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.
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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
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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
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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.
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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.
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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
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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).