                    IN THE COURT OF APPEALS OF IOWA

                                   No. 15-0305
                                Filed April 6, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

FERMANI J. MALDONADO,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Karen A. Romano,

Judge.



      A defendant appeals his convictions for first-degree robbery, first-degree

burglary, and assault with intent to inflict serious injury. AFFIRMED.




      Mark C. Smith, State Appellate Defender, and Shellie L. Knipfer, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant

Attorney General.



      Considered by Tabor, P.J., and Bower and McDonald, JJ.
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TABOR, Presiding Judge.

       Fermani Maldonado challenges his convictions for robbery in the first

degree, burglary in the first degree, and assault with intent to inflict serious injury.

He argues the State failed to prove his participation in these crimes amounted to

aiding and abetting or joint criminal conduct.        Because the jury could have

reasonably concluded from the State’s proof that Maldonado displayed a metal

pipe to the victim, followed his accomplice’s directions while inside the house,

pointed out to his accomplice that the target of the assault was in the car, and

accompanied his accomplice in fleeing the scene, we find substantial evidence to

support both theories of Maldonado’s vicarious liability for these offenses.

Because Maldonado does not challenge the marshalling instructions, asks only

for reversal of his convictions, and does not seek a remand for a new trial based

on the general verdicts, we affirm.

I.     Facts and Prior Proceedings

       In broad daylight on June 23, 2014, thirty-two-year-old Tyree Smith kicked

in the side door of Accia Parker’s house, put a gun to her forehead, and yelled:

“Where is the money?” At first, Parker believed she was the victim of a prank.

But when she saw the second intruder, sixteen-year-old Maldonado, standing in

the doorway and displaying a metal pipe, she realized the home invasion was not

a joke. She did not recognize either intruder. A very frightened Parker screamed

back at Smith: “What money?”

       Parker’s husband, Jeremiah Canada, was getting ready for work in the

next room. Canada heard the break-in and jumped into a closet. Maldonado
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followed Smith’s directive to look for another person in the adjoining room but did

not find Canada.

      Parker’s eighteen-year-old daughter, Carvona Henderson, was also inside

the house at the time of the break-in. Henderson had stopped by to give Canada

a ride to work. Henderson was scared by the sight of Smith’s gun and dashed

toward the car where her boyfriend, DaShawn Van Dyke, and their four-month-

old baby were waiting. As she ran toward the car, she turned around and heard

Maldonado say to Smith, “[T]here’s DaShawn,” while pointing at the car. Just

then, Smith grabbed Henderson by the throat and threw her against the car.

Henderson blacked out as Smith strangled her.

      Meanwhile, from inside the car, Van Dyke also saw Maldonado point at

him. Van Dyke recognized Maldonado from “seeing him around” but didn’t know

Smith. Just as Smith opened the car door, Van Dyke put his baby daughter

behind him and pulled his own gun from beneath the car seat. Smith reached in

and shot once, grazing Van Dyke’s leg. In return, Van Dyke fired his semi-

automatic weapon toward Smith, and Smith fell backward. Before he could fire

again, Van Dyke’s gun jammed. When Smith got back up, he fired multiple times

toward the car, showering Van Dyke and the crying baby with shattered glass.

      After the barrage of bullets, Maldonado urged Smith, “Come on. We have

to go. We have to go.” The pair ran down the driveway and into the woods. Van

Dyke started to chase them, but Parker discouraged it, opting instead to call the

police. When Henderson regained consciousness, she found her baby in the

car, unharmed.
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        Smith and Maldonado were on foot just a few blocks away when Smith’s

wife called his cell phone. Maldonado answered, telling her Smith had been shot

in the chest. Police arrested Smith and transported him to the hospital. Also a

few blocks from the crime scene, police found a discarded metal pipe that

matched the description of the one carried by Maldonado. Police later arrested

Maldonado after Parker and Henderson identified him in photographic arrays.

        The State charged Maldonado in a three-count trial information, alleging

he committed or aided and abetted the commission of (1) robbery in the first

degree, a class “B” felony, in violation of Iowa Code sections 711.1 and 711.2

(2013); (2) burglary in the first degree, a class “B” felony, in violation of sections

713.1 and 713.3; and (3) attempt to commit murder, a class “B” felony, in

violation of section 707.11. Maldonado’s four-day jury trial occurred in December

2014.    For all three offenses, the district court instructed the jury on the

alternative theories that Maldonado acted as the principal, as an aider and

abettor, or engaged in joint criminal conduct. The jury returned guilty verdicts on

the charged offenses of first-degree robbery and first-degree burglary. On the

third count, the jury acquitted Maldonado of attempted murder, but returned a

guilty verdict on the lesser-included offense of assault with intent to inflict serious

injury, in violation of section 708.2(1). The district court imposed concurrent

sentences for a total period not to exceed twenty-five years.

II.     Standard of Review

        When faced with a challenge to the sufficiency of the evidence, we review

for correction of legal error. State v. Tyler, 873 N.W.2d 741, 746 (Iowa 2016).

We regard the evidence in the light most favorable to the State and will undo the
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jury’s work only if the record lacks substantial evidence in support of the guilty

verdict.   Id. at 746-47.   That “favorable light” includes making all legitimate

inferences which may fairly be deduced from the evidence offered.            State v.

Sanford, 814 N.W.2d 611, 615 (Iowa 2012). We will consider the evidence to be

substantial if it can convince a rational fact finder that the defendant is guilty

beyond a reasonable doubt. Id. Our assessment looks to both inculpatory and

exculpatory evidence in the record. Id. Our standard of review of verdicts in

criminal cases recognizes the jury may reject certain evidence and credit other

evidence. Id.

III.   Analysis of Vicarious-Liability Theories

       At trial, Maldonado moved for judgment of acquittal, contesting the State’s

theories of aiding and abetting and joint criminal conduct. On appeal, he frames

the issue as follows: “[W]hether Maldonado aided and abetted or engaged in joint

criminal conduct with Tyree [Smith] when [Smith] burglarized Parker’s home,

robbed Parker, and assaulted Van Dyke?” Maldonado’s challenge requires us to

examine the two types of vicarious liability countenanced by Iowa statutes where

accomplices are considered to be equally as culpable as principals. See Iowa

Code §§ 703.1 (aiding and abetting),1 703.2 (joint criminal conduct).2 Depending


1
  Iowa Code section 703.1 provides:
       All persons concerned in the commission of a public offense, whether they
       directly commit the act constituting the offense or aid and abet its
       commission, shall be charged, tried and punished as principals. The guilt
       of a person who aids and abets the commission of a crime must be
       determined upon the facts which show the part the person had in it, and
       does not depend upon the degree of another person’s guilt.
2
  Iowa Code section 703.2 provides:
       When two or more persons, acting in concert, knowingly participate in a
       public offense, each is responsible for the acts of the other done in
       furtherance of the commission of the offense or escape therefrom, and
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upon the facts of the prosecution, it may be appropriate for the district court to

instruct the jury on both theories. State v. Satern, 516 N.W.2d 839, 843 (Iowa

1994). We will consider each theory in turn.

       A. Aiding and Abetting

       Maldonado aided and abetted Smith if he assented to or approved of

Smith’s criminal actions either by active participation or by encouraging them in

some manner before or during their commission. See Tyler, 873 N.W.2d at 750.

If the State proved nothing more than Maldonado’s knowledge of the crime or

proximity to the crime scene, the record would lack sufficient evidence of aiding

and abetting. See State v. Tangie, 616 N.W.2d 564, 574 (Iowa 2000).

       Maldonado asserts the State proved only that he was present at the scene

when Smith, his older cousin, broke into Parker’s residence, demanded money,

and then assaulted Van Dyke. Parker acknowledged Maldonado said nothing

inside the house, and while she remembered Maldonado holding a “silver pole”

she did not testify that he brandished it in a threatening manner. Maldonado also

contends “if he was truly aiding Tyree in the burglary,” he would have opened the

closet door to pull Canada out of his hiding place. As for informing the shooter—

“there is DeShawn”—Maldonado contends it is “unknown” what he intended by

this “recognition statement.”

       A reasonable jury could infer from Maldonado’s conduct and statements

that he actively participated in or, at a minimum, encouraged Smith’s commission



       each person’s guilt will be the same as that of the person so acting,
       unless the act was one which the person could not reasonably expect to
       be done in the furtherance of the commission of the offense.
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of the burglary, robbery, and assault. Maldonado entered Parker’s home with

Smith. Maldonado stood in the door holding a metal pipe so that it was visible to

the victim while Smith demanded money at gunpoint. He swept through the

adjoining bedroom at Smith’s behest to check for another occupant. Maldonado

then went with Smith to the driveway, where he pointed to and named the

eventual shooting victim. After Smith was shot, Maldonado urged that it was time

to leave, and the pair fled together. During their flight, Maldonado answered

Smith’s phone and told Smith’s wife about the shooting, also giving her directions

to their location.   Evidence of Maldonado’s “presence, companionship, and

conduct” before and after the commission of the offenses was enough from

which the jury could infer his active participation in the crimes. See State v.

Hearn, 797 N.W.2d 577, 581 (Iowa 2011). We conclude the State presented

substantial evidence supporting the aiding-and-abetting alternative.

      B. Joint Criminal Conduct

      Maldonado engaged in joint criminal conduct if—acting in concert with

Smith—he knowingly participated in one crime, and a second, reasonably-

foreseeable crime resulted from their conduct in furtherance of the first offense.

See State v. Rodriguez, 804 N.W.2d 844, 852 (Iowa 2011).

      Maldonado claims the State did not offer evidence he acted together with

Smith or that he knowingly participated in the crimes of robbery in the second

degree or burglary in the second degree. But as the State argues on appeal, the

jury was free to accept any of a number of permutations regarding the concerted

acts of Smith and Maldonado.         For instance, the evidence supported a

conclusion that Maldonado committed the offenses of second-degree robbery
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and second-degree burglary—either as a principal or aider and abettor—and that

in the course of committing those offenses, Smith committed acts that elevated

those crimes to first-degree robbery and first-degree burglary.         It would be

reasonably foreseeable that first-degree robbery could result from an armed

home invasion when the accomplice started demanding money from the home’s

occupant.    Concomitantly, it would be reasonably foreseeable that acts in

furtherance of the planned robbery could result in first-degree burglary.            In

addition, the jury could have concluded the assault of Van Dyke in the driveway

was a reasonably foreseeable consequence of carrying out the robbery and

burglary when one of the home’s occupants was running toward the car. See

State v. Jefferson, 574 N.W.2d 268, 277-78 (Iowa 1997) (embracing joint-

criminal-conduct theory to uphold separate assault on convenience store clerk

that could have been reasonably expected during planned robbery).

       We conclude the State’s evidence supports both vicarious-liability theories

for all three offenses.

IV.    Remedy

       Finally, we must consider the appropriate remedy in this case.          While

Maldonado’s appellate brief vigorously challenges the State’s evidence in

support of aiding and abetting and joint criminal conduct, it does not advance any

analysis regarding the insufficiency of the State’s proof that Maldonado acted as

the principal in the offenses. Accordingly, the State does not offer a counter

argument regarding his liability as the principal in the crimes. Maldonado’s only

mention of his role as principal appears in the appellant brief’s final paragraph:
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       [T]here was insufficient evidence that Maldonado was guilty by
       means of aiding and abetting or joint criminal conduct for the
       offenses burglary in the first degree, robbery in the first degree, or
       assault with intent to inflict serious injury. There was no evidence
       of Maldonado acting as the principal in any of the three offenses.
       Therefore, Maldonado’s judgment and sentence must be reversed.

       When an appellant has demonstrated that one of several theories of

liability submitted to the jury has not been proved and the jury received only a

general verdict form, our supreme court has decided the appropriate remedy is to

reverse the conviction and remand for a new trial. See Tyler, 873 N.W.2d at 752-

53 (finding substantial evidence to prove defendant’s liability as the principal and

as an aider and abettor but also finding joint-criminal-conduct theory was not

supported by the evidence).       The Tyler court determined a new trial was

necessary because the general verdict forms provided “no way of knowing

whether the jury found [the defendant] guilty . . . as a principal, an aider and

abettor, or under the theory of joint criminal conduct.” Id. at 753 (quoting State v.

Smith, 739 N.W.2d 289, 295 (Iowa 2007)). The Tyler court also quoted State v.

Hogrefe, 557 N.W.2d 871, 881 (Iowa 1996), where the challenge was to the

marshalling instructions. Id. at 754. The Hoegrefe court determined the district

court erred in giving a marshalling instruction allowing the jury to consider three

theories of liability with a general verdict form when only one of the theories was

supported by the evidence. 557 N.W.2d at 881; see also State v. Smith, 739

N.W.2d 289, 293-95 (Iowa 2007) (remanding for new trial where trial court

erroneously overruled defense objection to jury instruction on joint criminal

conduct).
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       In contrast to Hoegrefe, Smith, and Tyler, Maldonado asks only for an

outright reversal of his convictions.      He does not present any argument

concerning the error caused by instructing the jury on multiple theories and use

of only a general verdict form.       Further, Maldonado did not object to the

configuration of the marshalling instructions at trial or request a different form of

verdict to correspond with the different theories presented, nor does he do so on

appeal. It is the instructional error in the alternative-theory cases, in combination

with the use of a general verdict form, that requires an appellate court to remand

for a new trial. See State v. Mays, 204 N.W.2d 862, 864-65 (Iowa 1973) (noting

submission of an instruction unsupported by the evidence is generally

prejudicial). Maldonado does not allege such error, nor does he request a new

trial based on faulty marshalling instructions or general verdict forms.

Accordingly, we do not grant the relief afforded in Tyler, Smith, and Hoegrefe.

       AFFIRMED.
