State of Iowa v. Anthony Alexander Mong

IN THE SUPREME COURT OF IOWA

No. 19–0911

Submitted October 12, 2022—Filed March 24, 2023

STATE OF IOWA,

Appellee,

vs.

ANTHONY ALEXANDER MONG,

Appellant.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Polk County, William P. Kelly,

Judge.

The State seeks further review of the court of appeals decision reversing

the defendant’s convictions for attempted murder, intimidation with a dangerous

weapon, and willful injury. DECISION OF COURT OF APPEALS AFFIRMED IN

PART AND VACATED IN PART; DISTRICT COURT JUDGMENT AFFIRMED IN

PART, VACATED IN PART, AND REMANDED.

McDonald, J., delivered the opinion of the court, in which all participating

justices joined. May, J., took no part in the consideration or decision of this case.

Cathleen J. Siebrecht of Siebrecht Law Firm, Des Moines, for appellant.

Brenna Bird, Attorney General, and Bridget A. Chambers, Assistant

Attorney General, for appellee.
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McDONALD, Justice.

Anthony Mong shot at and attempted to kill Ricco Martin, but he missed

and inadvertently shot and injured Shane Woods. Under Iowa law, “[a] party is

liable for a wrongful act, where there exists a criminal intent,” notwithstanding

that the act done “is not that which was intended.” State v. Ruhl, 8 Iowa (Clarke)

447, 448 (1859). “The wrongful intent to do one act, is transposed to the other,

and constitutes the same offense.” Id. The transposition of the defendant’s

criminal intent to establish criminal liability is known as the doctrine of

transferred intent. Based on transferred intent, a jury found Mong guilty of the

attempted murder of Woods, intimidation with a dangerous weapon with respect

to Woods, willful injury causing bodily injury with respect to Woods, and going

armed with intent.

The district court entered judgment and sentence following the jury’s

verdict, and Mong timely appealed his convictions. We transferred Mong’s appeal

to the court of appeals. The court of appeals concluded there was insufficient

evidence Mong had the intent to kill or injure Woods to support the convictions

for attempted murder, intimidation with a dangerous weapon, and willful injury;

the court of appeals thus reversed those convictions. The court of appeals

conditionally affirmed Mong’s conviction for going armed with intent and

remanded the matter to the district court to afford Mong an additional

opportunity to develop a fair-cross-section challenge to the jury pool.

We granted the State’s application for further review. “On further review,

we have the discretion to review any issue raised on appeal.” State v. Crawford,
 3

972 N.W.2d 189, 203 (Iowa 2022) (quoting State v. Vandermark, 965 N.W.2d

888, 891 (Iowa 2021)). We exercise that discretion to review only those portions

of the court of appeals decision regarding the jury selection process and the

sufficiency of the evidence supporting Mong’s convictions. The court of appeals

decision is final as to all other issues.

I.

Mong and Madison Cobb began dating in 2017. The relationship was rocky

because, among other things, Mong suspected Cobb was also involved in a

relationship with Ricco Martin. Mong confronted Martin about Martin’s

relationship with Cobb. In 2017, Mong sent Martin thirty to forty intimidating

text messages. In addition, several of the State’s witnesses testified Mong was

jealous of Martin and had threatened him. They testified Mong told Martin that

“he didn’t want to fight anymore, that he was just going to shoot him.”

The shooting at issue in this case occurred several days after Cobb ended

her relationship with Mong. Cobb lived with her parents Todd and Heather

Hines. On the night of June 1, 2018, Cobb, Todd, Shane Woods (Cobb’s uncle),

David Woods (Cobb’s cousin), and Martin were gathered in front of the Hines’

residence. Around 8:00 p.m., Mong drove past the residence, made a U-turn,

then parked on the street in front of the home. The State and Mong agree on

these facts, but they disagree on what happened next.

According to the State, Mong shot at Martin, missed, and hit Shane. Todd

testified that when Mong drove by the house, Todd heard the sound of someone

racking a gun. Upon hearing the sound, Todd went inside to get his gun. When
 4

Todd came back outside, he saw a gun in Mong’s hand. Todd drew his gun,

accidentally dropped it, and then ran into his home. Todd testified that between

the time he dropped his gun and the time he ran inside, he heard, but did not

see, two shots fired. Todd yelled at Shane to get in the house. Shane, still

standing in the driveway, yelled, “I’m hit. I’m hit.” And he was. A bullet entered

the left side of his back, exited through his chest, and then went through his

arm. At the time Shane was hit, he was six to eight feet from Martin. At trial,

Shane identified Mong as the shooter. Martin testified that he saw Mong shoot

Shane. During the confrontation, David retrieved a baseball bat from the garage.

When David exited the garage, he saw Shane bleeding. David also saw Mong get

into his car. David chased Mong’s car with the baseball bat as it drove away.

Todd called 911, and Shane was later transported to the hospital and treated for

the gunshot wound. Police later found a shell casing in the street where Mong

would have been.

According to Mong, he was the victim in this incident. Mong testified he

and his best friend, Brandon Henlon, went to the Hines’ residence to retrieve

Mong’s Cadillac, which Todd had been working on. Mong testified he arrived at

the house, parked in the street, told Henlon to stay in the car, and exited the

vehicle with a black iPhone in his hand. Mong testified he never had a gun with

him. Mong testified that, as he crossed the sidewalk, he noticed Todd had a gun.

Mong testified that Martin started “going for the firearm.” Mong testified that

when he saw Martin reach for Todd’s gun, Mong ducked behind a big tree in the

yard to avoid being shot. Mong testified he heard the sound of a shot from where
 5

the group was standing and then the sound of another shot from behind him.

Mong testified he did not see who fired either shot. He testified he ran back to

his vehicle. When he got in the vehicle, Henlon had a gun in his hand. Mong

testified that until that point, he did not know Henlon had a gun. Henlon died of

a drug overdose prior to trial and was unable to testify about these events.

After the shooting, Mong drove away from the scene. He testified he

dropped the car off at a friend’s house. When police later found the car, they

discovered in it “a live round shell casing with a bullet that had not been fired

yet.” Rather than returning home or contacting the police, Mong went on the

run. He testified he did so because he was afraid of being shot. He testified he

stayed that night at a local hotel, which his friend Raymond had booked for him.

When asked Raymond’s last name, Mong responded he “was not sure of his last

name.” Mong testified that Raymond, whose last name Mong did not know, then

drove him to Las Vegas. Mong testified that his mother lived in Las Vegas, that

“she was sick,” and that he “needed to see her.” He testified that he did not

contact the police to report Henlon because Henlon was his best friend and that

he did not want to get Henlon in trouble. In August 2018, police arrested Mong

in Las Vegas. He was then returned to Iowa to face the charges at issue here.

The State charged Mong with the attempted murder of Shane Woods, in

violation of Iowa Code section 707.11(1) (2018); intimidation of Shane Woods

with a dangerous weapon, in violation of Iowa Code section 708.6; felon in

possession of a firearm, in violation of Iowa Code section 724.26(1); willful injury

causing serious injury to Shane Woods, in violation of Iowa Code
 6

section 708.4(1); and going armed with intent, in violation of Iowa Code

section 708.8. The State also pursued a sentencing enhancement under Iowa

Code section 902.7, which required the district court to impose a mandatory

minimum sentence upon a finding that Mong used a dangerous weapon during

the commission of a forcible felony. At the beginning of trial, the State dismissed

the charge of felon in possession of a firearm.

The party’s respective theories of the case were presented clearly to the

jury. The State’s theory was one of transferred intent: Mong attempted to shoot

Martin, missed Martin, and inadvertently shot and injured Shane. The district

court instructed the jury on this theory. The prosecutor clearly explained the

theory and the instruction to the jury during closing argument:

[T]here is what is called “transferred intent.” Read it. It means you
become liable. So if your intent is against A and you hit B, you get
prosecuted for hitting B. That’s the law. Not because [I] said it, but
you have an instruction that says that.

Mong’s theory of the case did not challenge transferred intent but instead

challenged the underlying conduct. Indeed, he agreed with the prosecutor on the

transferred intent issue. His counsel explained as much during closing

argument:

[Y]ou’re going to see in many different places in your marshaling
instructions that Defendant specifically intended to cause the death
of Shane Woods as one of the elements. And you all know that hasn’t
been shown. Every time you see that, you know there wasn’t the
specific intent to do anything to Shane Woods.

....

So it has to be Ricco Martin, ladies and gentlemen. It has to
be Ricco Martin under the “transferred intent” theory, that there was
 7

a specific intent. There’s just not enough evidence. The evidence,
ladies and gentlemen, shows the specific intent to hide.

On this point, Mong wholly denied he was in possession of a gun or shot at

anyone. As his counsel put it, “What we are denying is that my client had a gun

that day. And we are denying that my client shot a gun that day.” Mong argued

Woods was shot by Henlon or accidentally by Todd.

The jury resolved this factual dispute in favor of the State. The jury found

Mong guilty of the attempted murder of Woods, intimidation of Woods with a

dangerous weapon, and going armed with intent. With respect to each charge,

the jury answered a special interrogatory related to the sentencing enhancement

and found Mong “was in the immediate possession and control of a dangerous

weapon, displayed a dangerous weapon in a threatening manner or was armed

with a dangerous weapon.” The jury acquitted Mong of willful injury causing

serious injury but found him guilty of the lesser included offense of willful injury

causing bodily injury.

II.

We first address Mong’s challenge to the jury selection process. The Sixth

Amendment to the United States Constitution guarantees the right to “an

impartial jury of the state and district wherein the crime shall have been

committed.” U.S. Const. amend VI. The Iowa Constitution guarantees the right

to a “trial by an impartial jury.” Iowa Const. art. I, § 10. The United States

Supreme Court and this court have held the constitutional right to “an impartial

jury” includes the right to a jury “drawn from a fair cross-section of the
 8

community.” Taylor v. Louisiana, 419 U.S. 522, 530 (1975); State v. Plain, 898

N.W.2d 801, 821 (Iowa 2017).

Under controlling precedents, a defendant establishes a prima facie

violation of the fair-cross-section right by proving the following: (1) a group

alleged to have been excluded from the jury pool is a distinctive group in the

community; (2) the distinctive group’s representation in the jury pool is not “fair

and reasonable” when compared to the group’s percentage in the community;

and (3) the distinctive group’s underrepresentation in the jury pool “is due to

systematic exclusion of the group in the jury-selection process.” Plain, 898

N.W.2d at 822 (quoting Duren v. Missouri, 439 U.S. 357, 364 (1979)). The

defendant has the burden of proving a violation of his fair-cross-section right.

Id. at 821–22. The “inability to establish any one of the three . . . elements is

fatal to a defendant’s fair-cross-section challenge.” State v. Williams, 972 N.W.2d

720, 724 (Iowa 2022).

During trial Mong initially raised a challenge to the composition of the jury

panel. He noted that only one of forty jurors on the panel was African-American

and that this underrepresented the African-American population in the county.

Mong argued that “we need to have an appropriate level of African-Americans

represented within this panel.” He requested as a remedy that the district court

“include additional African-American jurors, specifically on this panel” or “[p]ick

a new panel.” The district court denied Mong’s challenge to the jury panel.

The district court did not err in denying Mong’s fair-cross-section

challenge to the jury panel. Our cases recognize the fair-cross-section right
 9

extends only “to the jury pool” and not to the jury panel or the petit jury. State v.

Wilson, 941 N.W.2d 579, 593 (Iowa 2020). “The jury pool refers to members of

the community summoned for jury duty and reporting to the courthouse for a

particular time period. The jury panel refers to members of the pool directed to

a particular courtroom after they arrive at the courthouse to serve as possible

jurors for a specific trial.” State v. Plain, 969 N.W.2d 293, 294–95 (Iowa 2022)

(citation omitted). The petit jury “refers to the group actually selected for a

specific trial and generally given the power to decide questions of fact and return

a verdict in the case.” Id. at 295. We decline Mong’s request to extend our

fair-cross-section jurisprudence to challenges to the jury panel.

Although Mong’s initial challenge was to the jury panel, he later raised a

challenge to the jury pool. After the district court denied Mong’s challenge to the

jury panel, the district court stated it would provide Mong with biographical

information regarding the jury pool and provide Mong the opportunity to present

additional evidence to support a fair-cross-section challenge to the jury pool. The

district court directed the jury clerk to provide Mong with the relevant

biographical information. Mong was given the opportunity to review the

information. The next day, Mong reported that five percent of the jury pool was

African-American compared to seven percent of the population in the county.

When the district court asked whether Mong had “evidence in regards to

systematic exclusion,” Mong’s counsel replied, “Nothing other than what we’ve

already discussed yesterday . . . with respect to our argument.” In the absence
 10

of evidence, the district court found Mong failed to prove systematic exclusion

and denied Mong’s jury pool challenge.

The district court correctly denied Mong’s challenge to the jury pool. Mong

had the burden of production and persuasion in establishing a prima facie

violation of his fair-cross-section right. See Plain, 898 N.W.2d at 821–22. To

prove systematic exclusion, Mong was required to produce evidence that any

alleged “underrepresentation resulted from a particular feature (or features) of

the jury selection system.” Williams, 972 N.W.2d at 724. Proof that

underrepresentation resulted from a particular feature or features of the jury

selection system will “almost always require expert testimony to (1) identify ‘the

precise point of the juror summoning and qualification process in which

members of distinctive groups were excluded from the jury pool’ and (2) offer ‘a

plausible explanation of how the operation of the jury system resulted in their

exclusion.’ ” State v. Lilly (Lilly II), 969 N.W.2d 794, 799 (Iowa 2022) (quoting

State v. Lilly (Lilly I), 930 N.W.2d 293, 307 (Iowa 2019)).

Mong failed to meet his evidentiary burden to prove systematic exclusion.

Mong “called no expert witness whatsoever, let alone one that pinpointed the

procedural step in which African-Americans were excluded and offered a

plausible explanation for how the summoning and qualification process brought

it about.” Lilly II, 969 N.W.2d at 799. When the district court asked for evidence

in support of the claim, Mong’s counsel responded, “I don’t have evidence of

that.” Instead, counsel argued systematic exclusion is difficult to prove and “is

an unfair test.” Even on appeal, Mong does not identify the precise feature or
 11

features in the jury-selection process that allegedly resulted in systematic

exclusion. Instead, he argues the alleged disparity between African-Americans

in the jury pool and the general population is sufficient, in and of itself, to

establish systematic exclusion. We disagree. Mong’s failure to present evidence

defeats his fair-cross-section claim. See Williams, 972 N.W.2d at 724–25; Lilly I,

930 N.W.2d at 307 (“Mere speculation about the possible causes of

underrepresentation will not substitute for a credible showing of evidence

supporting those allegations.” (quoting Paula Hannaford-Agor, Systematic

Negligence in Jury Operations: Why the Definition of Systematic Exclusion in Fair

Cross Section Claims Must Be Expanded, 59 Drake L. Rev. 761, 790–91 (2011))).

III.

We next address the sufficiency of the evidence supporting Mong’s

convictions. “This court reviews sufficiency of evidence claims for the correction

of errors at law.” State v. Jones, 967 N.W.2d 336, 339 (Iowa 2021). “[W]e are

highly deferential to the jury’s verdict. The jury’s verdict binds this court if the

verdict is supported by substantial evidence.” Id. “Substantial evidence is

evidence sufficient to convince a rational trier of fact the defendant is guilty

beyond a reasonable doubt.” Id. “In determining whether the jury’s verdict is

supported by substantial evidence, we view the evidence in the light most

favorable to the State, including all ‘legitimate inferences and presumptions that

may fairly and reasonably be deduced from the record evidence.’ ” Id. (quoting

State v. Tipton, 897 N.W.2d 653, 692 (Iowa 2017)).
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A.

The doctrine of transferred intent is well established in Iowa. Only several

years after the Iowa Constitution was adopted, this court explained that “[t]he

wrong intended, but not done, and the wrong done, but not intended, coalesce,

and together constitute the same offense.” Ruhl, 8 Iowa at 451 (quoting Joel

Prentiss Bishop, Commentaries on the Criminal Law § 254, at 233 (1st ed. 1856)).

In a later case, a defendant was charged with murder after she fired a revolver

at her intended target, missed her intended target, and inadvertently killed the

target’s wife. State v. Huston, 174 N.W. 641, 642 (Iowa 1919). This court affirmed

the conviction, explaining criminal intent follows the bullet wherever it goes:

The evidence is quite abundant to show that the defendant, with
malice aforethought, did have specific intent to kill Charles Davis.
This was her malice and this her intent. The malice and intent which
started the bullet is deemed in law to have followed it wherever it
went. The fact that the bullet hit an unintended mark will not excuse
the malice and intent that started it. The killing of Clora Davis by
this bullet being shown, it was enough to show that the defendant
fired it with malice aforethought and a specific intent to kill Charles
Davis. There was therefore no lack of proof of the elements of the
crime of murder in the second degree.

Id. (citation omitted).

Iowa’s courts have repeatedly applied the doctrine of transferred intent to

impose liability where a criminal defendant acts with intent to kill or harm one

person but inadvertently kills or harms an unintended person. See, e.g., State v.

Harlow, No. 15–1322, 2016 WL 4384690, at *1 (Iowa Ct. App. Aug. 17, 2016)

(affirming conviction for assault on baby where defendant intended to assault

mother and accidentally struck baby and gave baby black eye); State v. Seats,

No. 09–1687, 2010 WL 5050571, at *3 (Iowa Ct. App. Dec. 8, 2010) (“A
 13

defendant’s malice aforethought and specific intent toward the intended victim

is relevant evidence to support a conviction of murder when an innocent

bystander is the actual victim.”); Lewis v. State, No. 07–0553, 2008 WL 141155,

at *4 (Iowa Ct. App. Jan. 16, 2008) (affirming attempted murder conviction on

aiding and abetting theory where defendant participated in drive-by shooting

that missed intended target and injured another).

Most relevant here is the case of State v. Alford, in which this court

affirmed a conviction for attempted murder assault. 151 N.W.2d 573, 574 (Iowa

1967), overruled on other grounds by State v. Bester, 167 N.W.2d 705 (Iowa

1969). In Alford, the defendant got into a fight with a man named Jerry Overton,

and the “defendant got the worst of it.” Id. After the fight, the licked defendant

and his brother got in their car and drove away. Id. Five minutes later, the

defendant returned with a gun. Id. The defendant fired a shot at Overton, missed,

and inadvertently shot his brother, Richard, in the cheek and ear. Id. The

defendant was convicted of assault with intent to commit murder with respect

to Richard, the unintended but actual victim of the shooting. Id. This court

rejected the defendant’s contention that he lacked any intent toward Richard,

explaining it was “not . . . necessary to prove the malice aforethought was

directed toward the person actually shot.” Id. We further explained, under the

doctrine of transferred intent, there is no requirement “that the intent to commit

murder be directed toward the person actually injured.” Id.1

1We acknowledge that “[j]urisdictions are split over whether transferred intent can be
applied in attempted murder cases.” State v. Geter, 864 S.E.2d 569, 573 (S.C. Ct. App. 2021).
Many jurisdictions, like Iowa, apply the doctrine of transferred intent in attempted murder cases
 14

B.

With that background, we directly address Mong’s challenge to his

convictions for attempted murder, intimidation with a dangerous weapon, and

willful injury causing bodily injury. Mong argues that the marshaling

instructions for attempted murder, intimidation with a dangerous weapon, and

willful injury required proof Mong intended to kill or injure Shane Woods and

that there was no evidence he had any intent with respect to Shane Woods.

Specifically, Instruction No. 17 for attempted murder required proof Mong

“specifically intended to cause the death of Shane Woods.” Instruction No. 23 for

intimidation with a dangerous weapon required proof Mong “shot the dangerous

weapon with the specific intent to injure or cause fear or anger in Shane Woods.”

Instruction No. 27 for willful injury required proof that Mong “specifically

intended to cause a serious injury to Shane Woods.”

Mong ignores that the district court specifically instructed the jury that

Mong’s intent to harm one victim transfers to and is “transposed to the other.”

Instruction No. 16 provided:

Under the doctrine of transferred intent, once the intent to
inflict harm on one victim is established, the criminal intent
transfers to any other victim who is actually assaulted. A party is
liable for a wrongful act, where there exists a criminal intent,
although the act done, is not that which was intended. The wrongful

based on the public policy of punishing those with criminal intent. See, e.g., State v.
Rodriguez-Gonzales, 790 P.2d 287, 288 (Ariz. Ct. App. 1990); People v. Hill, 658 N.E.2d 1294,
1297–98 (Ill. App. Ct. 1995); Blanche v. State, 690 N.E.2d 709, 712 (Ind. 1998); State v. Thomas,
53 So. 868, 869–70 (La. 1910); State v. Ford, 539 N.W.2d 214, 229 (Minn. 1995) (en banc);
Ochoa v. State, 981 P.2d 1201, 1205 (Nev. 1999); State v. Gillette, 699 P.2d 626, 636 (N.M. Ct.
App. 1985); State v. Dean, 54 N.E.3d 80, 116 (Ohio 2015). Other jurisdictions disallow it. See
Geter, 864 S.E.2d at 573–75 (discussing issue and cases); Cockrell v. State, 890 So. 2d 174, 176–
81 (Ala. 2004) (discussing issue and cases). Mong has not questioned the application of the
transferred intent doctrine to inchoate crimes, including attempted murder.
 15

intent to do one act, is transposed to the other, and constitutes the
same offense.

The word “transpose” means “to change the relative place or normal order of”

two or more things. Transpose, Merriam-Webster’s Collegiate Dictionary (10th ed.

2002). As instructed here, Martin and Woods are interchangeable, and proof of

intent to kill or injure Martin is proof of intent to kill or injure Shane Woods. See

Blow v. Commonwealth, 665 S.E.2d 254, 258 (Va. Ct. App. 2008) (“The doctrine

of transferred intent permits a fact finder to transpose a defendant’s criminal

intent to harm an intended victim to another unintended, but harmed, victim.”).

With that understanding, when the evidence is viewed in the light most

favorable to the jury’s verdict, there is substantial evidence Mong specifically

intended to cause the death of and/or injure Martin and, by transposition, Shane

Woods. Mong and Cobb were in an on-again, off-again relationship. Mong was

jealous of Cobb’s relationship with Martin. Mong sent thirty to forty threatening

text messages to Martin. See, e.g., State v. Troutman, No. 17–0277, 2018 WL

1182623, at *3 (Iowa Ct. App. Mar. 7, 2018) (explaining threatening text

messages were, among other things, substantial evidence of intent to support

first-degree murder conviction). In the days leading up to the shooting, Mong

told Martin that he “was going to shoot him.” See, e.g., State v. Burton,

No. 19–1754, 2021 WL 2453365, at *15 (Iowa Ct. App. June 16, 2021)

(concluding statement “bitch I’ll shoot you” was substantial evidence in support

of murder conviction). After the shooting, Mong left for Las Vegas with no notice

and no apparent intent to return despite having a full-time job and dependents

in Iowa. See, e.g., State v. Marsh, 392 N.W.2d 132, 134 (Iowa 1986) (stating
 16

evidence of flight may be introduced at trial and used by counsel in argument as

evidence of consciousness of guilt); State v. Wimbush, 150 N.W.2d 653, 656 (Iowa

1967) (noting “[m]any acts of a defendant after the crime seeking to escape the

toils of the law are received as admissions by conduct, constituting

circumstantial evidence of consciousness of guilt” such as flight (quoting

Charles T. McCormick, McCormick on Evidence § 248, at 532–33 (1st ed. 1954))).

Most important, Mong arrived at the Hines’s residence without provocation

and fired at least one shot in Martin’s direction. In the special interrogatories,

the jury specifically found Mong “was in the immediate possession and control

of a dangerous weapon, displayed a dangerous weapon in a threatening manner

or was armed with a dangerous weapon.” “[T]he general rule is that one who

arms himself with the express purpose of shooting another cannot ordinarily

claim the elements of” murder or attempted murder are lacking. State v. Smith,

240 N.W.2d 693, 695 (Iowa 1976); see State v. Green, 896 N.W.2d 770, 780 (Iowa

2017) (stating a “rational juror could infer that one who uses a dangerous

weapon intends to cause physical harm, and even to kill”); State v. Clarke, 475

N.W.2d 193, 197 (Iowa 1991) (holding that firing two shots at someone was

substantial evidence of intent sufficient to support convictions for attempted

murder and willful injury); State v. Mart, 20 N.W.2d 63, 66 (Iowa 1945) (“We have

held repeatedly that an intent to kill may be inferred from the use of a deadly

weapon in a deadly manner. Such intent may be thus inferred though the wound

inflicted does not prove fatal.” (citation omitted)).
 17

C.

Mong raises an additional challenge to the sufficiency of the evidence

supporting his conviction for intimidation with a dangerous weapon. With

respect to this charge, the jury was instructed the State had to prove: (1) Mong

“intentionally shot a dangerous weapon within an assembly of people”;

(2) “Shane Woods actually experienced fear of serious injury and his fear was

reasonable under the existing circumstances”; and (3) Mong “shot the dangerous

weapon with the specific intent to injure or cause fear or anger in Shane Woods.”

Mong contends that there is no evidence Shane Woods actually experienced fear.

We agree this element was not supported by substantial evidence even

when the evidence is viewed in the light most favorable to the jury’s verdict.

Shane testified he had “no problems with [Mong] at all.” When Mong arrived and

approached the group, Shane saw the gun. Shane testified:

I turned around again. I didn’t run because I wasn’t too worried. I
had no beef with him. I didn’t think I had a problem. So I just turned
around to walk back up towards the house and heard a shot, and it
hit me on the left side of my back. It come out of my arm.

Shane’s testimony showed he did not experience fear.

The doctrine of transferred intent does not resolve the situation. The

doctrine of transferred intent transfers or transposes the defendant’s criminal

intent to harm person A to the unintended but actual victim, person B. The

transferred intent doctrine does not transfer or transpose the intended victim

person A’s state of mind or alleged state of mind to the unintended but actual

victim, person B. Shane Woods testified he was not too worried upon seeing Mong
 18

with a weapon. He did not actually experience fear of serious injury. This

conviction must be reversed due to insufficient evidence.

IV.

For the foregoing reasons, we affirm Mong’s convictions for attempted

murder, willful injury causing bodily injury, and going armed with intent. We

vacate the judgment of conviction and sentence for the charge of intimidation

with a dangerous weapon and remand to the district court for dismissal of that

charge.

DECISION OF COURT OF APPEALS AFFIRMED IN PART AND

VACATED IN PART; DISTRICT COURT JUDGMENT AFFIRMED IN PART,

VACATED IN PART, AND REMANDED.