               IN THE SUPREME COURT OF IOWA
                             No. 64 / 07-0776

                            Filed May 23, 2008


STATE OF IOWA,

      Appellant,

vs.

NICHOLAS ANTHONY TONELLI, JODY
GEORGE, and STEPHEN NOLTE,

      Appellees.


      Appeal from the Iowa District Court for Story County, Thomas R.

Hronek, Judge.



      State appeals district court ruling which limited the coconspirator

hearsay exclusion to the definition of criminal conspiracy. REVERSED

AND REMANDED.



      Thomas J. Miller, Attorney General, Karen Doland, Assistant

Attorney General, Stephen Holmes, County Attorney, and Timothy Meals
and Mary Howell Sirna, Assistant County Attorneys, for appellant.



      Christine R. Keenan of Feilmeyer, Feilmeyer, Keenan, Forbes &

Fultz, P.L.C., Ames, for appellee Tonelli.

      Joseph R. Cahill of Cahill Law Offices, Nevada, for appellee George.

      Daniel J. Gonnerman, Ames, for appellee Nolte.
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APPEL, Justice.

      In this case, we must decide whether the term “conspiracy,” as

used in the Iowa Rules of Evidence to allow for the admission of

statements by coconspirators, is limited by the definition of criminal

“conspiracy” found in the Iowa criminal code.        We hold that while the

crime of “conspiracy” arises under Iowa law only with respect to

agreements to perform acts amounting to aggravated misdemeanors or
felonies,   the   evidentiary   rule   may   be   applied   more   broadly   to

combinations or agreements to accomplish a criminal or unlawful act, or

to do a lawful act in an unlawful manner.

      I. Factual and Procedural Background.

      The State asserts that in late 2005, defendants Nicholas Anthony

Tonelli, Jody George, and Stephen Nolte lived together in an apartment

in Ames, Iowa, near Iowa State University. According to the minutes of

testimony, the three men and two of their friends, Anthony Galante and

Kelly Campbell, planned a December 2 house party. The State maintains

that Tonelli, George, and Nolte participated in the planning of the party

by putting an invitation on an internet site, Facebook, by purchasing two

kegs of beer and other alcohol, by making “Jell-O” shots, and by making
arrangements to collect money at the door and split the proceeds.

      The State plans to show that the men knew there were numerous

people at the party who were under the legal age to drink alcohol and

that they had reasonable cause to believe they were serving alcohol to

minors.     One of the underaged guests was twenty-year-old Shanda

Munn. After leaving the defendants’ party, Munn drove home and killed

Kelly Laughery by striking Laughery with her vehicle.

      Based on these asserted facts, the State charged Tonelli, George,

and Nolte with providing alcohol to a person under the legal age in
                                      3

violation of Iowa Code sections 123.47(1) and 123.47(6) (2005).         Iowa

Code section 123.47(1) prohibits the serving of alcoholic beverages to

minors and is a serious misdemeanor.         Iowa Code § 123.47(4).     Iowa

Code section 123.47(6) provides that any person of legal age who

supplies alcoholic beverages to a minor which results in the death of any

person is guilty of a class “D” felony. Id. § 123.47(6).

      During a pretrial hearing on a motion to sever the trials, the State
indicated that it intended to offer the testimony of coconspirators Galante

and Campbell into evidence pursuant to Iowa Rule of Evidence

5.801(d)(2)(E).   This rule of evidence provides, in relevant part:     “The

following statements are not hearsay: . . . a statement by a conspirator of

a party during the course and in furtherance of the conspiracy.” Iowa R.

Evid. 5.801(d)(2)(E).

      In response, counsel for Tonelli asserted that the term “conspiracy”

in Iowa Rule of Evidence 5.801(d)(2)(E) was limited by the definition of

criminal “conspiracy” contained in Iowa Code section 706.1. Iowa Code

section 706.1 provides, in relevant part:

      A person commits conspiracy with another if, with intent to
      promote or facilitate the commission of a crime which is an
      aggravated misdemeanor or felony, the person does either of
      the following. . . .

Iowa Code § 706.1. Tonelli’s counsel claimed the rule applied only where

there was a conspiracy to commit an aggravated misdemeanor or felony

and that her client conspired only to do something entirely legal, namely

plan a party. When the court asked whether it was possible to have a

conspiracy in Iowa without establishing “the elements set out in the

code,” Nolte’s trial counsel responded “I do not believe so. . . .” The court

did not enter a ruling on the issue at the hearing on the motion to sever.
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      In light of the colloquy at the hearing, the State filed a motion for

adjudication of a law point. The State’s application asserted for purposes

of Iowa Rule of Evidence 5.801(d)(2)(E), conspiracy should be broadly

defined to include “a combination or agreement between two or more

persons to accomplish a criminal or unlawful act, or to do a lawful act in

an unlawful manner.” State v. Ross, 573 N.W.2d 906, 914 (Iowa 1998).

In the alternative, even if “conspiracy” under Iowa Rule of Evidence
5.801(d)(2)(E) required an aggravated misdemeanor or felony, the State

asserted that because the charge of providing alcohol resulting in death

is a felony, the statements of coconspirators would be fully admissible.

The defendants, conversely, argued that at most they conspired to supply

alcohol to underaged persons, a serious misdemeanor, making the

evidentiary rule inapplicable.

      At the hearing, no party offered evidence; the hearing proceeded

solely with legal argument. The district court ruled that “conspiracy” for

purposes of the admission of evidence pursuant to Iowa Rule of Evidence

5.801(d)(2)(E) may be established only with evidence that the declarant

was involved in a conspiracy to commit a crime which was an aggravated

misdemeanor or felony as required by Iowa Code section 706.1.
      In light of the adverse ruling of the district court, the State filed an

application for discretionary review, which we granted.

      II. Standard of Review.

      This court reviews a district court ruling on a motion for

adjudication of a law point for correction of errors at law. Iowa R. App. P.

4; State v. Olsen, 482 N.W.2d 452, 455 (Iowa Ct. App. 1992).
                                     5

      III. Discussion.

      This court is confronted solely with legal questions surrounding

the proper interpretation of Iowa Rule of Evidence 5.801(d)(2)(E), which

were presented in the motion to adjudicate a law point.

      We note at the outset that a party does not need to be charged with

the crime of conspiracy for Iowa Rule of Evidence 5.801(d)(2)(E) to apply.

More than thirty years ago in State v. Lain, 246 N.W.2d 238 (Iowa 1976),
this court noted that the mere fact that a conspiracy charge was not

present “was immaterial to the admissibility of [a coconspirator’s]

statements.” Lain, 246 N.W.2d at 240. This approach is consistent with

the majority of jurisdictions. See generally Instruction or Evidence as to

Conspiracy Where There is No Charge of Conspiracy in Indictment or

Information, 66 A.L.R. 1311 (Supp. 2008).

      On the question of what constitutes a “conspiracy” sufficient to

trigger Iowa Rule of Evidence 5.801(d)(2)(E) or its predecessors, this court

has articulated varying formulations without a clear definition. In 1976,

this court noted in Lain that “[w]e are dealing at this point, of course,

with proof of a conspiracy to establish admissibility of declarations, not

with proof of a conspiracy. . . .” Lain, 246 N.W.2d at 240. While in In re
Matter of Scott, 508 N.W.2d 653, 655 (Iowa 1993), the court indicated

that the evidentiary definition of conspiracy was “guided” by the criminal

definition. The issue in that case, however, related to the existence of a

plan or agreement, not whether the underlying goal of the conspiracy

was sufficiently unlawful to trigger the hearsay exception.      Scott, 508

N.W.2d at 655. In the more recent case of Ross, this court adopted a

broad definition of conspiracy in the evidentiary context—“a combination

or agreement between two or more persons to do or accomplish a

criminal or unlawful act, or to do a lawful act in an unlawful manner.”
                                     6

Ross, 573 N.W.2d at 914. No Iowa case has specifically addressed the

question of whether the evidentiary rule applies only where the

conspiracy upon which the admission of the statements is based is to

accomplish an aggravated misdemeanor or felony.

      Iowa, however, has recognized a cause of action for civil

conspiracy. Basic Chems., Inc. v. Benson, 251 N.W.2d 220, 233 (Iowa

1977). In order to state a claim for civil conspiracy, it is not necessary
that the underlying conduct amount to an aggravated misdemeanor or

felony, or even be criminal at all, but only that it be for an unlawful

purpose or use unlawful means. Id. The teaching of cases from other

jurisdictions and legal commentators is that the rule of evidence

regarding statements of coconspirators applies in civil as well as criminal

settings. See, e.g., Earle v. Benoit, 850 F.2d 836, 841 n.6 (1st Cir. 1988);

James R. Snyder Co., Inc. v. Associated Gen. Contractors of Am., Detroit

Chapter, Inc., 677 F.2d 1111, 1117 (6th Cir.), cert. denied, 459 U.S.

1015, 103 S. Ct. 374, 74 L. Ed. 2d 508 (1982); State v. Cornell, 842 P.2d

394, 397 n.9 (Ore. 1992); Danny L. Davis Contractors, Inc. v. Hobbs, 157

S.W.3d 414, 419 (Tenn. Ct. App. 2004); 2 McCormick on Evidence § 259,

at 160 (5th ed. 1999) (“The evidence is similarly admissible in civil cases,
where the conspiracy rule applies to tortfeasors acting in concert.”);

Thomas J. Leach, Civil Conspiracy: What’s the Use? 54 U. Miami L. Rev.

1, 12–13 (1999) (noting that the hearsay rule in Federal Rule of Evidence

801(d)(2)(E) applies equally to civil and criminal conspiracies). If the rule

applies in civil cases where there is no underlying criminal misconduct at

all, it logically follows that the rule applies in criminal cases where the

unlawful conduct falls short of an aggravated misdemeanor or felony.

      Furthermore, in construing the admissibility of coconspirator

statements under Federal Rule of Evidence 801(d)(2)(E), the federal
                                    7

courts have distinguished between the concept of conspiracy for

purposes of the rule of evidence and the substantive elements of

conspiracy under criminal law. For example, in United States v. Gil, 604

F.2d 546, 549 (7th Cir. 1979), the court emphasized the distinction

between criminal conspiracy and the coconspirator exclusion to the

hearsay rule. Gil noted that while criminal conspiracy involves elements

more than a mere joint enterprise, the coconspirator exclusion to the
hearsay rule is based upon concepts of agency law, may be applied in

both criminal and civil cases, and is based on:
      “the common sense appreciation that a person who has
      authorized another to speak or to act to some joint end will
      be held responsible for what is later said or done by his
      agent, whether in his presence or not.”
Gil, 604 F.2d at 549 (quoting United States v. Trowery, 542 F.2d 623, 626

(3d Cir. 1976)).

      The court further noted:

      The substantive criminal law of conspiracy, though it
      obviously overlaps in many areas, simply has no application
      to this evidentiary principle. Thus, once the existence of a
      joint venture for an illegal purpose, or for a legal purpose
      using illegal means, and a statement made in the course of
      and in furtherance of that venture have been demonstrated
      by a preponderance of evidence, it makes no difference
      whether the declarant or any other “partner in crime” could
      actually be tried, convicted and punished for the crime of
      conspiracy.

Id. at 549–50; see also Government of Virgin Islands v. Brathwaite, 782

F.2d 399, 403 (3d Cir. 1986) (“The independent evidence must

demonstrate only that a conspiracy or joint undertaking existed; it need

not show that the combination of individuals including the defendant or

defendants was ‘criminal or otherwise unlawful.’ ” (Citations omitted.));

United States v. Saimiento-Rozo, 676 F.2d 146, 149 (5th Cir. 1982) (“Nor
                                        8

need the conspiracy or agreement be criminal in nature; it may be in the

form of a joint venture.”).

      The language in Iowa Rule of Evidence 5.801(d)(2)(E) is identical to

Federal Rule of Evidence 801(d)(2)(E).      While the federal cases are not

determinative on questions of state law, we often cite them as persuasive

authority regarding the interpretation of an identical Iowa Rule of

Evidence. Matter of Property Seized from DeCamp, 511 N.W.2d 616, 621
(Iowa 1994); State v. Florie, 411 N.W.2d 689, 695 (Iowa 1987).

      After review of the above authorities, we are convinced that the

definition of “conspiracy” for purposes of Iowa Rule of Evidence

5.801(d)(2)(E)   is   distinguishable   from   the   definition   of   criminal

conspiracy under Iowa Code section 706.1. There is no requirement that

the underlying conduct amount to an aggravated misdemeanor or felony

for the evidentiary rule to apply.

      There is a remaining question, however, regarding whether Iowa

Rule of Evidence 5.801(d)(2)(E) may be applied to an agreement or joint

enterprise where the underlying goal and means used to accomplish the

goal are not illegal. The defendants claim there can be no conspiracy to

plan a party because the mere planning of a party and sending of
invitations are lawful acts and means.

      The point is subject to dispute.         According to at least one

commentator, the term conspiracy as used in the rule of evidence does

not depend upon a goal to promote a crime or civil wrong. Christopher

B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 8:59, at 478 n.4

(3d ed. 2007) (citing United States v. Gewin, 471 F.3d 197, 201 (D.C. Cir.

2006)) (stating exception applies even if venture is lawful).            Other

authorities suggest that the common understanding of the term

“conspiracy” necessarily involves unlawful conduct.          See Clifford S.
                                     9

Fishman, Jones on Evidence § 27:48, at 566 (7th ed. 1992) (“The essence

of a conspiracy is an actual agreement to engage in unlawful conduct.”).

      A review of Iowa case law reveals that the term “conspiracy” has

generally been used in the context of unlawful conduct, whether civil or

criminal. More than fifty years ago, this court in State v. Schenk, 236

Iowa 178, 18 N.W.2d 169 (1945), quoted with approval a Kentucky case

which stated that “ ‘the broad definition or description everywhere
accepted is that conspiracy is a combination between two or more

persons to do or accomplish a criminal or unlawful act, or to do a lawful

act by criminal or unlawful means.’ ”      Schenk, 236 Iowa at 183, 18

N.W.2d at 172 (quoting Commonwealth v. Donoghue, 63 S.W.2d 3, 5 (Ky.

1933)); accord Ross, 573 N.W.2d at 914; State v. Blyth, 226 N.W.2d 250,

263 (Iowa 1975). Furthermore, in common usage, the term conspiracy

implies unlawful conduct of some kind and not innocent undertakings.

See Webster’s Third New International Dictionary 485 (unabr. ed. 2002)

(defining “conspiracy” as “an agreement . . . to do an unlawful act or use

unlawful means to do an act which is lawful”); Black’s Law Dictionary

329 (8th ed. 2004) (defining “conspiracy” as “[a]n agreement by two or

more persons to commit an unlawful act . . .”). As a result, we conclude
that Iowa Rule of Evidence 5.801(d)(2)(E) may be applied where there is

evidence of a conspiracy to accomplish a criminal or unlawful act, or to

do a lawful act in an unlawful manner, but not to combinations or

agreements in furtherance of entirely lawful goals advanced by lawful

means.

      Today we decide only the legal question raised by the motion to

adjudicate a law point. We do not decide the application of the law, as

explained in this opinion, to the facts of this case. Prior to the admission

of hearsay evidence under Iowa Rule of Evidence 5.801(d)(2)(E) in this or
                                   10

any other case, the trial court must make a preliminary finding, by a

preponderance of evidence, that there was a conspiracy, that both the

declarant and the party against whom the statement is offered were

members of the conspiracy, and that the statements were made in the

course and in furtherance of the conspiracy. State v. Tangie, 616 N.W.2d

564, 569 (Iowa 2000).

      IV. Conclusion.
      The trial court holding that the State must show a conspiracy to

commit an aggravated misdemeanor or felony in order to invoke Iowa

Rule of Evidence 5.801(d)(2)(E) is reversed. The case is remanded to the

district court.

      REVERSED AND REMANDED.

      All justices concur except Baker, J., who takes no part.
