                  IN THE SUPREME COURT OF IOWA
                                 No. 14–0256

                           Filed January 22, 2016


STATE OF IOWA,

      Appellee,

vs.

KENT ANTHONY TYLER III,

      Appellant.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Polk County, Arthur E.

Gamble, Judge.



      The State seeks further review of a decision of the court of appeals

reversing   the    defendant’s   second-degree   murder   conviction   for

insufficient evidence. DECISION OF COURT OF APPEALS VACATED;

DISTRICT COURT JUDGMENT AFFIRMED IN PART AND REVERSED

IN PART AND CASE REMANDED.



      Angela Campbell of Dickey & Campbell Law Firm, PLC, Des

Moines, for appellant.



      Thomas J. Miller, Attorney General, Bruce L. Kempkes and

Linda J. Hines, Assistant Attorneys General, John P. Sarcone, County

Attorney, and Daniel Voogt and Stephanie Cox, Assistant County

Attorneys, for appellee.
                                     2

MANSFIELD, Justice.

      This case requires us to consider whether substantial evidence

supports the second-degree murder conviction of an individual who

struck the first, nonlethal blow in a fatal beating. The defendant’s blow

knocked the victim down. Others in the group surrounding the victim

then kicked and stomped him to death.

      We conclude that substantial evidence supports the jury’s guilty

verdict on theories of both principal liability and accomplice liability.

However, there is not substantial evidence to support the theory of joint

criminal conduct that was also submitted to the jury.       Since the jury

returned a general verdict of guilty, and the possibility exists that one or

more jurors found the defendant guilty only on the basis of the invalid

theory of joint criminal conduct, we must reverse the defendant’s

conviction and remand for a new trial. In doing so, we affirm the district

court’s evidentiary ruling relating to prior fighting by the defendant and

others who assaulted the victim.

      I. Facts and Procedural Background.

      We recite the facts in the light most favorable to the State. State v.

Neiderbach, 837 N.W.2d 180, 187 (Iowa 2013). On the night of August

24–25, 2013, a crowd of twenty to forty teenagers was gathered at an

empty lot next to the Des Moines River in downtown Des Moines. They

were drinking, dancing, and listening to music. About ten to fifteen cars

were present. Some in the crowd were dancing on the cars.

      Richard Daughenbaugh, a forty-year-old man who was under the

influence of alcohol and methamphetamine, pulled up in his truck

uninvited. He honked his horn repeatedly at one of the male teenagers

present, insisting he move out of the way so Daughenbaugh could park.

After they had exchanged words, Daughenbaugh parked his vehicle.
                                          3

Daughenbaugh then got out of his vehicle and began mingling, dancing,

and drinking with the crowd for about fifteen minutes.

       Isiah Berry had been fishing with his girlfriend Monica Perkins

nearby for most of the day. He gave up trying to fish because one of the

teenagers had grabbed his fishing pole and made a sarcastic comment

when Berry asked for it back. Berry and Perkins were making plans to

go home. But they stayed when Perkins saw a situation that made her

believe something was about to happen.
      A group of the partiers had surrounded Daughenbaugh. One of
the people in the group, the defendant Kent Tyler, threw a punch at
Daughenbaugh’s face that knocked him to the ground. 1 Daughenbaugh
moved on the ground and tried to get up. He never did get up. Members
of the group immediately jumped and stomped on Daughenbaugh as he
was lying on the ground.         While he was being stomped on,
Daughenbaugh was helpless, doing nothing to defend himself.

       Perkins rushed over and threw herself on top of Daughenbaugh,

attempting to protect him. When one person tried to kick Perkins, Berry

ran in to rescue his girlfriend. An assailant hit Berry from behind; Berry

hit his assailant back.       Eventually some of the partiers chased Berry,

tripped him, hit him, and stomped on him as well.

       Perkins made a frantic call to 911 and tried to describe what was

happening. Two girls in the crowd grabbed Perkins’s phone from her and
threw it away. Still, the call went through long enough that police soon

arrived.

       1Witnesses   offered differing accounts as to whether Daughenbaugh did anything
to provoke Tyler’s punch. Perkins and B.B. (a seventeen year old who was part of the
gathering) testified that Daughenbaugh was just partying and not causing any trouble.
Some members of the gathering testified that Daughenbaugh walked up to Tyler, or that
Daughenbaugh touched or pushed up against Tyler.
       Likewise, witnesses differed as to what Tyler did after punching Daughenbaugh.
One witness from the group of partiers (L.S.) testified Tyler walked away. Another
witness (E.R.) testified Tyler hit Daughenbaugh but did nothing else thereafter. On the
other hand, Perkins testified, “I think it was the one guy [who] hit his face [who]
stomped on his face.”
                                    4

      Berry suffered bruises and abrasions. Daughenbaugh died from

his injuries.   Although Daughenbaugh also had facial abrasions and

bruising, the autopsy revealed that the cause of his death was a severely

torn mesentery, leading to internal bleeding.      The mesentery is the

membrane connecting several body organs to the posterior abdominal

wall. Daughenbaugh’s mesentery was torn due to his being kicked and

stomped on when he was unable to defend himself.          As the medical

examiner later explained, a torn mesentery is typically seen in child

abuse cases but is unusual in the case of an adult like Daughenbaugh

who can normally protect himself. The medical examiner added, “[T]hese

injuries from a forensic standpoint indicate that the victim, the decedent,

was probably unable to defend himself at the time the blows were

rendered to the abdomen.”

      The next day, Tyler was Mirandized and interviewed. He admitted

he had attended the party by the river that night. However, he claimed

he had been sitting in a parked car playing music at the time and had no

involvement in the beating whatsoever.

      Tyler and three others—James Shorter, Yarvon Russell, and

Leprese Williams—were subsequently charged with first-degree murder.

See Iowa Code § 707.2 (2013). The cases were severed for trial. Tyler’s

case went to trial from December 9 through December 17. In addition to

first-degree murder, the jury was instructed on the lesser included

offenses   of   second-degree   murder,   attempted   murder,    voluntary

manslaughter, willful injury causing serious injury, willful injury causing

bodily injury, involuntary manslaughter by public offense, involuntary

manslaughter by act, assault with intent to inflict serious injury, assault

causing serious injury, assault causing bodily injury, and assault.
                                             5

      At trial, the State’s witnesses included B.B. 2 She testified that she

saw a group form around Daughenbaugh that included Tyler, Shorter,

Russell, and Williams. Over Tyler’s objection, she also testified that she

wanted to leave at that point because she had seen them fighting before,

she knew what was going to happen, and she didn’t want to be a part of

it. She testified that although she did not see who struck the first blow,

she did see Daughenbaugh fall to the ground and get beaten.

      On first-degree murder, the jury was instructed that they could

find Tyler guilty as a principal or under an aiding and abetting or joint

criminal conduct theory. Thus, the instruction read as follows:

      The State must prove all of the following elements of Murder
      in the First Degree:

   1. On or about August 25, 2013, the defendant, individually or
      through joint criminal conduct or through aiding and
      abetting another and without justification, assaulted Richard
      Daughenbaugh.

   2. Richard Daughenbaugh died as a result of the assault.

   3. The defendant, individually or through joint criminal
      conduct or someone he aided and abetted, acted with malice
      aforethought.

   4. The defendant, individually or through joint criminal
      conduct or someone he aided and abetted, acted willfully,
      deliberately, premeditatedly and with a specific intent to kill
      Richard Daughenbaugh.

      The court’s second-degree murder instruction restated these same

elements, except it omitted the fourth element of a specific intent to kill.

      The jury acquitted Tyler of first-degree murder, but found him

guilty of second-degree murder. See id. § 707.3. It did not reach the

remaining lesser included offenses. The court overruled Tyler’s motions


      2We   refer to the juvenile witnesses by initials only.
                                           6

for judgment of acquittal and for new trial and sentenced Tyler to fifty

years imprisonment. See id. § 707.3; id. § 902.12(1).

       Tyler appealed, arguing there was insufficient evidence to support

his conviction on any of the three murder theories. In addition, Tyler

asserted the district court erred in admitting B.B.’s testimony that when

the group formed around Daughenbaugh including Tyler, Shorter,

Russell, and Williams, B.B. wanted to leave because after having seen

them fight in the past, she thought fighting was going to happen again.

       We transferred Tyler’s appeal to the court of appeals. That court

reversed Tyler’s second-degree murder conviction, finding insufficient

evidence to support any of the three theories advanced by the State at

trial—i.e., principal liability, aiding and abetting, or joint criminal

conduct. 3    One member of the panel dissented and would have found

sufficient evidence to support the aiding and abetting and joint criminal

conduct theories. We granted the State’s application for further review.

       II. Standard of Review.

       As we explained recently,

              We review sufficiency-of-evidence claims for correction
       of errors at law. In reviewing the evidence, we view the
       evidence in the light most favorable to the State. “[W]e will
       uphold a verdict if substantial evidence supports it.”
       “Evidence is considered substantial if, when viewed in the
       light most favorable to the State, it can convince a rational
       jury that the defendant is guilty beyond a reasonable doubt.”

State v. Rooney, 862 N.W.2d 367, 371 (Iowa 2015) (citations omitted)

(quoting State v. Sandford, 814 N.W.2d 611, 615 (Iowa 2012)).                       “We

        3It is not clear why the court of appeals remanded for entry of a judgment of

acquittal instead of just vacating the second-degree murder conviction and remanding
for further proceedings. There was clearly sufficient evidence to support a conviction on
some of the lesser included offenses as to which the jury had been instructed but did
not reach, even if the evidence were deemed insufficient to sustain a second-degree
murder conviction.
                                           7

review evidentiary rulings regarding the admission of prior bad acts for

abuse of discretion.” State v. Putman, 848 N.W.2d 1, 7 (Iowa 2014).

      III. Sufficiency of the Evidence.

      For reasons that will be discussed below, we must address all

three theories of criminal liability that were presented to the jury. We

should be clear at the outset what Tyler does and does not challenge. He

does not dispute there was substantial evidence that he threw the first

punch that knocked Daughenbaugh to the ground.

      A.     Liability as a Principal.         On the individual liability theory,

Tyler challenges only the State’s evidence of causation.               He does not

dispute the State presented substantial evidence on the other elements,

including malice aforethought.

      To find Tyler guilty on a theory of individual liability, the jury had

to conclude that Tyler’s own personal assault on Daughenbaugh caused

Daughenbaugh’s death. 4          While there is certainly evidence that Tyler

started a chain of events by punching Daughenbaugh in the face and

knocking him to the ground, the autopsy indicated that none of the

blows to Daughenbaugh’s head were fatal. Rather, Daughenbaugh died

as a result of tears in his mesentery that occurred when members of the
group stomped and kicked on his abdomen when he was down. Tyler

relies on these facts to urge that an individual liability theory of guilt

should not have been submitted to the jury.

      The State responds in two ways. First, on this record, it argues the

jury was entitled to find that Tyler participated in the kicking and

stomping.       Second, it argues that without Tyler’s initial punch,

Daughenbaugh would have not have been rendered helpless and then

      4The   jury was not given a separate instruction on causation.
                                           8

killed by the subsequent kicking and stomping. In other words, Tyler’s

initial punch was a but-for cause of Daughenbaugh’s death.

       The first of these arguments does not convince us.                 No witness

testified that Tyler (or someone identified through other testimony as

Tyler) was one of the persons kicking or stomping on Daughenbaugh’s

abdomen. True, substantial evidence exists that Tyler remained in the

group circling Daughenbaugh after Daughenbaugh fell. 5                 But everyone

agreed there were a number of individuals in that group, and to draw the

inference that Tyler delivered one of the fatal blows requires guesswork

and speculation.

       However, we find the State’s alternative argument more persuasive.

In our recent decisions addressing questions of causation in criminal

law, we have applied the Restatement (Third) of Torts. Thus, in State v.

Tribble, 790 N.W.2d 121, 126–27 (Iowa 2010), we cited the Restatement

(Third) of Torts: Liability for Physical and Emotional Harm §§ 26–27, at

346, 376 (Am. Law. Inst. 2010) [hereinafter Restatement (Third)] as well

as our opinion in Thompson v. Kaczinski, 774 N.W.2d 829, 836–39 (Iowa

2009). We said,

       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.

             The conduct of a defendant is “a factual cause of harm
       when the harm would not have occurred absent the
       conduct.” We have traditionally labeled this straightforward,
       factual cause requirement of causation the “but for” test. It
       operates to identify factual causation in each instance, but
       requires further assistance when multiple acts occur, each of
       which alone would have been a factual cause in the absence
       of the other act or acts. This assistance now comes in the

       5One   of the teenagers, L.S., testified that she saw “the kid hit [Daughenbaugh]
and then walk off.” But she was the only witness to so testify and Perkins testified to
the contrary.
                                     9
      form of a legal principle to govern the outcome. When such
      multiple causes are present, our law declares each act to be
      a factual cause of the harm.

Tribble, 790 N.W.2d at 126–27 (citations and footnote omitted) (quoting

Restatement (Third) § 26, at 346).

      In State v. Hennings, we expressly relied on Tribble’s “but for” test

in upholding the defendant’s hate-crime conviction for driving his pickup

truck at a group of African-American boys walking in the street after

getting in an argument with them. 791 N.W.2d 828, 835–36, 839 (Iowa

2010). We explained,

      To find a causal connection, the jury need not believe the
      only motivation for the defendant’s acts was the victim’s race
      or other protected status. Instead, to find a defendant guilty
      under [Iowa Code] section 729A.2, the jury must determine
      beyond a reasonable doubt the defendant would not have
      acted absent the defendant’s prejudice.

Id. at 835.    We concluded, “[T]here is substantial evidence Hennings

would not have run the boys down with his truck, and run over A.M.,

except for the boys’ race.” Id.

      Then, in State v. Adams, we dealt with a case where an allegedly

intoxicated motorist ran into and fatally killed a bicyclist who was riding

in the same direction as the motorist on a heavily traveled street late at

night when the right headlight on the motorist’s car was not functioning.

810 N.W.2d 365, 367, 373 n.9 (Iowa 2012). The motorist was convicted

of unintentionally causing the death of another by operating a motor

vehicle while intoxicated, a Class B felony. Id. at 367–68; see Iowa Code

§ 707.6A.     We indicated that Tribble had “clarified” the principles of

causation to be applied in a criminal case and said, “Except where

multiple acts contribute to cause a consequence, the determination of

factual causation turns simply on whether ‘the harm would not have

occurred absent the [defendant’s] conduct.’ ” Adams, 810 N.W.2d at 372
                                     10

(quoting Tribble, 790 N.W.2d at 127). We characterized Adams’s case as

a “normal” one and stated that “the causation question in a prosecution

under Iowa Code section 707.6A(1) asks whether the victim’s death

would have occurred in the absence of the defendant’s criminal act—

intoxicated driving.”   Id.   We then reserved for possible postconviction

proceedings the question whether Adams’s counsel had been ineffective

in failing to raise as a defense the lack of a causal connection between

Adams’s alleged intoxicated driving and the victim’s death. Id. at 372–

74.

      There is substantial evidence that Tyler’s punch was a but-for

cause of Daughenbaugh’s death. This blow knocked Daughenbaugh to

the ground and he never got up. A reasonable jury could infer that if

Tyler had not hit Daughenbaugh, knocked him to the ground, and put

him in a position of relative helplessness, he would not have died that

night from the stomping and kicking that immediately followed.

      Tyler counters that “[c]ausation in the criminal context is not

satisfied by simply showing some attenuated set of circumstances by

which one could argue there is ‘but for’ causation,” and cites to State v.

Garcia, 616 N.W.2d 594, 596–97 (Iowa 2000). The Garcia decision does

not support Tyler, however.       For one thing, Garcia states that “[t]he

principles of causation normally associated with civil tort litigation are

pertinent in criminal cases.”     Id. at 596.   Those tort principles have

evolved in recent years.      In 2009, for tort purposes, we adopted the

Restatement (Third) on causation. See Thompson, 774 N.W.2d at 839.

Then, in a succession of criminal cases in 2010 and 2011, we applied

our updated law of tort causation from Thompson and the Restatement

(Third) in the criminal context.       See Adams, 810 N.W.2d at 372;

Hennings, 791 N.W.2d at 835; Tribble, 790 N.W.2d at 126–27. In Adams,
                                          11

we quoted from State v. Dalton, 674 N.W.2d 111, 118 (Iowa 2004), which

takes a similar view of causation to Garcia, only to distance ourselves

from that quotation by explaining how we had clarified the law of

criminal causation in Tribble. See Adams, 810 N.W.2d at 372. Tyler fails

to mention, let alone address, our recent criminal caselaw on causation.

         Moreover, Tyler’s parade of horribles is overstated.      Tyler argues

that if the State’s view of causation were correct, other individuals and

entities could be criminally liable for Daughenbaugh’s death on a but-for

basis.      In Tyler’s view, this includes the drug dealer for selling

methamphetamine to Daughenbaugh, the City of Des Moines for creating

a desirable party locale by the Des Moines River, and Daughenbaugh’s

family     for   failing   to   prevent    him   from   drinking   and   using

methamphetamine that night.               This line of argument, however,

disregards the other elements that would need to be established as a

prerequisite to criminal liability, including malice aforethought in the

case of murder.

         Additionally, the chain of causation here is far from attenuated. A

group surrounded Daughenbaugh in what outsiders viewed as a

threatening situation; one person in the group, the defendant, struck

Daughenbaugh and knocked him to the ground; others in the group

promptly kicked and stomped him in the abdomen until he died. Even if

“proximate cause” or what we now call “scope of liability” remains part of

the State’s causation burden in a criminal case, see Thompson, 774

N.W.2d at 837, that burden was met here. Substantial evidence exists

that a group assault on a mismatched and intoxicated Daughenbaugh

was a reasonably foreseeable consequence or within the range of harms

of Tyler’s initial act of knocking down Daughenbaugh with a punch to his

head. See id. at 838–39.
                                    12

      Thus, under pre-Tribble caselaw, we believe a reasonable juror

could find not only that Tyler’s blow was a but-for cause of

Daughenbaugh’s death, but also that it “create[d] the kind of dangerous

condition that would make [the ensuing lethal blows] more likely to

occur.” Garcia, 616 N.W.2d at 597 (alteration added) (quoting State v.

Murray, 512 N.W.2d 547, 550 (Iowa 1994)).        To put it another way, a

reasonable juror could find that the fatal kicking and stomping was “part

of a chain of events set in motion by the assailant’s act and leading

directly to the victim’s death.” Murray, 512 N.W.2d at 550. “It is not

essential for conviction in all cases that the accused actively participated

in the immediate physical impetus of death.” State v. Marti, 290 N.W.2d

570, 579 (Iowa 1980).

      Again, accepting the State’s version of the facts, after a group

surrounded Daughenbaugh, Tyler threw the first punch without

provocation, knocking Daughenbaugh to the ground. Others then joined

in, kicking and stomping on Daughenbaugh once he was down—thereby

killing him. To put it another way, if Daughenbaugh’s estate sued Tyler

for wrongful death, would the estate be able to get to the jury on the

question of causation under either current or former Iowa tort

principles? We think the answer is clearly yes. See State v. Hubka, 480

N.W.2d 867, 869 (Iowa 1992) (“It is well-established that the definition of

‘proximate cause’ in criminal cases is identical to its definition in civil

cases.”); State v. McFadden, 320 N.W.2d 608, 613, 616–17 (Iowa 1982)

(finding that “ordinary proximate cause principles” applied to causation

in an involuntary manslaughter case and that “the record contains

substantial evidence that defendant’s participation in a drag race with

[the driver of another vehicle] was a concurring proximate cause of the
                                            13

accident in which [the driver of the other vehicle and the driver of a third

vehicle] were killed”).

      Notwithstanding their use of the Restatement (Third) to analyze

criminal causation, Tribble and Adams left open the possibility that

criminal causation might still require more than proof of but-for factual

causation.      Thus, in Tribble we observed that “[t]he nature of the

argument presented by Tribble in this case does not require us to

consider the element of causation beyond a factual-cause analysis.” 790

N.W.2d at 127 n.1. In Adams we likewise said that we “do not address

today whether the ‘legal cause’ aspect of the former proximate cause

doctrine has any continuing viability in criminal cases after our decision

in Thompson v. Kaczinski.” 810 N.W.2d at 372 n.7. For reasons we have

already discussed, we need not resolve that question today either. Even

if criminal causation—unlike tort causation—still embraces notions of

proximate or legal cause, we would find that substantial evidence

supports a finding of proximate causation in this case.

      B.     Liability as an Aider and Abettor.             We now turn to Tyler’s

potential criminal liability as an aider and abettor. We have said,

      To sustain a conviction on the theory of aiding and abetting,
      the record must contain substantial evidence the accused
      assented to or lent countenance and approval to the criminal
      act either by active participation or by some manner
      encouraging it prior to or at the time of its commission.

State v. Spates, 779 N.W.2d 770, 780 (Iowa 2010) (quoting State v.

Tangie, 616 N.W.2d 564, 574 (Iowa 2000)). 6

      Tyler     contends      there    is   insufficient     evidence   he   actively

participated in the beating or in some manner encouraged it prior to or


      6The   jury was given an instruction consistent with this law.
                                       14

at its time of commission.       We disagree.     While Tyler takes it as an

undisputed fact that he walked away after hitting Daughenbaugh, this

was the testimony of only one witness, L.S. No one else testified that

Tyler left the crowd that had formed around Daughenbaugh.                   And

Perkins testified,

      They started with the one. I think it was the one guy hit his
      face stomped on his face. They didn’t just stomp on his face.
      They jumped up in the air and stomped on his face like he
      was a trampoline.

The jury was entitled to find the testimony of Perkins, a Good Samaritan
who tried to rescue Daughenbaugh, more credible than that of L.S., a

sixteen year old who stood by and may have been friends with some of

the perpetrators.

      Furthermore, Tyler’s act of decking Daughenbaugh with a punch

to his face after a crowd had surrounded Daughenbaugh could be

regarded as encouragement for what subsequently happened—i.e.,

further   beating    of      Daughenbaugh    once    he    hit    the    ground.

Circumstances matter. Viewing the evidence in the light most favorable

to the State, this is not a case where Tyler simply hit someone at random

and would have been astonished to see others continue the beating.

Rather, a crowd including Tyler encircled Daughenbaugh—an older,

intoxicated person who had barged rudely and uninvited into a large

teenager party. At that point, Tyler threw the first punch that knocked

Daughenbaugh down.           The State’s aiding and abetting theory is that

Tyler’s punch was at least as much encouragement as a “let’s get him”

statement would have been.

      Perkins    testified    that   when   she   saw     the    crowd   around

Daughenbaugh, she told her boyfriend Berry they shouldn’t leave

because “something is about to happen.” B.B. testified that when she
                                          15

saw the crowd form around Daughenbaugh, she wanted to leave because

“I know what’s going to happen, and I don’t want to be a part of it.” A

reasonable jury could find that when Tyler struck Daughenbaugh, he

expected and intended that others would continue the beating. 7 We find

sufficient evidence to support a jury verdict that Tyler aided and abetted

in the murder of Daughenbaugh. See, e.g., Spates, 779 N.W.2d at 777–

78 (finding that a participant in a gun battle between two rival groups

could be liable for aiding and abetting the shooting death of a bystander

even if the fatal shot was fired by a member of the other group); Fryer v.

State, 325 N.W.2d 400, 406 (Iowa 1982) (noting that aiding and abetting

“may be inferred from circumstantial evidence including presence,

companionship and conduct before and after the offense is committed”).

          In rejecting the aiding and abetting theory in this case, the court of

appeals conceded a jury could find that Tyler knew others would assault

Daughenbaugh, but questioned the evidence that Tyler intended a

deadly assault to occur. At oral argument before us, Tyler picked up on

this theme, challenging the evidence that he intended Daughenbaugh be

killed.     This line of argument, however, conflates malice aforethought,

which is required for second-degree murder, with a specific intent to kill,

which is only an element of first-degree murder. Tyler was acquitted of

first-degree murder.

          We     recently   elaborated   on    the   distinction   between    malice

aforethought and specific intent to kill in State v. Ceretti, 871 N.W.2d 88,

93–94 (Iowa 2015), emphasizing that the former concept is broader than

the latter.       “Malice aforethought requires the actor to have ‘a fixed

          7The
             three persons identified at trial as kicking and stomping on Daughenbaugh
included Williams, who was Tyler’s half-brother. Williams arrived at the party with
Tyler and also left with him.
                                            16

purpose or design to do physical harm to another that exists before the

act is committed.’ ” State v. Lyman, 776 N.W.2d 865, 877 (Iowa 2010)

(quoting State v. Myers, 653 N.W.2d 574, 579 (Iowa 2002)).                       Thus, in

Myers, we found a factual basis to support a second-degree murder

guilty plea in a fatal shaken baby case based on the defendant’s

admissions that she knew “some” physical harm and “some” injury

would occur to the baby.             653 N.W.2d at 579–80; see also State v.

Baratta, 242 Iowa 1308, 1314, 49 N.W.2d 866, 870 (Iowa 1951) (“It is

evident that an assault need not be made with a deadly weapon before

malice can be inferred.”).         There was sufficient evidence from which a

jury could infer that Tyler intended others to assault Daughenbaugh and

thus, that Tyler had the required mental state of malice aforethought. 8

       C.    Joint Criminal Conduct.               Lastly, we consider the State’s

theory of joint criminal conduct.            Joint criminal conduct is defined as

follows:

             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 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.
Iowa Code § 703.2.
       Joint criminal conduct “contemplates two acts—the crime the joint

actor has knowingly participated in, and a second or resulting crime that

is unplanned but could reasonably be expected to occur in furtherance of

       8Furthermore,     the district court’s instruction, to which Tyler did not object,
defined “malice aforethought” consistent with the foregoing caselaw: “ ‘Malice
aforethought’ is a fixed purpose or design to do some physical harm to another which
exists before the act is committed.” It is settled law that the instructions, if not objected
to, become the law of the case. See State v. Merrett, 842 N.W.2d 266, 275 (Iowa 2014).
                                        17

the first one.” State v. Rodriguez, 804 N.W.2d 844, 852 (Iowa 2011). In

Rodriguez, we found that a guilty plea to vehicular homicide was

factually supported on a joint criminal conduct theory. Id. at 853. In

that case, the defendant was not the driver; however, the defendant was

a passenger who had participated in a gas theft by actually pumping the

unpaid-for gas. Id. at 846. The homicide then occurred when the driver

left the gas station at a reckless rate of speed. Id. We concluded that the

defendant had jointly participated in the first crime—i.e., the gas theft—

and the vehicular homicide was a reasonably foreseeable consequence of

the quick escape from the scene of the crime that was in furtherance of

the original crime. Id. at 853.

       The court of appeals found that even when the facts are viewed in

the light most favorable to the State, Tyler could not have reasonably

foreseen that a subsequent beating would occur in furtherance of his

initial blow to Daughenbaugh. For reasons we have already discussed,

we respectfully disagree.         However, we think there is a different

evidentiary hole in the State’s joint criminal conduct theory.              As we

discussed in State v. Smith, 739 N.W.2d 289, 293 (Iowa 2007), our older

caselaw on joint criminal conduct “blurred the line between the

commission of a crime by means of aiding and abetting and joint

criminal conduct.” 9 It is now clear that there must be a joint crime in

which the defendant participates, followed by a second crime that may

have been unplanned but involved reasonably foreseeable conduct in

furtherance of the first crime. Rodriguez is a good example of this.


       9The  problem in Smith is not present here. In that case, there were not two
separate crimes, just one—the shooting of the deputy by the cooccupant of Smith’s
vehicle. See Smith, 739 N.W.2d at 294. Smith handed the gun to him but did not shoot
at the deputy himself. Id. at 291.
                                    18

       Here the evidence could allow a reasonable jury to find two

crimes—i.e., two separate assaults. But the problem is that the jury also

had to have found Tyler acted in concert when he committed the first

crime, namely, his assault on Daughenbaugh. Although the question is

close, we think this requires too much speculation given this record. A

jury would have to find there was a plan in place among Tyler and

others, such as Williams, Russell, and Shorter, to fight Daughenbaugh at

the time Tyler struck the first blow.       While the fact that a crowd

surrounded Daughenbaugh might be some evidence of such a plan, it is

not substantial evidence.

       The State analogizes the present case to State v. Hohle, 510 N.W.2d

847 (Iowa 1994), but that is one of those older cases whose vitality has

been called into question by Smith. In Hohle, the defendant committed

an assault individually against Lumbard and then was involved in a

follow-up joint assault against Lumbard and Gourdie in which Gourdie

was injured.   Id. at 848.   The State prosecuted both assaults and the

defendant was convicted of both.      Id.   The defendant challenged the

district court’s giving of a joint criminal conduct instruction regarding

the Gourdie assault. Id. In finding that the jury was properly instructed,

we emphasized that the second assault was a joint crime, without

addressing whether the first assault was a joint crime. See id. at 849.

However, under our more recent cases like Smith and Rodriguez, the first

crime must be a joint one to support a joint criminal conduct theory and

to prevent that theory from simply swallowing aiding and abetting

liability.

       At oral argument before us, the State offered a different wrinkle to

sustain its joint criminal conduct theory.     The State asserted that a

group decision to surround Daughenbaugh, which would have put
                                            19

Daughenbaugh          in   fear   of    immediate,      painful     physical     contact,

constituted the first assault and therefore the first crime. See Iowa Code

§ 708.1(2) (defining assault). There are a couple of problems with this

formulation of joint criminal conduct. For one thing, we doubt that our

unit-of-prosecution precedents allow it. We question whether putting a

victim in fear of being hit can be treated as a separate assault from the

act of hitting that same victim shortly thereafter. See State v. Velez, 829

N.W.2d 572, 579–84 (Iowa 2013) (discussing whether a factual basis

existed for two separate counts under Iowa Code section 708.4(1)). This

would effectively transform many, if not most, assault cases into double-

assault cases. See id. at 588 (Wiggins, J., dissenting) (cautioning against

“convicting on voluminous and stacked charges”).                      In addition, the

State’s oral argument theory was not presented at trial. 10

       D.      The Need for a New Trial.              Having found that the joint

criminal conduct theory was not supported by the evidence and should

not have been submitted to the jury, we must reverse Tyler’s conviction

and remand for a new trial. As in Smith, “we have no way of knowing


       10The State gave the following explanation of joint criminal conduct to the jury in
closing argument:
               Instruction Number 21 is what is commonly referred to as joint
       criminal conduct, and what that contemplates is that an individual in
       Mr. Tyler’s position, the defendant, committed a crime, assault, attacking
       Mr. Daughenbaugh, striking him in the head, and that he and/or others
       committed what could arguably be viewed as a second crime, in this case
       murder, the stomping, kicking, and jumping on Mr. Daughenbaugh, and
       that the defendant, Mr. Tyler, could have reasonably expected this
       different crime to have occurred and have been committed in furtherance
       of his assault.
        Tyler responded in his closing argument that the first assault could not
be the basis for joint criminal conduct because “there is no evidence that that
first assault . . . involved anyone other than Kent Tyler.” Based on our review of
the record, the jury never considered the possibility that the forming of the circle
around Daughenbaugh constituted an assault.
                                     20

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

and abettor, or under the theory of joint criminal conduct.”        See 739

N.W.2d at 295 (reversing for a new trial where the joint criminal conduct

theory should not have been submitted).

      The State cites to Griffin v. United States, 502 U.S. 46, 56, 112

S. Ct. 466, 472, 116 L. Ed. 2d 371, 380 (1991), for the proposition that a

general verdict need not be reversed “because one of the possible bases of

conviction was . . . unsupported by sufficient evidence.”        The Court

explained,

      Jurors are not generally equipped to determine whether a
      particular theory of conviction submitted to them is contrary to
      law—whether, for example, the action in question is protected by
      the Constitution, is time barred, or fails to come within the
      statutory definition of the crime. When, therefore, jurors have
      been left the option of relying upon a legally inadequate theory,
      there is no reason to think that their own intelligence and expertise
      will save them from that error. Quite the opposite is true, however,
      when they have been left the option of relying upon a factually
      inadequate theory, since jurors are well equipped to analyze the
      evidence . . . .

Id. at 59, 112 S. Ct. at 474, 116 L. Ed. 2d at 382–83.

      Griffin of course is binding on us to the extent it describes a federal

due process minimum. However, the Griffin Court also stated that “if the
evidence is insufficient to support an alternative legal theory of liability,

it would generally be preferable for the court to give an instruction

removing that theory from the jury’s consideration.” Id. at 60, 112 S. Ct.

at 474, 116 L. Ed. 2d at 383.        And, as a matter of sound judicial

administration, we have decided to go in a different direction in Iowa. In

State v. Hogrefe, 557 N.W.2d 871, 881 (Iowa 1996), we reversed for a new

trial when the jury returned a general verdict and not all the theories

were supported by substantial evidence. We explained,
                                            21
              What we have then is a marshalling instruction that
       allows the jury to consider three theories of culpability, only
       one . . . of which is supported by the evidence. With a
       general verdict of guilty, we have no way of determining
       which theory the jury accepted.          Because there was
       insufficient evidence to support an instruction to consider all
       the checks, the district court erred in giving the marshalling
       instruction.

Id.; see also State v. Thorndike, 860 N.W.2d 316, 321 (Iowa 2015)

(collecting cases).       This is our precedent and we see no reason to

overturn it. 11
       IV. Admission of B.B.’s Testimony Regarding Fighting.

       Because this issue can be expected to come up on retrial, we

address Tyler’s argument that the district court should not have

admitted B.B.’s testimony on Tyler’s prior involvement in fighting in

concert with Williams, Russell, and Shorter. 12               When Tyler objected to

this testimony, the court held a hearing outside the presence of the jury.

An offer of proof took place during which B.B. was examined and cross-


       11We  are not alone. Notwithstanding Griffin, supreme courts in a number of
other states have declined to affirm general verdicts of guilt where at least one of the
theories given to the jury was not supported by sufficient evidence. See, e.g., State v.
Jones, 29 P.3d 351, 373 (Haw. 2001); State v. Owen, No. 102,814, 2015 WL 1309978,
at *5–6 (Kan. Mar. 13, 2015); Commonwealth v. Plunkett, 664 N.E.2d 833, 837 (Mass.
1996); State v. Adams, ___ N.E.3d ___, ___, No. 2011–1978, 2015 WL 5728458, at *45
(Ohio, Oct. 1, 2015) (“Ohio is far from an outlier in rejecting Griffin.”); Ullery v. State,
988 P.2d 332, 348 n.48 (Okla. Crim. App. 1999); State v. Ortega-Martinez, 881 P.2d
231, 235 (Wash. 1994). But see Adams, ___ N.E.3d at ___, 2015 WL 5728458, at *50
(O’Donnell, J., concurring in part and dissenting in part) (citing examples of state
supreme courts that follow Griffin).
       12In  the offer of proof, B.B. testified she had seen Tyler, Williams, Russell, and
Shorter hang out together and had seen Tyler and Williams fight people and Russell
and Shorter fight people, but not all four of them fight at once. According to B.B.’s offer
of proof testimony, the incident that she witnessed involving Tyler and his half-brother
Williams occurred in the summer of 2013, shortly before Daughenbaugh was killed.
Before the jury, B.B. simply testified that when she saw the group including Tyler,
Williams, Russell, and Shorter surround Daughenbaugh, she wanted “to get out of
there” because she had seen these people engage in fighting before and “didn’t want to
be a part of it.” We believe any differences in the offer of proof record and the trial
record are not material to our evaluation of the district court’s evidentiary ruling.
                                    22

examined. B.B. was asked to leave the courtroom and the district court

asked Tyler to argue his objection and the State to argue its theory of

admissibility. Thereafter, the district court found as follows:

            Well, under any of the three theories of the
      prosecution, the State has the burden to prove the
      knowledge and intent of the defendant, and knowledge is
      particularly important under the theory of aiding and
      abetting and joint criminal conduct. The State has the
      burden to prove under the facts of this particular case that
      not only did the defendant strike the first blow but he knew
      or could reasonably expect that the first blow would be
      followed by assaults of his accomplices.

             The witness who was present observing all of this
      knew based on her prior experience with this defendant and
      his brother, Leprese [Williams], just that same summer at a
      similar party under similar circumstances that there was
      going to be a fight based on what she was observing. That is
      very strong evidence, it seems to me, that the defendant
      himself knew or could reasonably expect that by confronting
      this person who turned out to be the victim and allegedly, at
      least at this point, striking the first blow that a fight was
      going to follow. A person intends the natural consequences
      of their act.

             So the evidence in my mind at least is highly probative
      of the defendant’s knowledge and intent. The evidence is not
      being offered to show that the defendant has a bad character
      and acted in conformity therewith on this particular
      occasion. The evidence is being offered to show proof of
      motive, opportunity, intent, preparation, plan, knowledge,
      identity, and absence of mistake or accident, and that is
      allowed under rule 404(b).

            There is a question whether the probative value of this
      evidence would be substantially outweighed by the danger of
      unfair prejudice to the defendant or confusion of the issues
      or misleading the jury or by considerations of undue delay or
      waste of time or the needless presentation of cumulative
      evidence under Rule 5.403. But performing that balance,
      the Court thinks that the—or finds that the substantial
      probative value of this evidence on an essential element of
      the charge is not substantially outweighed by the danger of
      unfair prejudice or the other considerations of the rule.

            This evidence is available to the State. There is a
      witness who was present at the scene of the crime who had
      knowledge and a feeling that something like this was going
                                           23
       to happen, and it did. If she knew that based on what she
       knew of this defendant, one could reasonably infer that the
       defendant knew it too. And so I believe this evidence is
       relevant under the rules and it is admissible, and the
       objections will be overruled.

       The district court did not abuse its discretion in this thorough and

comprehensive ruling. Because the ruling is largely self-explanatory and

consistent with our caselaw, 13 we add only a few observations. First, the
evidence that Tyler struck Daughenbaugh first with a blow to the head

was fairly strong, and the evidence that others in the surrounding crowd

then stomped and kicked him to death was also fairly strong. Thus, it is

less likely that this evidence would have served, or needed to serve, an

improper “propensity” purpose—i.e., because Tyler fought before, he was

fighting that night. At the same time, the State’s evidence was not as

strong concerning the foreseeability to Tyler of others beating on

Daughenbaugh once Tyler hit him.                B.B.’s testimony helped shore up


       13As   we have said,
       To be admissible, the prosecutor must articulate a noncharacter theory
       of relevance. The court then must determine whether the other crimes,
       wrongs, or acts evidence is relevant and material to a legitimate issue in
       the case, other than a general propensity to commit wrongful acts. If the
       court determines the evidence is relevant to a legitimate issue in dispute,
       the court must determine whether the probative value of the other
       crimes, wrongs, or acts evidence is substantially outweighed by the
       danger of unfair prejudice to the defendant. In determining whether the
       probative value of other crimes, wrongs, or acts evidence is substantially
       outweighed by the danger of unfair prejudice, the court should consider
                the need for the evidence in light of the issues and the
                other evidence available to the prosecution, whether there
                is clear proof the defendant committed the prior bad acts,
                the strength or weakness of the evidence on the relevant
                issue, and the degree to which the fact finder will be
                prompted to decide the case on an improper basis.
       If the evidence’s probative value is substantially outweighed by its unfair
       prejudice, it must be excluded.
State v. Nelson, 791 N.W.2d 414, 425 (Iowa 2010) (citations omitted) (quoting State v.
Taylor, 689 N.W.2d 116, 124 (Iowa 2004)).
                                     24

that area of the State’s case. This is one legitimate use of other “bad

acts” evidence—to prove the defendant’s knowledge and intent. See Iowa

R. Evid. 5.404(b); State v. Nelson, 791 N.W.2d 414, 425 (Iowa 2010). We

affirm the district court on this point.

      V. Conclusion.

      For the foregoing reasons, we vacate the decision of the court of

appeals. We reverse Tyler’s conviction and sentence and remand for a

new trial in accordance with this opinion.

      DECISION OF COURT OF APPEALS VACATED; DISTRICT

COURT JUDGMENT AFFIRMED IN PART AND REVERSED IN PART

AND CASE REMANDED.
