IN THE COURT OF APPEALS OF IOWA

No. 19-0918

Filed August 5, 2020

STATE OF IOWA,

Plaintiff-Appellee,

vs.

DOUGLAS JOSEPH FOSTER,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Muscatine County, Stuart P. Werling, 

Judge.

The defendant appeals his conviction for murder in the first degree, claiming 

the guilty verdict is not supported by substantial evidence. AFFIRMED.

Martha J. Lucey, State Appellate Defender, and Maria Ruhtenberg, 

Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant 

Attorney General, for appellee.

Considered by Vaitheswaran, P.J., Schumacher, J., and Blane, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206 

(2020).
2

BLANE, Senior Judge.

Following trial, a jury found Douglas Foster guilty of first-degree murder in 

the death of Lea Ponce. Foster appeals his conviction, claiming that the evidence 

at trial was insufficient to support the verdict. Specifically, Foster argues there was 

not substantial evidence with respect to malice, specific intent, willfulness, 

deliberation and premeditation, and that the evidence did not support a finding of 

confinement to constitute kidnapping—a predicate for the felony-murder 

alternative. Upon our review of the evidence, we find the jury verdict supported by 

substantial evidence and affirm.

I. Scope and standard of review. 

Challenges to the sufficiency of the evidence are reviewed for correction of

errors at law. State v. Albright, 925 N.W.2d 144, 152 (Iowa 2019). The court views 

“the evidence ‘in the light most favorable to the State, including all reasonable 

inferences that may be fairly drawn from the evidence.’” State v. Ortiz, 905 N.W.2d 

174, 180 (Iowa 2017) (quoting State v. Huser, 894 N.W.2d 472, 490 (Iowa 2017)).

All evidence is considered, not just that of an inculpatory nature. See Huser, 894 

N.W.2d at 490. “[W]e will uphold a verdict if substantial evidence supports it.” 

State v. Wickes, 910 N.W.2d 554, 563 (Iowa 2018) (quoting State v. Ramirez, 895 

N.W.2d 884, 890 (Iowa 2017)). “Evidence is substantial if, ‘when viewed in the 

light most favorable to the State, it can convince a rational jury that the defendant 

is guilty beyond a reasonable doubt.’” Id. (quoting Ramirez, 895 N.W.2d at 890). 

Evidence is not rendered insubstantial merely because it might support a different 

conclusion; the only question is whether the evidence supports the finding actually 

made. See Brokaw v. Winfield-Mt. Union Cmty. Sch. Dist., 788 N.W.2d 386, 393 
3

(Iowa 2010). In considering a sufficiency-of-the-evidence challenge, “[i]t is not the 

province of the [appellate] court . . . to resolve conflicts in the evidence, to pass 

upon the credibility of witnesses, to determine the plausibility of explanations, or to 

weigh the evidence; such matters are for the jury.” State v. Musser, 721 N.W.2d 

758, 761 (Iowa 2006) (quoting State v. Williams, 695 N.W.2d 23, 28 (Iowa 2005)).

II. Procedural and factual background.

It is undisputed that shortly after midnight on January 8, 2019, Foster picked 

up Ponce at the Walmart in Muscatine. Foster and Ponce were acquainted, had 

a prior sexual relationship, and were the only two people in his truck that night. 

Surveillance video from the Walmart shows Ponce voluntarily got in Foster’s truck. 

The State contends, after picking her up, Foster drove his truck north on Highway 

38 at fifty-five miles per hour and intentionally pushed Ponce out of the passenger 

door to her death. At trial, Foster claimed she jumped. Ponce was found dead 

along the side of the highway. The autopsy established that she died of blunt force 

trauma to her head and chest consistent with a person coming out of a fast-moving 

vehicle and hitting and skidding on the pavement.

A reasonable jury could reach the following fact conclusions on the 

evidence presented at trial: A few weeks before her death, Ponce, who was a 

methamphetamine user, had stolen drugs and money from an acquaintance, 

Timothy Kriz.1 Kriz had put out a bounty on Ponce—he would give seven ounces 

of methamphetamine (estimated at between $100–$300 in value) to anyone who 

 

1 The autopsy results showed Ponce had amphetamine and methamphetamine in 

her system when she died. 
4

either killed or delivered Ponce to him. Foster knew of the bounty Kriz placed on 

Ponce. 

On January 7, Ponce felt the need to leave Muscatine and move to Cedar 

Rapids or Iowa City. She contacted several people for a ride. Foster, who was 

living in Marion, Iowa at the time, agreed to pick her up at the Walmart in Muscatine 

shortly after midnight on January 8, and give her a ride back to Cedar Rapids. 

Another acquaintance, Cody Sheese, agreed to drive Ponce to the Walmart that 

evening. According to Sheese, Ponce had her cell phone with her when he 

dropped her off at the Walmart. He also testified that it was widely known in the 

Muscatine area that Kriz had put a bounty on Ponce. Video surveillance from the 

Walmart showed Sheese dropping Ponce off, that she entered the Walmart, went 

to the restroom, and came back out. She had a cell phone with her.

Shortly after midnight, while on his way to pick up Ponce at the Walmart, 

Foster had a phone conversation and then a contentious exchange of text 

messages with a girlfriend, Amanda, who was apparently upset that Foster was 

giving Ponce a ride.

2

 During this exchange, Foster wrote “yeah I’m gonna pull over 

and fuck her before I turn her over to get fucking beaten have to death.”3 Video 

surveillance from the Walmart and another commercial business showed Ponce 

getting into Foster’s truck at 12:33 a.m. and the truck heading north on Highway 

 

2 During the police investigation, a search warrant was obtained for Foster’s cell 

phone. A forensic search of the phone disclosed dates, times, and content of the 

use of the cell phone by Foster, including phone calls made or received, text 

messaging, and internet searches, all of which were submitted as evidence during 

the trial. 

3 At trial, and in the briefs, the parties agree that the text was a typographical error 

and was meant to state: “half to death.”
5

38. Based upon the video and location of her body, it is estimated Ponce died 

within the next few minutes. A passerby found Ponce’s body on the east side of 

the highway shortly before 1:00 a.m. and contacted police. The police searched 

the area and collected Ponce’s shoes in the ditch, her purse, and contents from 

the purse, which included some of Kriz’s credit cards, but police did not find her 

cell phone that she had with her.

Foster’s cell phone records showed at 12:39 a.m., he sent a text on his 

phone to Ponce, who he had already picked up and was dead along the side of 

the highway, which stated: “Well you’re not here and I’m tired of this bullshit.” At 

12:44 a.m., Foster placed two calls to Kriz and reached him on the second call. 

During the police investigation, a detective obtained Ponce’s cell phone number 

from her father. The police then obtained a warrant for a “ping” from Ponce’s cell 

phone provider to locate her cell phone. The “ping” produced a location, and police 

recovered Ponce’s badly damaged cell phone on the bedside stand in Kriz’s motel 

room in Iowa City.4

After pushing Ponce out of his truck, Foster did not take regular highways 

or the most direct route back to his residence in Marion. Shortly after 3:00 a.m., 

Foster used his cell phone to consult internet maps. Off of Highway 38 and north 

of Interstate 80, Foster took an unimproved Class B county road and got his truck 

stuck in the mud. The next day, Foster borrowed a pickup truck from his employer 

to go and tow his own truck out of the mud. Foster used his phone to search for a 

nearby car wash and washed down his truck. In the two days after Ponce’s death, 

 

4 Police were unable to “unlock” Ponce’s phone to obtain data from it.
6

Foster also used his cell phone to search for “Muscatine news,” “Muscatine 

murder,” and “Marion Police Department drones.” 

Using the Walmart surveillance video, the police identified the flatbed truck 

as licensed and belonging to Foster. Police determined he was working in Marion, 

Iowa. Muscatine officers travelled to Marion and obtained permission from 

Foster’s employer to search the building, which included where Foster was staying. 

During the search, an officer found Foster hiding in the attic under the insulation. 

Foster stated he had a warrant out for his arrest in Texas as the reason for his 

hiding. Foster had also called the Muscatine police earlier in the day and left a 

message, but the officers were not aware of this. 

The police also obtained a search warrant to seize and search Foster’s 

truck, which was located behind his employer’s building. Although the truck had 

been washed, mud was still observable. Under the seat of the truck, they found a 

pair of zip ties that were fashioned into handcuffs. Foster also provided the police 

with his cell phone, for which they later obtained a search warrant. A police 

detective interviewed Foster after he was found hiding. Foster acknowledged

picking up Ponce at the Muscatine Walmart but claimed that after she asked for 

some meth and he did not have any, she demanded to get out of his truck. Foster 

told the detective he complied and stopped and let her get out and the last he saw 

she was standing on the side of the road.5 When the detective suggested that 

 

5 The medical examiner who performed the autopsy of Ponce testified that the 

injuries he observed would not have been consistent with her being struck by a 

moving vehicle while she was standing or walking along the roadway. 
7

Ponce had jumped from his moving truck, Foster denied that happened. Foster 

was not immediately arrested.

After police searched Foster’s cell phone and found the text messaging that 

contradicted his statement to the detective, and zip tie handcuffs were found in his

truck, Foster was arrested and charged with Ponce’s murder. He was held in the 

Muscatine County jail, where he came to meet Rodney Foutch, an inmate being 

held on federal charges.6 During their time in jail together, Foster gradually talked 

to Foutch more and more about his charges. Foutch told his wife what Foster had 

been telling him, and Foutch’s wife contacted the Muscatine Police, who then 

interviewed Foutch.

Foutch revealed to the police that Foster had told him several stories about 

what happened, initially that Ponce jumped from his moving truck. Eventually,

Foster told him that he intended to first have sex with Ponce and then deliver her 

to Kriz; that he was aware of the bounty. Foster later told Foutch that Ponce saw 

on his cell phone that there was a bounty on her, wanted out of the truck, and 

began to open the door. Foster told Foutch that he struck her in the back of the 

head with the barrel of his .40 caliber hand gun to keep her from getting out. Foster 

indicated that they struggled and he finally pushed or kicked Ponce out of his 

moving truck and felt the back tires bump, like he had run over her. Foster also 

said he had buried the .40 caliber gun. Foster also laughed that the police were 

 

6 Foutch was federally charged with possession with intent to distribute 

methamphetamine and felon in possession of a firearm.
8

wrong when they thought he had hit Ponce in the head with the hammer they had 

found in his truck since he had hit her with the gun.7

Foutch testified at trial to these discussions with Foster.

8

 To corroborate 

Foutch’s testimony, the prosecution established that Foutch would not have known 

any details about a .40 caliber gun or a hammer except to learn them from Foster, 

since the police had not made public any details of Ponce’s death, her injuries, or 

what had been found during the investigation. Further, the State’s evidence 

included video from the Muscatine jail showing Foutch and Foster together in the 

jail pod, and a portion of the video showed Foster making a motion like he was 

striking someone. Foutch testified this was Foster demonstrating how he had 

struck Ponce with the gun. 

The police searched for the .40 caliber gun but could not find it. However, 

in searching Foster’s cell phone, they came across recent photographs of Foster 

holding a .40 caliber gun. Also, Foster’s employer turned over to police a .40 

caliber ammunition clip that was found in the company pickup truck after it was 

loaned to Foster to pull his own truck out of the mud—additional evidence 

corroborating Foutch’s testimony. 

On January 25, 2019, the State charged Foster with murder in the first

degree, in violation of Iowa Code section 707.2(1)(a), (b) (2019), a class “A” felony. 

It alleged two alternatives, premeditated murder or felony murder in the course of 

 

7 The medical examiner testified that Ponce had contusions to the back of her skull, 

but he could not determine if these were caused by being hit with the barrel of a 

gun or from striking her head on the road pavement. 

8 Foutch was cross-examined whether he was going to receive any benefit in his 

federal sentencing for testifying for the State against Foster, which he denied.
9

the public offense of kidnapping. Foster pled not guilty, and the jury trial 

commenced on April 8. During the trial, the court denied Foster’s motion for 

judgment of acquittal made at the close of the State’s case as well as at the close 

of all of the evidence. 

The court instructed the jury on murder in the first degree based upon the 

two alternatives of premeditation as well as murder in perpetration of a public 

offense, kidnapping. The court also gave the jury a single verdict form as to murder 

in the first degree, instructing the jury that it could find Foster guilty of that charge 

under either of the State’s alternative theories. The jury returned a verdict of guilty 

of murder in the first degree, not specifying whether it was based on the 

premeditation theory or the felony murder/kidnapping theory. Foster did not testify 

at trial. He appeals the verdict.

III. Discussion.

A. Malice aforethought, specific intent, willfully, deliberation and 

premeditation.

On appeal, Foster first argues that the State failed to present substantial 

evidence that he inflicted blunt force injuries on Ponce, or that he acted with malice 

aforethought, willfully, deliberately, premeditatedly, and with specific intent to kill 

Ponce. The trial court gave the jury the following marshalling instruction for firstdegree murder:

The State must prove all of the following elements of Murder in the 

First Degree:

1. On or about January 8, 2019, the defendant inflicted blunt 

force injuries to Lea Ponce’s head and chest.

2. Lea Ponce died as a result of the blunt force injuries to her 

head and chest. 

3. The defendant acted with malice aforethought. 
10

4. The defendant acted under one of the following 

circumstances:

a. willfully, deliberately, premeditatedly, and with the 

specific intent to kill Lea Ponce; or 

b. while participating in the public offense of

kidnapping.

If the State has proved all of the elements, the defendant is 

guilty of Murder in the First Degree. If the State has failed to prove 

any of the elements, the defendant is not guilty of Murder in the First 

Degree and you will then consider the charge of Murder in the

Second Degree as explained in Instruction No. 28.

In Jury Instruction No. 21, the court defined for the jury the words “willful,” 

“deliberate,” and “premeditate,” and instructed that “[d]eliberation and 

premeditation need not exist for any length of time before the act.” On appeal, 

Foster does not challenge the court’s jury instructions, and we observe they were 

correct statements of the law.

Deliberation and premeditation may be shown by circumstantial 

evidence in one or more of three ways: (1) evidence of planning

activity of the defendant which was directed toward the killing; (2)

evidence of motive which might be inferred from entire relationships 

between defendant and victim; and (3) evidence regarding the nature 

of the killing.

State v. Blair, 347 N.W.2d 416, 421 (Iowa 1984) (citations omitted).

The court also instructed the jury on malice. “Malice aforethought is a fixed 

purpose or design to do some physical harm to another that exists before the act 

is committed.” See State v. Buenaventura, 660 N.W.2d 38, 49 (Iowa 2003) 

(quoting State v. Myers, 653 N.W.2d 574, 579 (Iowa 2002)). Malice also does not 

need to exist for any particular length of time. Id.

The court also defined “specific intent” as doing an act with a specific 

purpose in mind. That instruction also informed the jury that 

Because determining the defendant’s specific intent requires you to 

decide what the [d]efendant was thinking when an act was done, it is 
11

seldom capable of direct proof. Therefore, you should consider the 

facts and circumstances surrounding the act to determine the 

defendant’s specific intent. You may, but are not required to, 

conclude a person intends the natural results of his or her acts.

In determining specific intent, the jury had substantial evidence of facts and 

circumstances of Foster’s conduct surrounding the act. Admissions may be 

implied by the conduct of the defendant subsequent to a crime when such conduct 

indicates a consciousness of guilt. State v. Nance, 533 N.W.2d 557, 562 (Iowa 

1995) (citing State v. Cox, 500 N.W.2d 23, 25 (Iowa 1993)).

Based upon our review of all of the evidence presented, that evidence was 

sufficient to support a jury finding that Foster inflicted blunt force injuries and did 

so with malice, willfully, deliberately, and with specific intent to kill Ponce. It is 

undisputed that Ponce died by exiting Foster’s fast moving truck on Highway 38. 

The jury could find that Foster had the specific intent to cause Ponce blunt force 

injuries that would result in her death by pushing or kicking her out of the truck as 

it proceeded down the paved highway at fifty-five miles per hour.

It was for the jury to determine if Ponce leapt to her death or if Foster pushed 

or kicked her out of his truck. From the evidence, the jury could well find that when 

Foster went to pick up Ponce, he was armed with a .40 caliber hand gun. He had 

zip-tie handcuffs in his truck. He was acquainted with Kriz and was aware of the 

bounty Kriz had put out on Ponce—which could be earned by either killing Ponce 

or delivering Ponce to Kriz; therefore Foster had a motive. Before picking up 

Ponce, he expressed in a text his intention of delivering Ponce to Kriz and that she 

would be beaten half to death.
12

The jury could find Foster’s consciousness of guilt was exhibited in 

numerous ways. Within minutes of Ponce’s death, he sent a cover-up text 

message to her phone claiming that she was not at the Walmart. This was 

obviously false because surveillance cameras show him picking Ponce up. He 

placed two calls to Kriz. He took a circuitous route to return to his residence and 

got his truck stuck in the mud. After retrieving the truck, he washed it to eliminate 

blood or DNA evidence. He buried his .40 caliber gun. He conducted internet 

searches regarding “Muscatine murder.” He told the detective that Ponce had 

demanded to be let out of the truck and he complied, and when the detective asked 

if Ponce had jumped from his truck, he specifically denied this happened. This is 

all consistent with what could be called a guilty state of mind. 

In addition, the jury had Foster’s admissions to Foutch, which included that 

he struck Ponce in the back of the head with his handgun, then pushed her out of 

the truck. Based upon Foutch’s testimony, the jury could also have concluded that 

once Ponce learned from Foster’s cell phone of the bounty on her, that Foster 

decided to kill her rather than take her to Kriz. With all of this evidence, the jury 

was free to reject Foster’s claim at trial, that was based upon one of the stories 

Foster told Foutch, that Ponce jumped from his moving truck. 

B. Perpetrated in the commission of the public offense of kidnapping.

Foster claims that there was insufficient evidence that he was kidnapping 

Ponce when he caused her death. Foster’s argument is premised on the assertion

that Ponce voluntarily got into his truck at the Walmart and that there is no evidence 

that he restrained her. Further, Foster argues that if we find sufficient evidence 

regarding a willful, deliberate, and premeditated murder but find insufficient 
13

evidence for the kidnapping felony murder alternative, he is entitled to a new trial

because the jury returned a general verdict and did not specify under which 

alternative it was finding him guilty. See State v. Williams, 674 N.W.2d 69, 71 

(Iowa 2004).

The trial court instructed the jury as follows regarding the public offense of 

kidnapping:

Public offense of ‘kidnapping’ means a crime where: 

1. A victim is confined or removed by another person. 

2. The person did so with the specific intent to: 

a. inflict serious injury on the victim; or 

b. secretly confine the victim. 

3. The person knew he did not have the consent of the 

victim to so act.

The jury was also instructed regarding confinement:

A person is “confined” when her freedom to move about is 

substantially restricted by force, threat or deception. The person may 

be confined either in the place where the restriction began or in a 

place to which she has been removed.

No minimum time of confinement or distance or removal is 

required. It must be more than slight. In determining whether 

confinement or removal exists, you may consider whether:

a. The risk of harm to the victim was substantially increased;

b. The risk of detection was substantially reduced; or

c. Escape was made substantially easier.

Foster’s argument fails for several reasons. First, there was substantial 

evidence from which the jury could find that Ponce got into Foster’s truck by 

deception. She thought he was going to give her a ride to Cedar Rapids. The jury 

could also conclude Foster’s text message to Amanda established that he had 

knowledge of the bounty on Ponce—which could be earned by killing her or 

delivering her to Kriz. The text further indicated that he was going to deliver Ponce

to Kriz. The jury could also reasonably believe Foster also had prepared for a 
14

kidnapping—he had his .40 caliber handgun and zip-tie handcuffs to restrain 

Ponce. 

If a victim’s consent to confinement or removal is obtained by deception, 

then the confinement element has been met. State v. Osborn, 455 N.W.2d 292, 

293–94 (Iowa Ct. App. 1990). “[C]onsent obtained by fraud or deceit negates the 

consent, or is not consent at all.” Id. at 294. The jury could rightly infer that had 

Ponce known Foster’s true intentions before she got into his truck at Walmart, she 

never would have done so, and that her willingness to get into his truck was the

result of his deception. As such, the evidence was sufficient to show that Foster

kidnapped Ponce before he killed her.

In addition, there was evidence of actual confinement. According to 

Foutch’s testimony, while in the truck, Ponce learned of the bounty and tried to 

leave the truck and get away from Foster. The two physically fought and this 

culminated in Foster striking Ponce in the back of the head with his handgun to 

prevent her from leaving his truck. This evidence was sufficient to show Foster

confined Ponce. See State v. Maddox, No. 10-0831, 2011 WL 2075421, at *6

(Iowa Ct. App. May 25, 2011) (discussing cases that found sufficient evidence of

kidnapping when “a reasonable jury could find . . . that the movement and

confinement . . . had significance independent of charges” including “lessening the 

risk of detection, or significantly facilitating escape”). The restraint does not have 

to be for any particular length of time, but the jury could conclude Foster confined 

Ponce in the moment of hitting her on the head, even if she successfully opened 

the truck door. 
15

Since we find either of the State’s theories establishing first-degree murder 

is supported by substantial evidence, the general verdict found by the jury need 

not be revisited.9

C. Conclusion. 

Having reviewed all of the evidence, we find there is substantial evidence 

to support the jury’s verdict.

AFFIRMED. 

 

9 We note that Foster was sentenced and judgment was entered on May 31, 2019. 

Iowa Code section 814.28 (2019), which became effective on July 1, 2019, 

provides:

When the prosecution relies on multiple or alternative theories to 

prove the commission of a public offense, a jury may return a general 

verdict. If the jury returns a general verdict, an appellate court shall 

not set aside or reverse such a verdict on the basis of a defective or 

insufficient theory if one or more of the theories presented and 

described in the complaint, information, indictment, or jury instruction 

is sufficient to sustain the verdict on at least one count.

Relying on State v. Macke, 933 N.W.2d 226, 235 (Iowa 2019), we held in State v. 

Warren, since section 814.28 lacks language clearly indicating a legislative intent 

for retroactivity and it did not exist at the time judgment of conviction was entered 

against the defendant, it did not apply to the appeal. No. 19-0267, 2020 WL 

2488183, at *2 (Iowa Ct. App. May 13, 2020), further rev. granted (Iowa Jul. 18, 

2020) (No. 19-0267). Therefore, section 814.28 is not applicable to this appeal.