IN THE COURT OF APPEALS OF IOWA
No. 21-1100 Filed October 5, 2022
STATE OF IOWA, Plaintiff-Appellee,
vs.
DIAVANTAE STEPPHON DAVIS, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Des Moines County, Wyatt Peterson,
Judge.
Diavantae Davis appeals his convictions for murder in the first degree,
intimidation with a dangerous weapon with intent to injure or provoke, and going
armed with intent. AFFIRMED.
S.P. DeVolder of The DeVolder Law Firm, P.L.L.C., Norwalk, and William
L. Kutmus and Trever Hook of Kutmus, Pennington & Hook, P.C., West Des
Moines, for appellant.
Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant Attorney
General, for appellee.
Heard by Bower, C.J., Tabor, J., and Gamble, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2022). 2
GAMBLE, Senior Judge.
Diavantae Davis appeals his convictions for murder in the first degree,
intimidation with a dangerous weapon with intent to injure or provoke, and going
armed with intent. He argues the district court erred in instructing the jury on his
duties with respect to his justification defense and the evidence is insufficient to
support his conviction for murder in the first degree. We reject his arguments and
affirm.
I. Background Facts and Proceedings
On the evening of September 7, 2019 and into the early morning hours of
September 8, a group of housemates hosted a party at their residence in
Burlington, Iowa. Alexandria, one of the party’s hosts and a resident of the home,
estimated about forty-five people were at the party, including Reynaldo Villarreal.
Most of the partygoers were in the yard of the home. At a certain point, Christian
appeared at the party. Christian was involved in an issue during a previous party
at the home earlier that summer. Alexandria met Christian outside. She told him
he was not welcome at the party and he needed to leave the premises. Christian
then left the party while expressing his disagreement.
Christian soon returned to the party accompanied by Timothy. Alexandria
met the pair outside to tell them to leave the party. She thought Timothy was being
aggressive in refusing to leave. So she asked Villarreal for assistance in
convincing the pair to leave. Villarreal also told the pair that Christian was not
allowed at the party and they needed to leave. Christian and Timothy insisted on
staying and argued with Villarreal. A crowd of partygoers began to form around
them on the landing in front of the house as the argument became more heated. 3
Davis and two of his friends arrived at the party during this argument.
Davis’s group joined the crowd, standing behind Christian and Timothy. Davis
inserted himself into the already heated situation, siding with Christian and
Timothy. Christian and Timothy both testified Villarreal showed them he had a
handgun in his belt early in the argument and he later held the handgun at his side
without pointing it at anyone. Arturo, another partygoer, testified Villarreal pulled
out a handgun during the argument, loaded a round in the chamber, and pointed
it straight down at his side. Other partygoers testified they never saw Villarreal
with a firearm—or even knew he had one—during the party. Alexandria testified
Davis was the only one to mention having a firearm during the argument. Arturo
testified Davis made threats during the argument about his group being “killers.”
Another witness similarly testified Davis said “they ain’t no real killers; I’m a real
killer.” Eventually, everyone in Christian’s group—including Davis—started to
leave. Davis slipped down a hill in the yard next to the front steps. As Villarreal
stood on the landing and continued to tell them to leave, Davis fired his handgun
six times. Villarreal fell forward down the hill.
Burlington police responded to the home around 1:40 a.m. on September 8.
Officers found a group of people in front of the home gathered around Villarreal.
Villarreal was on the ground and unresponsive with an apparent gunshot wound.
He was transported to the hospital and pronounced dead at approximately
2:13 a.m. Officers eventually found a handgun with a round in the chamber in the
grass next to the spot where they found Villarreal’s body. After checking serial
numbers, officers determined the handgun belonged to Luis, one of the residents
of the home where the party occurred. Luis testified he did not know how Villarreal 4
obtained his handgun that night. An autopsy later confirmed Villarreal sustained a
gunshot wound to his chest. Detectives spent a substantial amount of time over
the next couple of days searching the wooded area near the crime scene using a
metal detector in an attempt to find the firearm used in the homicide. The weapon
used to shoot Villarreal was never recovered.
After speaking to witnesses and reviewing video from the home’s security
system, officers identified Davis as the shooter. On September 9, Davis voluntarily
went to the Burlington police department for an interview. During the interview,
Davis acknowledged walking up to the party. But he claimed he left the party when
he saw a group of people arguing, including one person waving a handgun. He
claimed he was down the street and walking away from the home when he heard
gunshots. He also denied owning or possessing a firearm. At the conclusion of
the interview, officers arrested Davis for Villarreal’s killing.
Davis proceeded to a jury trial on June 15 to 25, 2021. The State’s evidence
included testimony from several witnesses at the party and members of law
enforcement. Davis testified in his defense. During trial, Davis admitted owning
the handgun he used to shoot Villarreal and claimed he was justified in doing so.
According to Davis’s testimony, he and his friends tried going to the party but
Villarreal and others at the party stopped them in the front yard. Villarreal’s group
told Davis’s group they were not welcome. Villarreal specifically said “you n-----s[1]
need to leave” while holding a handgun at his side. After some arguing, Davis and
his group started to leave. Davis slipped and fell. As he got up, Davis heard
1 Davis and his two friends who were with him that night are African American. 5
Villarreal cock his handgun. Davis reached in his pocket and grabbed his gun.
When Davis turned to look at him, Villarreal said “you guys need to leave or I’m
going to use it.” Davis was backing up to the street. Villarreal moved his weapon
back and forth like he was turning off the safety. Villarreal then pointed his gun in
the direction of Davis and his group. Fearing Villarreal was about to fire upon his
group, Davis fired multiple rounds, hitting Villarreal.
The jury rejected Davis’s justification claim and found him guilty of murder
in the first degree, intimidation with a dangerous weapon with intent to injure or
provoke, going armed with intent, and possession of a firearm by a felon. The
district court sentenced him to life in prison for murder, ten years in prison for
intimidation, five years in prison for going armed, and five years in prison for
possession of a firearm, with the latter three sentences running consecutively to
each other and concurrently with the life-in-prison sentence. Davis appeals his
convictions for murder, intimidation, and going armed.2
II. Standard of Review
We review “challenges to jury instructions for the correction of legal error.
In conducting our review, we review the instructions ‘as a whole to determine their
accuracy.’” State v. Mathis, 971 N.W.2d 514, 519 (Iowa 2022) (citations omitted).
“We review the trial court’s instructions ‘to determine whether they correctly state
the law and are supported by substantial evidence.’” State v. Walker, 600 N.W.2d
606, 608 (Iowa 1999) (quoting State v. Thompson, 570 N.W.2d 765, 767 (Iowa
1997)).
2 Davis does not appeal his conviction for being a felon in possession of a firearm. 6
We review claims a verdict is not supported by substantial evidence for
correction of errors at law. Mathis, 971 N.W.2d at 516. “Substantial evidence is
evidence sufficient to convince a rational trier of fact the defendant is guilty beyond
a reasonable doubt.” Id. at 516–17. “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. at 517
(quoting State v. Tipton, 897 N.W.2d 653, 692 (Iowa 2017)).
III. Analysis
A. Jury instruction—Justification
1. Substantial Evidence
“Justification is a statutory defense that permits a defendant to use
reasonable force to defend himself or herself.” State v. Lorenzo Baltazar, 935
N.W.2d 862, 869 (Iowa 2019). “A person is justified in the use of reasonable force
when the person reasonably believes that such force is necessary to defend
oneself or another from any actual or imminent use of unlawful force.” Iowa Code
§ 704.3 (2019). “Reasonable force” is
that force and no more which a reasonable person, in like circumstances, would judge to be necessary to prevent an injury or loss and can include deadly force if it is reasonable to believe that such force is necessary to avoid injury or risk to one’s life or safety or the life or safety of another, or it is reasonable to believe that such force is necessary to resist a like force or threat.
Id. § 704.1(1). The marshaling instructions for murder, intimidation, and going
armed all required the State to prove by evidence beyond a reasonable doubt that 7
Davis acted without justification in order to find him guilty of each respective
charge.
“As with any affirmative defense, the district court must instruct the jury on
justification if substantial evidence supports the theory.” State v. Kuhse, 937
N.W.2d 622, 628 (Iowa 2020). “The defendant bears the initial burden of producing
sufficient evidence to support the instruction.” Id. “Once that threshold is met, the
burden shifts to the State to prove lack of justification beyond a reasonable doubt.”
Id. “Iowa law requires a court give a requested instruction as long as the instruction
is a correct statement of law, is applicable to the case, and is not otherwise
embodied elsewhere in the instructions.” State v. Kraai, 969 N.W.2d 487, 492
(Iowa 2022) (citation omitted).
In response to Davis’s claim of justification, the district court issued a series
of instructions on justification. As relevant here, instruction no. 28A states in its
entirety:
After using deadly force, the defendant had the following duties: 1. To not intentionally destroy, alter, conceal, or disguise physical evidence relating to the defendant’s use of deadly force; 2. To not intentionally intimidate a witness into refusing to cooperate with an investigation of the defendant’s use of deadly force; and 3. To not intentionally induce another person to alter testimony about the defendant’s use of deadly force. You may consider whether the defendant complied with these duties when deciding whether deadly force was justified.
Davis objected to instruction no. 28A, specifically claiming it was not
supported by substantial evidence.3 See State v. Schuler, 774 N.W.2d 294, 297
3 Our supreme court found an instruction based on Iowa Code section 704.2B(1) impermissibly violated the defendant’s right to remain silent under the Fifth 8
(Iowa 2009) (stating jury instructions must be “correct statements of the law
and . . . supported by substantial evidence” (quoting State v. Liggins, 557 N.W.2d
263, 267 (Iowa 1996))).
Instruction no. 28A reflects Iowa Code section 704.2B(2), which states:
The person using deadly force shall not intentionally destroy, alter, conceal, or disguise physical evidence relating to the person’s use of deadly force, and the person shall not intentionally intimidate witnesses into refusing to cooperate with any investigation relating to the use of such deadly force or induce another person to alter testimony about the use of such deadly force.
Because section 704.2B and instruction no. 28A are substantively identical, the
instruction is a correct statement of law. See Kraai, 969 N.W.2d at 491.
However, Davis maintains the court erred by giving instruction no. 28A
because there is no evidence he violated any of the enumerated duties. The State
concedes “there was little evidence” Davis either intimidated a witness into refusing
to cooperate or induced another person to alter their testimony. Thus, the State
apparently concedes there was no evidence to support finding Davis violated two
of the three duties enumerated in instruction no. 28A. However, the State argues
Davis’s statements during his interview at the police station violated his duty not to
intentionally conceal physical evidence. And the State contends the district court
Amendment to the United States Constitution. State v. Gibbs, 941 N.W.2d 888, 894–901 (Iowa 2020). To the extent Davis claims instruction no. 28A also violates his Fifth Amendment rights, he did not raise this argument below so it is not preserved for our review. See State v. Zacarias, 958 N.W.2d 573, 587 (Iowa 2021) (refusing to consider the defendant’s constitutional claim after the defendant failed to raise the claim in district court). 9
is required to instruct on the duties of section 704.2B(2) in every case where the
defense of justification involves the use of deadly force.4
In 2017 the Iowa legislature amended the justification statute to include new
stand-your-ground provisions. 4 Robert R. Rigg, Iowa Practice Series: Criminal
Law § 2:21 (Oct. 2021 update). The amendments expanded the defense of
justification by deleting existing language regarding alternative course of action
and adding provisions “for the erroneous estimation of the danger presented and
force necessary as long as there is a ‘reasonable basis for the belief’ and the
person acts ‘reasonably in the response’ to a perceived threat.” Id. (quoting Iowa
Code § 704.1). “Significantly, the amendment provides a person does not have a
duty to retreat as long as a person ‘is not engaged in illegal activity’ and is in a
place where they were ‘lawfully present.’” Id. (quoting Iowa Code § 704.1). In this
context, the legislature added new section 704.2B stating the duties of a person
using deadly force. See 2017 Iowa Acts ch. 69, § 40. Section 704.2B(2) provides:
The person using deadly force shall not intentionally destroy, alter, conceal, or disguise physical evidence relating to the person’s use of deadly force, and the person shall not intentionally intimidate
4 The State relies on commentary to the Iowa Criminal Jury Instructions. See Iowa State Bar Ass’n, Iowa Crim. Jury Instruction 400.1 cmt. (2021) (stating if deadly force was used, uniform instruction “400.7 (Deadly Force—Duties) must then be used.”). Unlike other instructions, the comment to uniform instruction 400.7 does not require the court to “[u]se only that language that is supported by the evidence.” Compare Iowa State Bar Ass’n, Iowa Crim. Jury Instruction 400.6 cmt. (Deadly Force—Presumptions), with Iowa State Bar Ass’n, Iowa Crim. Jury Instruction 400.7 cmt. (Deadly Force—Duties). While we are not bound by them, “we are slow to disapprove of the uniform jury instructions.” State v. Booth-Harris, 942 N.W.2d 562, 580 (Iowa 2020) (quoting State v. Ambrose, 861 N.W.2d 550, 559 (Iowa 2015)). Instruction no. 28A closely tracks section 704.2B(2) and is identical to uniform instruction 400.7. It is a correct statement of the law. However, as guidance to the bench and bar, we express our disagreement with the commentary suggesting 400.7 must be used in every case involving deadly force regardless of whether it is supported by the evidence. 10
witnesses into refusing to cooperate with any investigation relating to the use of such deadly force or induce another person to alter testimony about the use of such deadly force.
“The law on giving of jury instructions in Iowa is well developed.” Meck v.
Iowa Power & Light Co., 469 N.W.2d 274, 276 (Iowa Ct. App. 1991). “Jury
instructions are designed to explain the applicable law to the jurors so the law may
be applied to the facts proven at trial. Submission of issues that have no support
in the evidence to the jury is error.” Id. (internal citation omitted). “Requested
instructions that are not related to the factual issues to be decided by the jury
should not be submitted even though they may set out a correct statement of the
law.” See Vachon v. Broadlawns Med. Found., 490 N.W.2d 820, 822 (Iowa 1992).
“Evidence is substantial enough to support a requested instruction when a
reasonable mind would accept it as adequate to reach a conclusion.” Bride v.
Heckart, 556 N.W.2d 449, 452 (Iowa 1996).
“In construing statutes, we assume the legislature is familiar with the
existing state of the law when it enacts new legislation.” State v. Adams, 810
N.W.2d 365, 370 (Iowa 2021). “Further, ‘[a] statute will not be presumed to
overturn long-established legal principles, unless that intention is clearly
expressed or the implication to that effect is inescapable.’” Id. (alteration in
original) (citation omitted). In its codification of the duties of a person using deadly
force in section 704.2B(2), we see no clear expression or implication the legislature
intended that courts must instruct juries on these duties if they are not supported
by substantial evidence. Consistent with long-established principles, we conclude
the legislature intended the violation of a duty imposed by this statute must be 11
supported by substantial evidence before it can be properly submitted to a jury
considering the defense of justification.
The State produced no evidence that Davis intimidated a witness into
refusing to cooperate with an investigation of his use of deadly force or that he
intentionally induced another person to alter testimony about his use of deadly
force. Accordingly, we find there is not substantial evidence to support paragraphs
2 and 3 of Instruction 28A.
Further, while there is evidence Davis lied during his police interview about
his use of a firearm and the police never located the gun, that evidence alone is
not sufficient to support a finding that Davis intentionally acted to destroy, alter,
conceal, or disguise physical evidence relating to his use of deadly force as
required by paragraph 1 of instruction no. 28A. See Bride, 556 N.W.2d at 452.
There is no evidence that Davis actively hid or concealed the weapon. Cf. State
v. Thornton, 498 N.W.2d 670, 673–74 (Iowa 1993) (finding substantial evidence
where the defendant “left the scene immediately after the shooting” and “[w]ent
home and hid his gun in the basement,” concluding a “jury could rationally believe
these were not the actions of someone who honestly believed he acted in self-
defense”); State v. Jonas, No. 15-1560, 2017 WL 706204, at *5 (Iowa Ct. App.
Feb. 22, 2017) (noting the defendant’s actions were “inconsistent with someone
who was acting in self-defense” because he “avoided the police . . . by lying to
them throughout the initial interviews,” and “disposed of his weapon by throwing it
over a bridge into the river,”); see also State v. Heckethorn, No. 20-0243, 2021 WL
3392802, at *3 (Iowa Ct. App. Aug. 4, 2021) (applying the stand-your-ground
amendments and finding, “After the shooting, Heckethorn fled the scene, 12
concealed the AR-15 in a closet at his mother’s house, and told the police he was
not involved in the shooting. Heckethorn’s behavior after the incident
demonstrates his consciousness of guilt”). Again, “[t]he legislature is presumed to
know the state of the law, including case law, at the time it enacts a statute.” State
v. Jones, 298 N.W.2d 296, 298 (Iowa 1980). Based upon our case law, the
codification of a defendant’s duty to not intentionally destroy, alter, conceal, or
disguise physical evidence relating to his use of deadly force in section 704.2B(2)
requires an affirmative act beyond a false denial of participation in the crime during
a police interview.
The State produced no evidence that Davis did anything to hide or get rid
of the gun. The police did not ask Davis if he hid the gun when he initially denied
involvement in the shooting, and the prosecutor did not cross-examine Davis about
hiding or disposing of the weapon at trial. And the State did not introduce any
other evidence indicating Davis intentionally destroyed, altered, concealed, or
disguised the firearm used in the homicide. Therefore, we conclude instruction no.
28A was not supported by substantial evidence and the district court erred in
submitting it. See Meck, 469 N.W.2d at 276.
2. Harmless Error
The State argues any error in instruction no. 28A was harmless. In Kraai,
969 N.W.2d at 496–97, our supreme court stated the harmless error standard:
“Error in giving or refusing to give a jury instruction does not warrant reversal unless it results in prejudice to the complaining party.” When a court erroneously gives or refuses a jury instruction, “we presume prejudice and reverse unless the record affirmatively establishes there was no prejudice.” “When the error is not of constitutional magnitude, the test of prejudice is whether it sufficiently appears that the rights of the complaining party have 13
been injuriously affected or that the party has suffered a miscarriage of justice.” The presumption of prejudice is overcome when the jury received “strong evidence” of a defendant’s guilt.
(Internal citations omitted.)
Instruction no. 28A did not prejudice Davis. While the instruction
enumerated the duties of a person using deadly force, it provided, “You may
consider whether the defendant complied with these duties when deciding whether
deadly force was justified.” The district court allowed the parties to argue the
reasonable inferences to be drawn from this instruction. No inference adverse to
Davis can be reasonably drawn from the lack of evidence that he breached any of
the enumerated duties of instruction no. 28A. To the contrary, compliance with
these duties implies that deadly force was justified.
But more importantly, neither party raised any of the three enumerated
duties during their arguments and Davis’s compliance with these duties was not
the fighting issue at trial. The issue was whether, under the circumstances existing
at the time of the incident, the State proved Davis did not have a reasonable belief
deadly force was necessary to defend himself from imminent danger of being shot
by Villarreal. See Lorenzo Baltazar, 935 N.W.2d at 869. On this point, the State
produced strong evidence Davis was not justified. Davis injected himself into a
heated situation between Timothy, Christian, and Villarreal. During the
confrontation, Davis announced he was armed and he was a “killer.” Arturo
testified Villarreal cocked his gun and pointed it down. Villarreal continued to tell
Davis and his group to leave. Davis slipped on the hill, got up, pulled his gun,
turned around, raised his weapon, lowered it, raised it again, and shot Villarreal.
While Davis testified that after he slipped, he heard Villarreal cock his gun and that 14
Villarreal pointed it in his direction as he was leaving, the witnesses did not
corroborate Davis’s version of the events. And the surveillance video
demonstrated that Villarreal was not pointing a gun at Davis’s group when Davis
shot him. See Gibbs, 941 N.W.2d at 900 (“This was the rare case where the
murder was captured on video.”).
We conclude strong evidence established Davis did not have a reasonable
belief deadly force was necessary to defend himself from imminent danger of being
shot by Villarreal. And since this was the fighting issue, we are not convinced the
jury was distracted by the duties of a person using deadly force listed in instruction
no. 28A. See Rivera v. Woodward Res. Ctr., 865 N.W.2d 887, 904 (Iowa 2015)
(finding new trial was not warranted where erroneous instruction did not mislead
or confuse the jury in light of the totality of the instructions). Davis was not
injuriously affected by instruction no. 28A. It did not result in a miscarriage of
justice. See Kraai, 969 N.W.2d at 496-97.
B. Substantial Evidence of Premeditation and Specific Intent
The marshaling instruction for murder in the first degree required the jury to
find Davis “acted willfully, deliberately, premeditatedly and with specific intent to
kill” Villarreal. See Iowa Code § 707.2(1)(a) (setting forth the elements of murder
in the first degree). Davis argues the record does not contain substantial evidence
he acted with premeditation and a specific intent to kill Villarreal.
“To premeditate is to think or ponder upon a matter before action.” State v.
Talbbet, 590 N.W.2d 732, 734 (Iowa Ct. App. 1999). “Our first-degree murder
cases have long held that the use of a deadly weapon supports an inference of
malice, and when accompanied by an opportunity to deliberate, also supports an 15
inference of deliberation and premeditation.” State v. Reeves, 636 N.W.2d 22, 25
(Iowa 2001); see also State v. Green, 896 N.W.2d 770, 780 (Iowa 2017) (“[A]
rational juror could infer that one who uses a dangerous weapon intends to cause
physical harm, and even to kill.”); State v. Frazer, 267 N.W.2d 267 N.W.2d 34, 39
(Iowa 1978) (“The use of a deadly weapon accompanied by an opportunity to
deliberate, even for a short time, is evidence of malice, deliberation, and
premeditation.”).
“[T]he term ‘specific intent’ is used to ‘designate a special mental element
which is required above and beyond any mental state required with respect to the
actus reus of the crime.” State v. Buchanan, 549 N.W.2d 291, 294 (Iowa 1996)
(citation omitted). “Specific intent not only requires the defendant to be aware of
doing an act, but doing it with a specific purpose in mind.” State v. Guerrero
Cordero, 861 N.W.2d 253, 259 (Iowa 2015), overruled on other grounds by Alcala
v. Marriott Int’l, Inc., 880 N.W.2d 699 (Iowa 2016). “When a person intentionally
uses a deadly weapon in killing a victim, the jury may infer that he had formed the
specific intent to kill.” State v. Wilkins, 346 N.W.2d 16, 20 (Iowa 1984). “[A]n actor
will ordinarily be viewed as intending the natural and probable consequences that
usually follow from his or her voluntary act. State v. Taylor, 689 N.W.2d 116, 132
(Iowa 2004).
Much of the same evidence that convinces us Davis suffered no prejudice
from the erroneous instruction also provides substantial evidence to support his
conviction for first-degree murder. Davis relies on his testimony that he was
justified in shooting Villarreal. A major part of his justification defense was his claim
Villarreal cocked his gun and pointed it at Davis’s group as they tried to leave. 16
Indeed, police found a handgun with a round in the chamber in the grass next to
Villarreal’s body after the shooting. While the witnesses varied in whether they
saw Villarreal display a firearm during the argument, no witness other than Davis
testified Villarreal pointed a firearm at anyone before the shooting.
The security video also conflicts with critical parts of Davis’s testimony. The
security video shows Davis and Villarreal in a heated argument with each other as
part of their respective groups. The two groups continue arguing as Davis and his
group walk away from the home. Davis slips in the grass while walking away.
When Davis reaches the street, he draws his handgun. Davis is the only person
shown in the video clearly holding a firearm, though we recognize it is possible
Villarreal may have held a firearm in a way not caught on video. Davis raises his
weapon toward Villarreal’s group, lowers his weapon, raises his weapon again,
and fires six times. Villarreal then falls forward and tumbles toward the street.
Despite Davis’s claim Villarreal pointed a handgun in his direction, the video does
not show Villarreal holding—much less pointing—a firearm at any time.
Davis’s testimony conflicted with the other evidence in the record, including
his own statements during his interview with police and the testimony of Villarreal’s
friend Arturo. Thus, “the jury was not required to accept all of defendant’s
testimony.” State v. Hall, 214 N.W.2d 205, 210 (Iowa 1974). Putting the evidence
together and viewing it in the light most favorable to the State, the jury could
reasonably conclude Davis took part in a heated argument with Villarreal’s group,
threatened to kill someone with his handgun, walked away while continuing to
argue, raised his handgun, and hesitated before opening fire on Villarreal and his
group. The witness testimony and security video provide substantial evidence to 17
support finding Davis acted with premeditation and specific intent to kill. See
Mathis, 971 N.W.2d at 516–17. These elements of murder in the first degree are
supported by substantial evidence. Id.
IV. Conclusion
The jury instruction about the duties Davis was required to perform in order
to claim a justification defense is a correct statement of law. While it was not
supported by substantial evidence, the error was harmless. The witness testimony
and security video provide substantial evidence to support finding Davis acted with
premeditation and a specific intent to kill. Therefore, we affirm his convictions.
AFFIRMED.