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.2

VAITHESWARAN, Judge. Yarvon Russell appeals his judgment and sentence for second

- degree murder. He raises a number of issues, including a challeng e to the sufficiency of the evidence support ing 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 assault ed. 3. The defendant, individually o r 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) aidi ng 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. Se e State v

. Shorter , No. 14

- 1239, 2016 WL ______, at *__ (Iowa Ct. App. June3

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 . H e focuses on the causation element and a rgues “[t]he blows that he allegedly delivered di d 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 Daug h enbaugh’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 support ed 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

. S ee S horter , 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 the4

reasons discussed in Shorter , we find substantial evidence that Shorter, Russell , and the others inv olved in the group attack acted in concert. S ee S horter , 2016 WL ______, at *__. But, we find insufficient evidence of a second crime in furtherance of the group attack. As Russell contends, “ T he 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 w e 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 evi dentiary claim , as it may arise on retrial.
I I
. Evidentiary Issue
A t 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 m ade during Tyler’s trial.5

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 “una vailability as a witness ” to include “ situatio ns 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
proce eding, 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 statement s to po lice, 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 state d, “ 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

. T he 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.6
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

. T his 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.” ) ; s ee also id. a dvisory c ommittee n ote. The court also allowed the detect ive 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 r ule 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 of7

the matter asse rted, 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 “th e 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 Sta te offered previously

- recanted statements of witnesses).