions and sentences of the

district court.

      DECISION OF COURT OF APPEALS AFFIRMED IN PART AND

VACATED IN PART; DISTRICT COURT JUDGMENT AND SENTENCE

AFFIRMED.
