                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-0592
                               Filed June 20, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

CHRISTOPHER YENGER,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Wapello County, Joel D. Yates,

Judge.



      Christopher Yenger appeals his convictions for two counts of first-degree

murder following a jury trial. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Mary K. Conroy, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney

General, for appellee.



      Heard by Vaitheswaran, P.J., and Doyle and Tabor, JJ.
                                           2


VAITHESWARAN, Presiding Judge.

       A fire set in a home north of Ottumwa resulted in the death of two occupants.

An investigation turned up no solid leads until a decade later. At that time, the

State charged Christopher Yenger with two counts of first-degree murder. A jury

found him guilty as charged. On appeal, Yenger contends (1) the State presented

insufficient evidence to corroborate accomplice testimony, (2) his trial attorney was

ineffective in failing to challenge certain jury instructions, and (3) the district court

provided inadequate reasons for denying his post-trial motions.

I.     Corroboration of Accomplice Testimony

       Iowa Rule of Criminal Procedure 2.21(3) requires the corroboration of

accomplice testimony:

       A conviction cannot be had upon the testimony of an accomplice or
       a solicited person, unless corroborated by other evidence which shall
       tend to connect the defendant with the commission of the offense;
       and the corroboration is not sufficient if it merely shows the
       commission of the offense or the circumstances thereof.

The district court designated one man—Zachary Dye—an accomplice as a matter

of law. See State v. Douglas, 675 N.W.2d 567, 571 (Iowa 2004) (“When the facts

and circumstances are undisputed and permit only one inference, whether a

witness is an accomplice is a question of law for the court.”). The court instructed

the jurors they could also find a second man—Kyle Jameson—an accomplice.

See id. (“In view of the contrary inferences that could be drawn from the evidence,

it was for the jury to choose which inferences were warranted under the testimony

given at trial.”). However, the court did not give the jurors a special interrogatory

asking whether they found Jameson to be an accomplice.
                                         3


       Both men testified for the State and implicated Yenger. Yenger moved for

judgment of acquittal on the ground the State failed to present sufficient evidence

to corroborate their testimony. The court denied the motion.

       On appeal, Yenger argues Jameson, too, was an accomplice and,

accordingly, his testimony could not be used to corroborate the testimony of Dye.

See id. at 572 (stating “the testimony of one accomplice may not corroborate the

testimony of another accomplice”). The State responds that, even if Jameson was

an accomplice, foreclosing reliance on his testimony as corroborative of Dye’s

testimony, there was ample independent evidence to corroborate both their stories.

In addressing this question, we note, “Corroborative evidence need not be strong

as long as it can fairly be said that it tends to connect the accused with the

commission of the crime and supports the credibility of the accomplice[s].” State

v. Barnes, 791 N.W.2 817, 824 (Iowa 2010) (quoting State v. Berney, 378 N.W.2d

915, 918 (Iowa 1985)).

       Dye testified he, Jameson, and Yenger went to a party. Yenger got into a

fight, was head-butted by a man, and ended up with a bleeding, swollen nose. The

trio was asked to leave the party. On their way to Dye’s apartment, Yenger said

that “something had to be done.” He was “pissed off” and “said he wanted to catch

the house on fire.” The three decided to return to the party “[t]o set the house on

fire.” On the way, they stopped at a gas station. Yenger got out and “filled a beer

bottle full of gasoline.” He “stuffed a paper towel or napkins in the top of the beer

bottle” to “mak[e] a Molotov cocktail,” which Dye described as “kind of a gas bomb.”

Dye and Yenger got out of the vehicle. When they got “right in front of the house,”

Yenger lit the paper towel in the beer bottle and “threw it at the house.” Dye heard
                                          4


“glass breaking” and saw “the house light up” and “flames go up.” They “ran as

fast as [they] could back to the vehicle.” They turned and found “the house was

fully in a blaze.”

       The following morning, the three learned the house burned down and two

people died. Dye and Yenger decided to concoct a story that they “went to the

party,” “[t]here was a fight,” they “got back in the car,” they “[w]ent to [Dye’s]

apartment,” and they “all passed out.” Yenger later told Dye “to stick to the script”

and “don’t talk about it.” After Dye was jailed, he received a note from Yenger

stating “we have this thing beat” and “stick to the script.”

       Jameson similarly testified to their attendance at the party. When they were

leaving, he said he heard Yenger “arguing with a guy.” Yenger got into the back

seat of the car and “was kind of holding . . . his face or his mouth.” Yenger said,

“[H]e was going to get them back or something.” On the way to Dye’s apartment,

Yenger “said something about going back and setting the house on fire.” When

they arrived at the apartment, Yenger got out and, “a couple minutes” later, Yenger

“showed back up to the vehicle and he had a gas can.” The three returned to the

party. Yenger got out of the car with the gas can. He went up to the house and

tried “to set a tree on fire.” Jameson “kept seeing kind of little poofs of fire shoot

up and then go back down.” He twice saw “a bright ball of fire.” Yenger ran back

to the car and they took off. The next morning, after learning what happened,

Yenger told Jameson “if anyone asked, to tell them we just went out to the party

and was drinking and went home and passed out.” In an interview, Jameson

conveyed the concocted story to law enforcement officers. Later, he “started

feeling really bad” and, in a second interview, he told the officers “the whole story.”
                                          5


When he was confronted with pictures of the crime scene and saw that there were

no trees next to the house, he told an officer he believed Yenger “poured gas on

the house and lit it on fire.”

       There were certainly discrepancies between Dye’s and Jameson’s versions

of events, not the least of which were the descriptions of the container holding the

gas. But both men consistently said Yenger started the fire.

       Yenger did not testify at trial. But in pretrial statements to two individuals,

he essentially admitted his involvement in the crimes. See Douglas, 675 N.W.2d

at 572 (“[A] defendant’s out-of-court confessions and admissions may corroborate

the testimony of an accomplice.”).

       Acquaintance Jeramia Gillespie testified he asked Yenger if he would “be

okay with” engaging in illegal activities. Yenger responded that, about ten years

earlier, “he was involved in a house fire that killed two boys.” Yenger explained

“he and Zach Dye were attending a party and they got into it with the people that

were there already.” They left, but returned to the party with “like a Molotov cocktail

. . . to get back at the people that made them leave.” According to Gillespie,

Yenger said he “firebombed the place where the party was at.”

       Yenger also told fellow jailhouse resident Christopher Showalter “he had

two bodies and that’s what he was there for.” He explained he was with Dye and

Jameson, and he saw “a flash of light” from the car. Yenger told Showalter, “[T]hey

say that he caught a tree on fire, and that it was wet, and that if anything, the house

caught the tree on fire.” While in jail, Showalter heard Yenger tell Dye, “Keep your

head up. Keep your stories straight. We can get through this if our stories match.”
                                          6


According to Showalter, Yenger told another resident, “[Jameson] need not make

it to court and that [the other resident] would be taken care of.”

        Yenger’s pretrial statements to Gillespie and Showalter amounted to

independent corroborative evidence of the accomplice testimony. But there was

more.

        Law enforcement officers also interviewed Yenger. Although he stuck with

the concocted story and said he “went back to the apartment and passed out” after

the party, he admitted going to the party with Dye and Jameson, getting into a fight

at the party, getting “beat up,” and being “irritated.”          These admissions

corroborated the accomplices’ testimony concerning his motive for setting the fire.

See State v. O’Callaghan, 138 N.W. 402, 405 (1912) (noting defendant did not

“deny his association with [the accomplices] . . . on the evening in question, prior

to the commission of the offense, but also at the places named by [one of the

accomplices] after the crime was committed”).

        We conclude there was sufficient independent evidence to corroborate the

testimony of Dye and Jameson. The district court did not err in denying Yenger’s

motion for judgment of acquittal.

II.     Ineffective Assistance

        Yenger claims his trial attorney was ineffective in failing to challenge three

jury instructions. To prevail, Yenger must show (1) deficient performance and (2)

prejudice. See Strickland v. Washington, 466 U.S. 668, 687 (1984). We find the

record adequate to address the issue. See State v. Ross, 845 N.W.2d 692, 697

(Iowa 2014).
                                            7


       A.      Accomplice Instruction

       The district court gave the following accomplice instruction:

              An “accomplice” is a person who knowingly and voluntarily
       cooperates or aids in the commission of a crime.
              A person cannot be convicted only by the testimony of an
       accomplice. The testimony of an accomplice must be corroborated
       by other evidence tending to connect the defendant with the crime.
              You are instructed that the Court has found that Zachary Dye
       was an accomplice and you must consider him an accomplice and
       the defendant cannot be convicted only by that testimony. If you find
       Kyle Jameson is an accomplice, the defendant cannot be convicted
       only by that testimony. There must be other evidence tending to
       connect the defendant with the commission of the crime. Such other
       evidence, if any, is not enough if it just shows a crime was committed.
       It must be evidence tending to single out the defendant as one of the
       persons who committed it.

Yenger argues, “Trial counsel should have requested and the district court should

have given an instruction informing the jury that [Dye’s and Jameson’s] testimony

could not be used to corroborate each other’s testimony.” Relatedly, he contends

“[t]he jury should have been told there must be independent corroborating

evidence connecting [him] to the crime.” His claim is premised on the assumption

the jury found Jameson to be an accomplice. See State v. Harris, 589 N.W.2d

239, 242 (Iowa 1999) (“There is no language in [what is now Iowa Rule of Criminal

Procedure 2.22(2)] mandating the submission of interrogatories in all instances in

which the conditions described in the rule exist.”).1 Because the district court did

not submit a special interrogatory asking the jury to answer this question, we do

not know whether the jury found him to be an accomplice. For purposes of this

argument, we will assume without deciding Jameson was an accomplice.


1
 In State v. Ellis, No. 09-1210, 2011 WL 944428, at *6 (Iowa Ct. App. Mar. 21, 2011), this
court stated, “[S]pecial interrogatories would have assisted this court in its appellate
review.”
                                           8


       The instruction adequately conveyed the law that “the testimony of one

accomplice may not corroborate the testimony of another accomplice.” See State

v. Barnes, 791 N.W.2d 817, 824 (Iowa 2010) (quoting State v. Douglas, 675

N.W.2d 567, 572 (Iowa 2004)).         We recognize the uniform language is not

designed for more than one accomplice. See Iowa State Bar Ass’n, Iowa Crim.

Jury Instruction No. 200.4 (2016). But the modified language of this instruction

identified Dye as one accomplice and identified Jameson as the other potential

accomplice. The instruction also stated Yenger could not “be convicted only by

the testimony of an accomplice.” It stood to reason that independent corroboration

was required for each accomplice. See State v. Horn, 282 N.W.2d 717, 731 (Iowa

1979) (finding language “sufficient to advise the jury that evidence of one or more

accomplices cannot convict a defendant unless corroborated by other evidence”);

State v. Everett, 214 N.W.2d 214, 219 (Iowa 1974) (finding district court adequately

accommodated the defendant’s request to add a statement to an accomplice

instruction indicating one accomplice could not corroborate the testimony of

another accomplice).        As discussed, the record contains independent

corroboration of the accomplice testimony. We conclude counsel did not breach

an essential duty in failing to challenge the instruction.

       B.      Arson Instruction

       The first-degree murder charges required the State to prove four elements,

including the following: (4) Yenger killed the individuals “while participating in the

crime of Arson in the First Degree.” Arson was defined for the jury in a separate

instruction.
                                           9


        Yenger argues his attorney should have challenged the arson instruction

on the ground the jury was not “instructed that the State had to prove each and all

elements of Arson in the First Degree in order to find [he] participated in the crime,

as required in the fourth element of the offense of Murder in the First Degree.”

        Yenger is correct that the arson instruction did not require proof of each

arson element. But (1) the jury was instructed to “consider all of the instructions

together,” (2) the first-degree murder instructions informed the jury the State

needed to prove “all of the elements,” and (3) one of the elements of first-degree

murder was the participation in arson as separately defined. It follows that all the

elements of arson had to be proved to find the fourth element of first-degree murder

satisfied. See State v. Liggins, 557 N.W.2d 263, 267 (Iowa 1996) (“When a single

instruction is challenged, it will be judged in context with other instructions relating

to the criminal charge, not in isolation.”). Yenger’s attorney did not breach an

essential duty in failing to challenge the arson instruction.

        C.    Prior Statements of Yenger

        The jury was instructed

                Evidence has been offered to show that the defendant made
        statements at an earlier time and place.
                If you find any of the statements were made, then you may
        consider them as part of the evidence, just as if they had been made
        at this trial.

(Emphasis added). Yenger argues the highlighted language was incorrect. In his

view,

        While the rules of evidence provide that statements of party
        opponents are admissible, the rule of evidence and the rationale
        underlying the hearsay exception provides no authority to require the
        jury to consider the statements as bearing the same weight as
        testimony received at trial, made under oath and under penalty of
                                         10


       perjury. Instead the jury should have been free to assign whatever
       weight and reliability to the statements as it saw fit.

The challenged language comes from a uniform jury instruction. See Iowa State

Bar Ass’n, Iowa Crim. Jury Instruction No. 200.44 (2016). “Normally, we are slow

to disapprove of the uniform jury instructions.” State v. Ambrose, 861 N.W.2d 550,

559 (Iowa 2015).

       We recently examined the instructional language Yenger challenges. In

State v. Payne, No. 16-1672, 2018 WL 1182624, at *8 (Iowa Ct. App. Mar. 7, 2018),

we stated, “Any relevant statements [the defendant] made out of court that [were]

inconsistent with his position at trial were . . . admissible, whether or not he

testified.” We cited Iowa Rule of Evidence 5.801(d)(2), which, in part, excludes

from the definition of hearsay “[a]n opposing party’s statement,” which “is offered

against an opposing party” and “[w]as made by the party in an individual or

representative capacity.” Id. Significantly, the rule does not require the party

opponent’s prior statement to have been made under oath. See Iowa R. Evid.

5.801(d)(2). In contrast, a declarant-witness’s prior inconsistent statement must

have been “given under penalty of perjury at a trial, hearing, or other proceeding

or in a deposition.” Iowa R. Evid. 5.801(d)(1)(A). In both instances, it is up to the

jury to decide what weight to accord those statements.

       Although the challenged instructional language does not appear in rule

5.801(d)(2), we believe it is a correct statement of the law. Contrary to Yenger’s

assertion, the language allows rather than requires the jury to consider the

statements “just as if they had been made at this trial.” The language is consistent

with other instructions, including an instruction authorizing jurors to consider prior
                                        11


unsworn inconsistent statements to assess witness credibility. The language also

is consistent with an instruction on witness credibility, which allows jurors to

consider “[w]hether a witness has made inconsistent statements” in deciding what

testimony to believe.

       Because the challenged language does not require jurors to accord the

same weight to an unsworn prior inconsistent statement as they would to trial

testimony, we conclude Yenger’s attorney breached no essential duty in failing to

object to that portion of the instruction. See Payne, 2018 WL 1182624, at *9 (“The

instruction did not direct the jury to assign the statement any particular weight or

unduly emphasize the matter, nor did it create an improper permissive inference

or presumption.”); see also State v. Hayes, No. 17-0563, 2018 WL 2722782, at *5

(Iowa Ct. App. June 6, 2018) (concluding counsel was not ineffective in failing to

challenge this instruction); State v. Wynn, No. 16-2150, 2018 WL 769272, at *3

(Iowa Ct. App. Feb. 7, 2018) (noting instruction made “no reference to a

presumption or an inference”); State v. Wineinger, No. 16-1471, 2017 WL

6027727, at *3 (Iowa Ct. App. Nov. 22, 2017) (concluding instruction was “a correct

statement of law”); State v. Tucker, No. 13-1790, 2015 WL 405970, at *3 (Iowa Ct.

App. Jan. 28, 2015) (disagreeing with assertion that the instruction was

misleading).

       D.      Cumulative Error

       Yenger argues “the cumulative effect of multiple errors may amount to

ineffective assistance.” Having found no individual errors, we decline to find

cumulative error.
                                         12


III.   Post-Trial Motions

       Yenger filed a combined motion in arrest of judgment and motion for new

trial. He asserted the evidence was insufficient “to support the jury verdict in that

the witnesses who were relied upon to corroborate the alleged accomplices’

testimony were not credible” and the verdict was “contrary to law and evidence.”

The State filed a resistance. At sentencing, the district court summarily denied the

motions for “each and every reason set forth in the State’s Resistance.” The court

also cited the standard set forth in State v. Ellis, 578 N.W.2d 655, 659 (Iowa 1998)

(adopting weight-of-the-evidence standard for consideration of new trial motions

filed under Iowa Rule of Criminal Procedure 2.24(2)(b)(6)). The State’s resistance

summarized the evidence on which the State relied, including the testimony of Dye,

Jameson, Showalter, and Gillespie.

       Yenger argues the court failed “to meaningfully consider his arguments in

the post-trial motions.” He notes the absence of any reference to “his argument

that Dye and Jameson lacked credibility” or his argument that “there was

insufficient corroboration of their testimony.” Yenger acknowledges that, in State

v. Maxwell, 743 N.W.2d 185, 193 (Iowa 2008), the Iowa Supreme Court refused to

reverse a summary denial of a new trial motion. He asks us to overrule Maxwell.

       In Maxwell, the court stated,

       In denying Maxwell’s motion, the district court must have found the
       jury’s guilty verdict was not contrary to the weight of the evidence.
       Because Maxwell’s motion raised the issue in the district court, we
       are allowed to review the record to determine whether a proper basis
       exists to affirm the district court’s denial of Maxwell’s motion for new
       trial.
                                         13


743 N.W.2d at 193. We are not at liberty to overrule this precedent, as Yenger

requests. Having reviewed the trial evidence and the merits of Yenger’s motion,2

we conclude the district court did not abuse its discretion in denying the new trial

motion. Assuming Yenger is also challenging the court’s denial of his motion in

arrest of judgment, we conclude the jury’s findings of guilt were supported by

substantial evidence.

       We affirm Yenger’s convictions for two counts of first-degree murder.

       AFFIRMED.

       Doyle, J., concurs; Tabor, J., dissents.




2
  We are unpersuaded by the State’s error-preservation concern because the issue was
raised and decided in the district court.
                                         14


TABOR, Judge. (dissenting)

       I respectfully dissent. The court instructed the jurors that if they found

Yenger made statements at an earlier time and place they were allowed to

consider those out-of-court statements as part of the evidence—“just as if they had

been made at this trial.”     This instruction misstated the law.       The majority

acknowledges the disputed language cannot be found in the rules of evidence.

And contrary to the majority’s interpretation, the instruction’s use of the term “may”

does not mean the jurors were allowed but not required to give the out-of-court

statements the same weight as sworn testimony. Rather, the instruction permitted

jurors to decide whether they believed Yenger made the statements attributed to

him by accomplices, acquaintances, or jailmates.         Once the jurors chose to

consider Yenger’s out-of-court statements as part of the evidence, the instruction

assigned his statements the same status as if he had made them under oath.

Because the flawed instruction prejudiced Yenger, I would reverse and remand for

a new trial.

       Yenger’s extrajudicial statements were not hearsay and were admissible

because the State offered them against the opposing party.             See Iowa R.

Evid. 5.801(d)(2)(A).   Admissions by a party-opponent “constitute substantive

evidence of the facts asserted but are not conclusive evidence of those facts.” See

State v. Bayles, 551 N.W.2d 600, 606 (Iowa 1996). Critically, substantive evidence

is not the same as sworn testimony. Yenger’s admissions were not made under

oath and, therefore, did not have the same binding effect on the declarant. Unless

admissions are made in open court, they will not warrant a conviction without
                                             15

sufficient corroboration.3 Iowa R. Crim. P. 2.21(4); State v. Polly, 657 N.W.2d 462,

466 n.1 (Iowa 2003). In the absence of the oath, any ability to observe the

declarant’s demeanor, and cross examination to aid in determining credibility, the

probative force of out-of-court statements differs from the probative force of

testimony. It was a mistake to instruct the jury on a false equivalency.

       As the majority notes, the disputed language comes from a stock

instruction. Iowa State Bar Ass’n, Iowa Criminal Jury Instruction 200.44 (2016). It

is true we are “reluctant to disapprove uniform instructions.” See State v. Weaver,

405 N.W.2d 852, 855 (Iowa 1987) (citing State v. Jeffries, 313 N.W.2d 508, 509

(Iowa 1981)). But uniform instructions are not “preapproved” by our supreme

court. See State v. Robinson, 859 N.W.2d 464, 490 (Iowa 2015) (Wiggins, J.,

dissenting) (asserting “we can never delegate the formulation of the law to the

instruction committee”).       In this instance, the bar association’s instruction

committee did not cite any authority for treating a criminal defendant’s unsworn

out-of-court statements as the equivalent of in-court testimony offered under oath.4




3
  As Yenger points out, the uniform instruction on confessions by a defendant does not
include a directive for the jury to consider the statements as if they had been made at trial.
See Iowa State Bar Ass'n, Iowa Criminal Jury Instruction 200.16 (2016). Rather, the jury
is told to consider various circumstances under which the confession was made before
deciding how much weight to give it. Id.
4
  This uniform instruction previously read: “Evidence has been offered to show the
Defendant made statements at an earlier time and place while not under oath. These
statements are called admissions. You may consider an admission for any purpose.” See
State v. Tejeda, 677 N.W.2d 744, 754 (Iowa 2004) (finding no prejudice from counsel’s
failure to object to that instruction where the State did not offer any admissions by Tejeda).
In reviewing the same instruction considered in Tejeda, one member of our court opined:
“This instruction dangerously infers that all statements, offered as uttered by the
defendant, implies, or arguably directs, their truth. This impeaches, surely shakes, any
contrary exculpatory evidence offered to rebut its content.” Young v. State, No. 06-0763,
2007 WL 3376830 (Iowa Ct. App. Nov. 15, 2007) (Schechtman, S.J., concurring). It
appears the instruction was revised in 2003.
                                          16


       The clear implication of the challenged instruction was that Yenger’s

extrajudicial admissions were to be given the same force and effect as if he had

uttered the words from the witness stand under the penalty of perjury. Because

the court instructed the jury with an incorrect statement of law, we presume

prejudice, unless the record affirmatively establishes no prejudice resulted. State

v. Hanes, 790 N.W.2d 545, 551 (Iowa 2010). Yenger’s out-of-court admissions

were the meat and potatoes of the State’s case; instructing the jury to view them

in the same light as sworn testimony could not be considered harmless error.

       Further, the flawed jury instruction infringed on Yenger’s Fifth Amendment

right against self-incrimination. Yenger decided not to testify; the district court

instructed the jury not to draw an inference of guilt from that decision. Yet the court

also instructed the jury that his earlier statements made outside of court could be

considered as if they were his testimony. Other jurisdictions have held the mere

fact that admitting statements by a party-opponent may motivate a defendant to

take the stand to explain them does not mean he was compelled to do so in a

manner implicating the privilege against self-incrimination. See, e.g, United States

v. Holden, 557 F.3d 698, 706 (6th Cir. 2009).         But this situation is different.

Although Yenger exercised his right not to testify, the court nevertheless instructed

the jurors that they could consider his unsworn statements as a substitute for

admissions made in open court. As a result, Yenger was effectively stripped of his

right not to testify.   I would find submitting the challenged jury instruction

constituted reversible error.
