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 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 
4

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. 
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 “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.
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. 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 
7

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).