review from the Iowa Court of Appeals.
from the Iowa District Court for Polk County, Douglas F.
State seeks further review after the court of appeals
reversed the defendant's conviction based on one of three
alternative theories of guilt lacking substantial evidence.
DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT
Jennifer J. Bonzer of Johnson & Bonzer, P.L.C., Fort
Dodge, for appellant.
J. Miller, Attorney General, Louis S. Sloven, Assistant
Attorney General, John P. Sarcone, County Attorney, and
Daniel Voogt and Stephanie Cox, Assistant County Attorneys,
Daughenbaugh died after he was assaulted by a group of people
on the banks of the Des Moines River in Des Moines. Four
people-Kent Tyler, James Shorter, Yarvon Russell, and Leprese
Williams-were originally charged with murder in connection
with Daughenbaugh's death. Tyler was tried separately
from the others and was convicted of second-degree murder for
his role in punching Daughenbaugh in the face prior to the
group assault which caused Daughenbaugh's death.
State v. Tyler, we held the evidence in Tyler's
case did not support the trial court's instruction on
joint criminal conduct. 873 N.W.2d 741, 753 (Iowa 2016).
Because we could not determine whether the jury convicted him
under the tainted instruction or under the legally supported
theory that he acted as a principal or aider and abettor, we
reversed the conviction and remanded the case to the district
court. Id. at 753-54.
case, as in Tyler, a jury convicted Shorter of
second-degree murder. On appeal, Shorter claimed that there
was insufficient evidence to support the jury's verdict
under any of the State's theories. Shorter also claimed
that if there was insufficient evidence on the joint criminal
conduct theory but sufficient evidence as a principal or
aider and abettor, the conviction should be reversed under
Tyler, 873 N.W.2d 741. Shorter additionally claimed
that his counsel provided ineffective assistance by failing
to object to the testimony of a witness that identified
Shorter when the minutes of testimony did not state that she
would make such an identification. Shorter further asserted
that once this tainted evidence was admitted, his counsel
should have moved for a mistrial. Shorter also claimed that
the district court erred when it and counsel discussed how to
respond to questions posed by the jury when Shorter was not
present. Finally, Shorter claimed that his trial counsel gave
ineffective assistance for failure to request a stock jury
instruction on eyewitness identification.
court of appeals reversed Shorter's conviction. Relying
on Tyler, the court of appeals concluded that
although there was sufficient evidence to support the
conviction on the ground that Shorter was a principal in the
murder or aided and abetted the murder, there was
insufficient evidence to support the joint criminal conduct
instruction. See 873 N.W.2d at 753.
granted further review. For the reasons expressed below, we
vacate the judgment of the court of appeals and affirm
Factual and Procedural Background.
Evidence at Trial.
State offered evidence at Shorter's trial which showed
that on the evening of August 24, 2013, a group of teenagers
and young adults began drinking and partying in a parking lot
at the intersection of Second and Center Street near the
Wells Fargo Arena and the Des Moines River. Witnesses
estimated the size of the group was between thirty to fifty
arrived at the location and parked in the parking lot. He
appeared drunk when he arrived. He approached the group and
began participating in drinking and dancing.
time after Daughenbaugh arrived, Raymond Shorter, a cousin of
the defendant here, testified that Tyler struck Daughenbaugh,
declaring, "Don't touch me" or "Don't
fucking touch me." Daughenbaugh fell to the ground. At
the time of the assault, Monica Perkins was in a parked car
in the vicinity. Perkins testified that after Daughenbaugh
fell to the ground, a group assembled around Daughenbaugh and
jumped and stomped on his face. Perkins exited her vehicle
and attempted to protect Daughenbaugh by lying across his
the group appeared to be about to attack Perkins, her
boyfriend, Isaiah Berry, attempted to intervene. He was
assaulted by the group and suffered minor injuries. While the
group was assaulting Berry, Perkins was able to get off
Daughenbaugh's body and call 911. Two young women
wrestled the phone from Perkins and threw it toward the
river. About two or three minutes after Perkins's 911
phone call, Des Moines police arrived at the scene.
promptly took the police to Daughenbaugh. He moved slightly
but did not answer questions. Paramedics soon arrived and
Daughenbaugh was taken to a Des Moines hospital. Daughenbaugh
died on the morning of August 25. At trial, the medical
examiner testified that Daughenbaugh had multiple blunt force
injuries to his head and torso. The medical examiner
testified the cause of death was tears to the mesenteric
artery-the artery that supplies blood to the large and small
intestines-which caused internal bleeding resulting in death.
trial, the fighting issue was whether Shorter was involved in
the assault. The State sought to prove Shorter was one of the
participants in the assault that led to Daughenbaugh's
death, while the defense, in addition to attacking the
State's proof, sought to establish Shorter was in the
vicinity but not among the people who gathered around
State called Perkins to support its case. Perkins was
questioned at length about whether she could identify who was
involved in the assault on Daughenbaugh. Perkins testified
that she remembered identifying one person from an array of
photos on the morning of August 25, but could not provide a
description of the person she identified. When asked by the
prosecutor if she could now identify the person she picked in
the earlier photo lineup, she stated that she did not
remember. When pressed by the prosecutor, however, Perkins
testified that Shorter was one of the persons she saw stomp
on Daughenbaugh. On cross-examination, Perkins admitted that
in an earlier deposition, she was unable to identify any of
the defendants as having been involved in the assault on
who was seventeen in 2013, testified she saw Shorter in the
crowd that formed around Daughenbaugh. B.B. testified that
she left when the crowd formed. B.B. further testified
Shorter contacted her shortly after the night of the murder
and asked B.B. to tell the police that Shorter had been with
B.B. at a pedestrian bridge some distance away from the site
of the assault on Daughenbaugh. On cross-examination, B.B.
admitted that she had given inconsistent answers in an
earlier deposition and that she had been drinking vodka
continuously for about three or four hours prior to the
who was fifteen at the time of the murder, testified she saw
Shorter kick Daughenbaugh. She testified that after the
assault on Daughenbaugh began, she left the scene. Like B.B.,
L.S. too had been drinking on the evening of the assault and
was impeached by the defense regarding inconsistent
statements she made to the police and in a prior deposition.
another minor witness, claimed at trial to not remember many
of the events on the night of the murder. She did, however,
testify Shorter was not involved in the assault on
Timothy Peak testified as a rebuttal witness for the State.
Peak testified that after police arrived at the scene,
Shorter told him that he had gone up to Daughenbaugh and
kicked him while he was on the ground to check to see if
Daughenbaugh was okay.
defense offered evidence that Shorter was not a participant
in the assault. Berry testified that he knew Shorter and that
Shorter was not in the crowd surrounding Daughenbaugh. Berry
further testified that he was positive that Shorter was not
one of the people who assaulted Berry after his girlfriend
had tried to intervene on Daughenbaugh's behalf.
Shorter also testified at trial. He stated Shorter was near
the pedestrian bridge at the time the assault began and was
not involved in it. Similarly, Jontay Williams testified that
Shorter was not involved and that when the assault broke out,
he was talking to a girl down the hill near the water.
Williams testified that when the fight broke out, he called
for Shorter and Russell and they immediately left in his car.
Finally, Nakeba Blair-a friend of Shorter and
Russell-testified they were not involved in the fight.
Jury Instructions and Verdict.
district court instructed the jury on first- and
second-degree murder. On second-degree murder, the jury was
instructed that the defendant could be found guilty if the
jury found "the defendant, individually or through joint
criminal conduct or through aiding and abetting another,
assaulted Richard Daughenbaugh, " Daughenbaugh died as a
result of the assault, and "[t]he defendant,
individually or through joint criminal conduct or someone he
aided and abetted, acted with malice aforethought."
joint criminal conduct, the jury was instructed that
"[w]hen two or more persons act together and knowingly
commit a crime, each is responsible for the other's acts
done in furtherance of the commission of the crime."
Among the elements that the State had to prove in the case to
show joint criminal conduct, the State had to show that
"[w]hile furthering the crime of assault, the other
person or persons committed the different crime of
jury returned a general verdict finding Shorter guilty of
second-degree murder. The district court denied Shorter's
motion for a new trial and entered judgment. Shorter
appeal, Shorter claims the evidence at trial was insufficient
to support his conviction as a principal, an aider and
abettor, or under a joint criminal conduct theory and the
submission of these theories to the jury was erroneous.
Shorter also claims trial counsel provided ineffective
assistance for failing to object and request a mistrial when
Perkins testified that she saw Shorter stomping on
Daughenbaugh when the minutes of testimony did not state that
Perkins would make an identification. Shorter further claims
he is entitled to a new trial because the district court and
counsel discussed how to respond to questions posed by the
jury when Shorter was not present. Finally, Shorter asserts
his trial counsel gave ineffective assistance by failing to
request a stock jury instruction on eyewitness
Challenge to Verdict Based on Sufficiency of the
Standard of Review.
to sufficiency of the evidence are reviewed for correction of
errors at law. State v. Hearn, 797 N.W.2d 577, 579
(Iowa 2011). We will affirm a trial court's denial of a
motion for judgment of acquittal if the record contains
substantial evidence supporting the defendant's
conviction. State v. McCullah, 787 N.W.2d 90, 93
motion for a new trial, the district court uses a
weight-of-the-evidence test. State v. Nitcher, 720
N.W.2d 547, 559 (Iowa 2006); State v. Reeves, 670
N.W.2d 199, 202 (Iowa 2003). This test is more searching than
the sufficiency-of-the-evidence test, involves questions of
credibility, and requires the district court to determine
whether more credible evidence supports one side or the
other. State v. Ary, 877 N.W.2d 686, 706 (Iowa
2016); Nitcher, 720 N.W.2d at 559. We have cautioned
trial courts, however, "to exercise this discretion
carefully and sparingly" because of the deference owed
to the jury's credibility determinations. State v.
Ellis, 578 N.W.2d 655, 659 (Iowa 1998). We review the
trial court's ruling on a motion for a new trial for
abuse of discretion. Nitcher, 720 N.W.2d at 559;
Reeves, 670 N.W.2d at 202.
Positions of the Parties.
Sufficiency of the evidence as principal.
first challenges the sufficiency of the evidence as a
principal. Shorter begins by attacking the eyewitness
testimony of Perkins and L.S. He directs our attention to
State v. Henderson, 27 A.3d 872 (N.J. 2011). In
Henderson, the New Jersey Supreme Court canvassed
the evolving scientific literature related to eyewitness
testimony that raised questions about its reliability.
Id. at 896-910. Because of the reliability issues,
the New Jersey Supreme Court imposed limitations on the
admission of eyewitness testimony in New Jersey courts under
the due process clause of the New Jersey Constitution.
Id. at 928.
to the facts of this case, Shorter notes that Perkins was
unable to identify Shorter as one of the attackers at her
pretrial deposition. With respect to L.S., Shorter emphasizes
that she admitted she had been drinking vodka for three or
four hours and was very intoxicated at the time of the
attack. In contrast, Shorter notes that Berry, Raymond
Shorter, Blair, and T.T. all testified that Shorter was not
involved in the assault on Daughenbaugh.
Shorter asserts there is no evidence that he directly
contributed to the death of Daughenbaugh. Shorter notes that
the coroner testified that Daughenbaugh died as a result of
internal bleeding to the abdominal cavity caused by tears to
the mesentery. Shorter, however, points out that Perkins
testified Shorter stomped on Daughenbaugh's head. The
coroner testified that Daughenbaugh suffered head injuries
before the abdominal injuries and that the injuries to the
head did not directly contribute to Daughenbaugh's death.
There is no evidence, according to Shorter, that he kicked
Daughenbaugh in the abdomen. After Daughenbaugh fell
to the ground, about fifteen people started to kick and stomp
him. There was no evidence, however, that Shorter's kick
incapacitated him or led to his death.
State counters that under Iowa Code section 703.1 (2013),
"All persons concerned in the commission of a public
offense, whether they directly commit the act constituting
the offense or aid and abet its commission, shall be charged,
tried and punished as principals." Thus, according to
the State, there is no difference between liability as a
principal and liability as an aider or abettor. See State
v. Black, 282 N.W.2d 733, 735 (Iowa 1979).
question of causation, the State asserts the convictions may
be sustained on a theory of aggregate causation. In support
of its argument, the State cites Paroline v. United
States, 572 U.S., 134 S.Ct. 1710 (2014). In
Paroline, the Supreme Court noted "it would be
anomalous to turn away a person harmed by the combined acts
of many wrongdoers simply because none of those wrongdoers
alone caused the harm." Id. at__, 134 S.Ct. at
1724. Thus, according to the State, if the evidence is
sufficient to show that Shorter took part in the assault, the
State does not have to prove which kick delivered the fatal
respect to identity, the State agrees that it has the burden
of establishing that Shorter participated in the assault. The
State notes that Perkins identified Shorter as an assailant
in a pretrial photo lineup as well as at trial. Further,
Shorter's attempt to persuade B.B. to concoct a story
establishing an alibi and his admission to Detective Peak
that he kicked Daughenbaugh, if only to see if he was okay,
provided substantial evidence that Shorter was a participant
in the assault. The fact that Shorter admitted to Detective
Peak that he was in the assault area contradicted the
testimony of other witnesses who claimed that Shorter was not
in the area.
Sufficiency of the evidence on aiding and abetting.
alternative theory of aiding and abetting, Shorter emphasizes
that mere nearness to, or presence, at the scene of the
crime, without more, is not aiding and abetting. See
State v. Allen, 633 N.W.2d 752, 754-55 (Iowa 2001).
Shorter argues that there is simply no evidence that he
advised or encouraged anyone to assault Daughenbaugh or
cheered the attackers on. Shorter claims he was merely
present at the scene and that is insufficient to support a
second-degree murder conviction on an aiding and abetting
State responds that the evidence goes well beyond
establishing Shorter's mere presence at the crime scene.
Perkins and L.S. testified that Shorter participated in
kicking Daughenbaugh. A reasonable jury could believe that
Shorter's telling police that he kicked Daughenbaugh
"to see if he was okay" was simply an effort to
deflect culpability for the crime and was absurd on its face.
Once the State established that Shorter participated in the
assault, the elements of aiding and abetting were
Sufficiency of the evidence on joint criminal
theory of joint criminal conduct, Shorter asserts there was
no showing that he was acting in concert with others to cause
the death of Daughenbaugh. Further, Shorter asserts there
were not two crimes- instead, everyone was assaulting
Daughenbaugh at the same time. As a result, Shorter argues
the submission of the joint criminal conduct instruction was
asserts the case is similar to State v. Smith, 739
N.W.2d 289 (Iowa 2007). In Smith, we emphasized the
need for two separate crimes to support a joint criminal
conduct instruction. Id. at 294. The defendant must
act in concert with another for the first crime, and a
different crime must then be committed by another participant
in furtherance of the original offense. Id.
State asserts that joint criminal conduct does not require an
explicit agreement, but only that the participants acted
together. Further, the State suggests each kick or stomp
inflicted on Daughenbaugh constitutes a separate assault.
See State v. Hohle, 510 N.W.2d 847, 849 (Iowa 1994).
The State argues that there were, in fact, two crimes-the
crime of assault and the crime of murder. According to the
State, the fact that Daughenbaugh's death was reasonably
foreseeable from the group assault is sufficient to satisfy
the legal requirement that the murder be "in
furtherance" of the conspiracy. See State v.
Satern, 516 N.W.2d 839, 844 (Iowa 1994).
Impact of unsupported instruction on ...