                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-1242
                               Filed June 15, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

YARVON NATHANIEL RUSSELL,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Douglas F. Staskal,

Judge.



      Yarvon Russell appeals his judgment and sentence for second-degree

murder. REVERSED AND REMANDED.



      Mark C. Smith, State Appellate Defender, and Nan Jennisch, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Darrel Mullins, Assistant Attorney

General, for appellee.



      Heard by Danilson, C.J., and Vaitheswaran and Tabor, JJ.
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VAITHESWARAN, Judge.

       Yarvon Russell appeals his judgment and sentence for second-degree

murder. He raises a number of issues, including a challenge to the sufficiency of

the evidence supporting the jury’s finding of guilt. We find this issue requires

reversal and remand for a new trial, but we also address an evidentiary issue that

may arise on retrial.

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

elements of second-degree murder:

              1. On or about August 25, 2013, the defendant, individually
       or through joint criminal conduct or through aiding and abetting
       another, assaulted Richard Daughenbaugh.
              2. Richard Daughenbaugh died as a result of being
       assaulted.
              3. The defendant, individually or through joint criminal
       conduct or someone he aided and abetted, acted with malice
       aforethought.

Russell contends the State presented insufficient evidence to support the finding

of guilt under any of the three theories: (1) individual conduct, (2) aiding and

abetting, or (3) joint criminal conduct. “[W]e will uphold a verdict if substantial

evidence supports it.”   State v. Tyler, 873 N.W.2d 741, 746-47 (Iowa 2016)

(citations omitted).

I.     Sufficiency of the Evidence

       A.     Individual Conduct

       A reasonable juror could have found the facts as summarized in our

opinion involving codefendant James Shorter, who was jointly tried with Russell.

See State v. Shorter, No. 14-1239, 2016 WL ______, at *__ (Iowa Ct. App. June
                                          3


15, 2016). Eyewitness Monica Perkins testified, “I remember [Russell] stomping

on [Daughenbaugh].”

       Russell does not raise a serious challenge to the jury’s necessary finding

of an assault. He focuses on the causation element and argues “[t]he blows that

he allegedly delivered did not kill [Daughenbaugh].”

       As explained in Shorter, the Iowa Supreme Court discussed causation in

an opinion involving co-defendant Kent Tyler. See State v. Tyler, 873 N.W.2d

741, 747-49 (Iowa 2016). The court’s discussion is controlling here. Just as

Tyler’s punch was a factual cause of Daughenbaugh’s death, so too was

Russell’s blow. And, just as Tyler’s punch satisfied the proximate cause or scope

of liability test of causation, so too did Russell’s blow.     Substantial evidence

supported the jury’s finding of guilt against Russell as an individual actor.

       B.     Aiding and Abetting

       Russell contends he “was not an active participant in the murder as he did

not deliver the fatal blow(s) that ultimately killed [Daughenbaugh],” and “the State

offered no evidence that he planned or entered into an agreement, hatched even

that night, with the other individual(s) who actually caused the victim’s death.” A

jury could have found otherwise for the same reasons discussed in Shorter. See

Shorter, 2016 WL ______, at *__. The jury’s finding of guilt under an aiding and

abetting theory was supported by substantial evidence.

       C.     Joint Criminal Conduct

       Russell contends “there was an insufficient showing that he was acting in

concert with the other participants. . . . The blows to the victim appeared to be

inflicted spontaneously by the participants in the heat of the moment.” For the
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reasons discussed in Shorter, we find substantial evidence that Shorter, Russell,

and the others involved in the group attack acted in concert. See Shorter, 2016

WL ______, at *__.       But, we find insufficient evidence of a second crime in

furtherance of the group attack. As Russell contends, “The events happened so

quickly and there appeared to be mass confusion.” A second crime was difficult

to discern.   However, even if one could be gleaned, there was scant if any

evidence of the sequence of assaults relative to Russell’s kick. Accordingly, we

find insufficient evidence to support the jury’s finding of guilt under a joint criminal

conduct theory.

       Having found the joint criminal conduct theory unsupported by substantial

evidence, we reverse and remand for a new trial because we have no way of

knowing whether the jury found Russell guilty individually, as an aider and

abettor, or under a theory of joint criminal conduct. See Tyler, 873 N.W.2d at

753-54. In light of our disposition, we find it unnecessary to address Russell’s

ineffective-assistance-of-counsel claim.

       We will also address Russell’s evidentiary claim, as it may arise on retrial.

II.    Evidentiary Issue

       At trial, the State called a teenager to the stand and asked her a series of

questions about the events leading up to Daughenbaugh’s death.                     She

repeatedly answered, “I don’t remember.” When confronted with a transcript of

an interview she gave police, she continued to demur, stating she did not

remember talking to the officers.        She also stated she did not recall the

statements she made during Tyler’s trial.
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       The district court concluded the teenager was “unavailable” to testify and

her prior sworn statements during a deposition were admissible. See Iowa R.

Evid. 5.804(a) (defining “unavailability as a witness” to include “situations in

which the declarant: . . . Testifies to a lack of memory of the subject matter of the

declarant’s statement”); Iowa R. Evid. 5.804(b)(1) (providing that former

testimony “given as a witness at another trial or hearing of the same or a different

proceeding, or in a deposition taken in compliance with law in the course of the

same or another proceeding” is not excluded by the hearsay rule if the declarant

is unavailable as a witness). As for her statements to police, the court concluded

they would be admissible only for impeachment because they were unsworn.

See Iowa R. Evid. 5.613(b). Finally, the court concluded that questions relating

to the teenager’s “identification of a person made after perceiving the person . . .

would not be hearsay.”

       On appeal, Russell contends the State called the teenager “for the

obvious purpose of subsequently putting before the jury otherwise impermissible

hearsay evidence.” Russell relies on State v. Turecek, 456 N.W.2d 219, 224

(Iowa 1990).    There, the court stated, “The State is not entitled under [our

impeachment rule] to place a witness on the stand who is expected to give

unfavorable testimony and then, in the guise of impeachment, offer evidence

which is otherwise inadmissible.”     Turecek, 456 N.W.2d at 225.         The court

continued, “To permit such bootstrapping frustrates the intended application of

the exclusionary rules which rendered such evidence inadmissible on the State’s

case in chief.” Id.
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       That is not what happened here. The State asked the teenager pertinent

questions about the night of the murder and received non-committal responses.

The district court allowed the State to impeach the teenager with her out-of-court

statement only after the State laid this foundation. This is precisely the purpose

of our impeachment rule. See Iowa R. Evid. 5.607 (“The credibility of a witness

may be attacked by any party, including the party calling the witness.”); see also

id. advisory committee note.

       The court also allowed the detective who interviewed the teenager to

recount her identification of the people in a photograph taken on the night of

Daughenbaugh’s death. One of the people was Russell. Russell acknowledges

a prior statement by a witness is not hearsay if “[t]he declarant testifies at trial or

hearing and is subject to cross-examination concerning the statement, and the

statement is . . . one of identification of a person made after perceiving him.”

Iowa R. Evid. 5.801(d)(1)(C). He argues “this exception to the hearsay rule does

not apply because [the teenager’s] prior statements went to the underlying facts

of the crime, specifically that she saw him kicking the victim.” We disagree. The

State asked the detective whether the teenager identified a person in the picture.

He responded, “Yes.”      The State then asked, “Who did she identify that as

being?” The detective responded, “Yarvon Russell.” The questions and answers

related to identity. Because the statements were admissible to prove the truth of
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the matter asserted, there was no Turecek violation.1 See State v. Tompkins,

859 N.W.2d 631, 639 (Iowa 2015).

       REVERSED AND REMANDED.




1
  This case is distinguishable from State v. Smith, No. 13-1202, 2014 WL 7343226, at *3
(Iowa Ct. App. Dec. 24, 2014), in which this court found a victim’s subsequently recanted
out-of-court statement identifying the defendant as her attacker and offered by a police
officer “constituted hearsay” where “the State did not question [the victim] about her
identification . . . during its case in chief because of her recantation.” See also State v.
Bush, No. 09-0150, 2010 WL 4484401, at *3-5 (Iowa Ct. App. Nov. 10, 2010) (finding
Turecek violation where the State offered previously-recanted statements of witnesses).
