                    IN THE COURT OF APPEALS OF IOWA

                                  No. 16-1515
                              Filed August 2, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DELRAY DANIEL GOULETTE,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Plymouth County, Robert J. Dull,

District Associate Judge.



       Delray Goulette appeals from convictions of three counts of criminal

trespass. AFFIRMED.



       Robert B. Brock II of the Law Office of Robert B. Brock II, P.C., Le Mars,

for appellant.

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

Attorney General, for appellee.



       Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
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VAITHESWARAN, Presiding Judge.

       Delray Goulette, an avid hunter, drove his truck onto three parcels of

property he did not own and lacked permission to enter. His truck got stuck on

one of the parcels. The next morning, Goulette checked the forecast and learned

rain was expected at noon. He asked a friend to help him retrieve the truck.

When their efforts were unsuccessful, Goulette enlisted the help of a farmer, who

drove his front-end loader to the site. There was a downpour, the front-end

loader slid into a ravine, and Goulette did not retrieve his truck that day or for

another three weeks.

       The State charged Goulette with three counts of trespass, in violation of

Iowa code sections 716.7 and 716.8(2) (2015).           A jury found him guilty as

charged.

       On appeal, Goulette contends the district court should have instructed the

jury on the “act of God” defense and on his lack of responsibility “for any damage

done by” the farmer. The State preliminarily responds with error preservation

and waiver-of-error concerns. We elect to bypass these concerns and proceed

to the merits. See, e.g., State v. Taylor, 596 N.W.2d 55, 56 (Iowa 1999); Wright

v. State, No. 98-1581, 2000 WL 564037, at *3 (Iowa Ct. App. May 10, 2000).

       A requested instruction must be given if it “correctly states the law, has

application to the case, and is not stated elsewhere in the instructions.” State v.

Martinez, 679 N.W.2d 620, 623 (Iowa 2004) (quoting State v. Kellogg, 542

N.W.2d 514, 516 (Iowa 1996)). Our review of “[a]lleged errors in the submission

or refusal to submit jury instructions” is for “correction of errors at law.” State v.
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Tipton, ___ N.W.2d ___, ___, 2017 WL 2705390, at *31 (Iowa 2017) (citing

Alcala v. Marriott Int’l, Inc., 880 N.W.2d 699, 707 (Iowa 2016)).

       “The act of God defense ‘is founded upon reason and justice that one

should not be held responsible for that which he could not have reasonably

anticipated, and could not have taken reasonable precautions to guard against.’”

Lanz v. Pearson, 475 N.W.2d 601, 603 (Iowa 1991) (quoting Oakes v. Peter Pan

Bakers, Inc., 138 N.W.2d 93, 98 (Iowa 1965)). Goulette’s proposed instruction

defined an act of God as “[a]n injury to person or property caused directly and

exclusively by natural causes, without human intervention, and which could not

have been prevented by the exercise of reasonable care and foresight.” If the

jury found “1. That the act of God occurred; and 2. That the act of God was the

sole cause of the damage,” the jury would also have been obligated to find

Goulette not guilty. The proposed instruction was premised on the rainfall on the

day of the attempted truck retrieval.

       Assuming without deciding that the act of God instruction correctly stated

the law and was not stated elsewhere in the instructions, it had no application to

the case. See id. at 603-04. While rain fell, it was indisputably anticipated by

Goulette and it was indisputably not the sole cause of damage to the properties.

Compare id. (concluding act of God instruction was improper where individuals

were aware of inclement weather conditions), with Oakes, 138 N.W.2d at 98

(concluding act of God instruction was proper where weather conditions were “an

extraordinary manifestation of nature not reasonably anticipated”). Because the

instruction was unsupported by the evidence, the district court did not err in

declining to give it.
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       Goulette’s request to instruct the jury that he should be absolved of

responsibility for damage caused by the farmer suffers the same fate but for a

different reason—it was an inaccurate statement of the law.

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

“caused” damage of more than $200 to each property. “Generally, causation

exists in criminal law, often without much fanfare, as a doctrine justifying the

imposition of criminal responsibility by requiring a ‘sufficient causal relationship

between the defendant’s conduct and the proscribed harm.’” State v. Tribble,

790 N.W.2d 121, 126 (Iowa 2010) (quoting State v. Marti, 290 N.W.2d 570, 584

(Iowa 1980)). “When causation does surface as an issue in a criminal case, our

law normally requires us to consider if the criminal act was a factual cause of the

harm.” Id. at 126-27. “The conduct of a defendant is a ‘factual cause of harm

when the harm would not have occurred absent the conduct.’” Id. at 127 (quoting

Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 26, at

346 (Am. Law Inst. 2010)). This is known as the “but for” test. Id.

       Goulette’s proposed instruction stating he “is not responsible for any

damage done by” the farmer is at odds with the but for test, which, as applied,

would lead to a determination that but for Goulette’s decision to trespass, the

truck would not have become wedged in the ground, he would not have needed

to ask for the farmer’s help, the farmer would not have traversed the property

with his front-end loader, and the properties would not have been damaged.

       Because Goulette’s proposed instruction on the farmer’s responsibility

relative to his was an incorrect statement of the law, the district court did not err

in declining to give it.
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We affirm Goulette’s convictions of three counts of trespass.

AFFIRMED.
