IN THE COURT OF APPEALS OF IOWA
No. 22

- 0337 Filed March 8, 2023
STATE OF IOWA, Plaintiff

- Appellee,

vs. ASHLEY NICOLE HENNINGS , Defendant

- Appellant.

________________________________________________________________ Appeal from the Iowa District Court for Polk County, David Porter , Judge.

A defendant appeals her convictions for vehicular homicide, leaving the scene of an accident, and eluding ; she also challenges the sentencing order

. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

.

Martha J. Lucey , State Appellate Defender, and Robert P. Ranschau (until withdrawal) and Maria Ruhtenberg , Assistant Appellate Defender s , for appellant. Brenna Bird , Attorney General, and Israel Kodiaga , Assistant Attorney General, for appellee.

Considered by Tabor, P.J. , and Schumacher and Chicchelly, JJ.2

TABOR , Pre siding Judge

. Ashley Hennings challenges her convictions for vehicular homicide, leaving the scene of an accident, and eluding. She raises three issues : ( 1) W as she entitled to a n alternative jury instruction on causation? ( 2) S hould the district court have granted her a new trial? A nd (3) d id the court violate the one

- homicide rule ? On the first claim, we find the court adequately instructed the jury on causation. For the second, we find the court properly exercised its discretion in ruling that the weight of the evidence supported the verdicts. But turning to the third claim, we remand for entry of a corrected sentencing order.
I. Facts and Prior Proceedings “Brace for impact,” Erick Richter told his wife Shirlyna as they watched Hennings’s Chrysler mini van barrel through a major intersection , ram a red sedan , and come “flying ” toward their car. Two police cars were chasing Hennings a fter she sped away from a traffic stop initiated by Officer Brian Foster. A second officer, Albe rto Marquez, clocked her speed at ninety miles per hour on Des Moines city
streets. After ramming the sedan and hitting the Richters’ car, Hennings’s van flipped over, smashed into a tree, and came to rest on its side, catching fire. Bystanders pull ed He nnings from the smoking wreckage . She then fled on foot. But she didn’t get far. Witnesses pointed Officer Chase Lohnes in the direction she had run. And he located her a bout a block from the crash scene. Seeing her injuries, Lohnes took her to a nearby fire station. From there, an ambulance
t ransported her to the hospita l where staff drew her blood . It tested positive for methamphetamine.3
Meanwhile, Officer Foster raced to the crash scene

— finding Kie ran Stirling
unconscious and struggling to breath in side his badly damaged red sedan. Foster supported Stirling ’s neck while waiting for medics. But Stirling never regained consciousness and died later at the hospital. In a four

- count trial information, t he State charged Hennings with (1) homicide by vehicle

— operating while intoxicated, in violation of Iowa Code section 707.6A(1) (2021) , a class “B” felony; (2) homicide by vehicle

— reckless driving, in violation of section 707.6A(2)(A) , a class “C” felony ; (3) leaving the scene of an accident resulting in death, in violation of sections 321.261(4) and 321.263, a class “D” felony; and (4) eluding in violation of section 321.279(3)(A)(3) and (4), a class “D” felony. After a three

- day trial, a jury found Hen nings guilty of all four counts. She now appeals.
II. Scope and Standards of Review
We review the refusal to give a requested jury instruction for the correction of legal error. State v. Montgomery , 966 N.W.2d 641, 649 (Iowa 2021)

. We apply this same standard to review a challenge to a merger decision

. State v. Ceretti , 871 N.W.2d 88, 92 (Iowa 2015). By contrast, w e review the denial of a new

- trial motion for an abuse of discretion. State v. Linderman , 958 N.W.2d 211, 218 (Iowa Ct. A pp. 2021)

. And o n a weight

- of

- the

- evidence claim, we limit our review to the district court’s exercise of discretion

— l eaving alone the underlying question whether the scales tipped against the verdict s. Id

.4

III. Analysis
A. Causation Instruction Up first , Hennings contends that the jury received inadequate instructions on the causation element of homicide by intoxicated operation . She faults the district court for rejecting her proposed instruction

— borrowed from State v.
Hernandez

- Mendoza , No. 18

- 00 83, 2019 WL 1932539 , at *5 n.6 (Iowa Ct. App. May 1, 2019)

. To assess her contention, we look first to the marshalling instruction. The second element required the jury to find that Henning s ’s act of operating while having methamphetamine in her system c aused Stirling’s death.

Another instruction clarified that causation element.5

But Hennings requested yet a nother instruction on causation, arguing to the district court that “ the instructions need to reflect that there should be and must be

a substantial causal connection between impairment and Mr. Stirling ’s death.” 1 The district court rejected Hennings’s request, reasoning that it was “nowhere near
a model instruction .” A nd that it was “duplicative” of Instructions No. 12 and 17, which accurately conveyed the causation requirement. Hennings challenges that rejection. She asserts the jury needed more guidance on causation . She points to its question during deliberations: “On Count 1, do we need to prove the presence of the substance had any impact on her driving ability or influence the likelihood of a crash? Does this matter?” 2 But Hennings does not explain how the Hernandez

- Mendoza instruction would have answered the jury’s question. The first paragraph of that ins truction , on factual causation

— traditionally called but

- for causation

— was embodied in Instruction No. 17. See id . at *2; see also State v. Adams , 810 N.W.2d 365, 371

1 Our record does not include a copy of Hennings’s propose d instruction . B ut here is the instruction from the Hernandez

- Mendoza footnote:

T he State must prove a causal connection between the act or acts of Ramon Hernandez and the death of [Y.A.]. The alleged acts or conduct of Ramon Hernandez “caused” the deat h of [Y.A.] when her death would not have happened except for the acts or conduct.

. . . The State must also prove that the death of [Y.A.] was within the scope of Ramon Hernandez’s criminal responsibility. The death is within the scope of criminal re sponsibility if that death arises from the same types of danger created by Ramon Hernandez’s act or acts. You should consider whether repetition of Ramon Hernandez’s act or acts would make it more likely that the death of [Y.A.] would happen. I f Ramon He rnandez’s act or acts would not make [Y.A.’s] death more likely to occur, they are not within the scope of his criminal responsibility. 2019 WL 1932539, at *5 n.6 (alterations in original). 2 The court instructed the jury to reread the instructions and continue deliberating.6

(Iowa 2012) ( interpreting section 707.6A(1) as re quir ing proof of causal connection betwe en specific criminal act

— “intoxicated driving”

— and victim ’ s deat h , but not proof of “ a specific causal connection between the defendant ’ s intoxication and the victim ’ s death ” ). The second paragraph, on scope of criminal responsibility

— traditionally called proximate cause

— applies only if the chain of causation is attenuated

. See State v. Tyler , 873 N.W.2d 741, 749 (Iowa 2016) , superseded by statute on other grounds. And even then, Tyler did not settle whether “ criminal causation might still require more than proof of but

- for factual causation.” Id

. at 750. 3 So w ith only a passing mention of our supreme court’s civil cases on scope of liability, Hennings’s brief does not address how her proposed instruction

was proper or necessary on these facts. Without that advocacy, we are left with the district court’s well

- supported conclusion that the existing instructions tracked Adams and properly conveyed the concept of causation to the jury. Thus, we find no instructional error.
B. Greater Weight of the Ev idence Hennings next c ontests the district court’s denial of her motion for a new
trial on the convictions of homicide by intoxicated operation and leaving the scene of a fatal accident. A new trial is appropriate only when the evidence preponderates heav ily against the jury’s verdict s

. State v. Ernst , 954 N.W.2d 50, 60 (Iowa 2021)

. That standard allows the district court to make its own credibility

3 Tyler cites Adams , 810 N.W.2d at 372 n.7, where our supreme court also declined to decide whether the proximate cause doctrine ha d continuing viability in criminal cases after the supreme court’s embrace of the Restat e ment (Third) of Torts in Thompson v. Kaczinski , 774 N.W.2d 829, 839 (Iowa 2009)

. Tyler , 873 N.W.2d at 748

– 50.7

determinations

. Id

. The court must decide whether “ a greater amount of credible evidence ” suggests the v erdict s were a miscarriage of justice. State v. Ellis , 578 N.W.2d 655, 658 (Iowa 1998). We will consider each challenged verdict in turn.
1. Homicide by Intoxicated Operation To convict Hennings of this offense, the jury had to find two elements: (1) Hennings operated a motor vehicle while having any amount of a controlled substance in her body

. See Iowa Code § 707.6A(1). A nd (2) her criminal act unintentionally caused the death of Kieran Stirling. See i d. § 707.6A(1). Hennings d oes not dispute that she was operating her van and her blood tested positive for methamphetamine. Rather, she claims the State “produced no evidence that she was under the influence of a controlled substance at the time of the accident.” Her claim fails f or two reasons. First, the State was not required to prove Hennings was “under the influence of a controlled su b stance” when she was
opera t ing the van. “ Iowa ’ s homicide

- by

- intoxicated

- operation statute makes it a crime to unintentionally cause someone ’ s death ‘ by operating a motor vehicle while intoxicated, as prohibited by section 321J.2. ’” State v. Johnson , 950 N.W.2d 232, 236 (Iowa 2020) . “ The definition of ‘ intoxicated ’

. . . means a person is under the influence of alcohol or drugs (or so me combination of them), has a blood alcohol content .08 or greater, or has any amount of a controlled substance present as measured in a blood or urine test. ” Id. (emphasis added). The State prosecuted Hennings using that third definition of intoxicatio n. See Iowa Code § 321J.2(1)(c)

. That section criminalizes operating with “ any amount of prohibited substances in

one ’s body” whether or not th ose substances impair the operator

. See State v. Childs , 898 N.W.2d 177, 184 (Iowa 2017)

. So it was enough for the State to prove8

a causal connection between Henning s ’s criminal offense

— operating with any controlled substance s present in her blood

— and Stirling’s death. Contrary to Hennings’s claim, th e State was not required to prove that the me thamphetamine in her system “in any way influenced” her driving. See id . at 183 (reaffirming State

v. Comried

, 693 N.W.2d 773, 77 6 (Iowa 2005) ). Indeed, our courts have interpret ed section 321J.2(1)( c ) as creating “ a per se ban on driving with any
amount of a controlled substance in the body , whether or not [drivers] are under the influence .” Childs , 898 N.W.2d at 18 3 (citations and quotations omitted). Second, if the State needed to prove that Hennings was under the influence of methamphetamine, the district court did not abuse its discretion in finding credible evidence to support that she was

. Criminalist Justin Grodnitzky testified
that the state crime lab detected 496 nanograms of methamphetamine per one milliliter of Henning s’s blood. He said that amount fell in the average range for impairment cases. And he explained that when this drug is prescribed for conditions such as ADHD, it is at a therapeutic level of twenty nanograms per milli li ter . The district court determined that credible evidence supported the jury’s verdict: “A reasonable jury could conclude that having twenty
- five times the therapeutic level of methamphetamine in a person’s system may have a negative impact on that person’s physical condition, including th eir ability to safely operate a motor vehicle.” On top of the lab report, the court pointed to Hennings’s erratic behavior in recorded interactions with Officer Foster. On this record, we cannot say the district court abused its discretion in denying H enning s ’s motion for a new trial. See Ernst, 954 N.W.2d at 61

.9

2. Leaving the Scene of a Fatal Accident To convict Hennings of this offense, the jury had to find five elements: (1) Hennings drove a vehicle involved in an accident resulting in Stirling’s death; (2) she knew about the accident; (3) she knew the accident resulted in injury or death or knew the accident was “of such a nature” that a reasonable person would expect that injury or death occurred to another person ; (4) Hennings failed to stop
her vehicle at the scene of the accident or as close as possible to the scene or failed to return to and remain at the sce ne though a ble to do so; and (5) after the accident, Hennings failed to : (a) l eave her driver’s license, registration, or other identification data at the scene of the accident ; or (b) promptly report the accident to law enforcement authorities after leaving the scene. See Iowa Code § § 321.261(4) , .263

. Hennings takes aim at the S tate’s proof for elements (4) and (5)

. On the fourth element, Hennings recounts the evidence that her van was disabled and
asserts that she was “directed by law enforcement away from her vehicle due to the explosion risk.” 4 On the fifth element, she con tends that the State did not offer evidence that she failed to provide information. C iting State v. Tarbox , she insists that she did not fail to report the accident because police were already at the scene when the crash occurred. See 739 N.W.2d 850, 854
− 55 (Iowa 2007)

.

4 Hennings cites no part of the record to support that assertion. See Iowa R s . App. P. 6.903,

. 904(4). And on our review, we cannot find that any officer directed her to run blocks away from the accident scene.10 In response, the State quotes a long passage from the district court’s o rder denying the n ew - trial motion. But the State does not zero in on the elements challenged by Hennings. Nor does it address Tarbox

. Despite those omissions in the State’s response, we find no abuse of discretion. The court highlighted Officer Lohnes’s dash cam video, admitted as an exhibit, to show Hennings’s flight from the crash scene. Indeed, Lohnes saw

someone running at “a dead sprint” awa y from the accident when he first arrived. When he learned from witnesses that the runner had been driving the van, he set

o ut to find her. He circled his patrol car around and , within minutes , found Hennings in a nearby yard. The district court could rel y on that evidence to conclude that Hennings did not remain at the scene, though she could have, and that she left without providing anyone with identifying information. See State v. Sebben , 185 N.W.2d 771, 774 (Iowa 1971) ( stating that the “ manifest intent ” of section 321.261 was to prevent motorist s involved in personal injury accident s from evading liability, civil or criminal, by escaping before their identify can be established ). The court properly exercised its discretion in finding the jury’s verdict was supported by the greater weight of the evidence. C. One - Homicide Rule Finally, Hennings contends the district court violated the one

- homicide rule by entering judgment on both homicide by intoxicated operation and homicide by reckless driving. The State agrees. We thus “annul[] and set aside” her conviction for homicide by reckless driving. See State v. Wissing , 528 N.W.2d 561, 567 (Iowa 1995) . And we remand for entry of a new sentencing order reflecting that change. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.