IN THE COURT OF APPEALS OF IOWA
No. 22-1293 Filed January 10, 2024
STATE OF IOWA, Plaintiff-Appellee,
vs.
JAMES WILLIAM THIEL SR., Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Scott County, Patrick A. McElyea,
Judge.
A criminal defendant appeals his two convictions for involuntary
manslaughter. AFFIRMED.
Leon F. Spies of Spies & Pavelich, Iowa City, for appellant.
Brenna Bird, Attorney General, and Timothy M. Hau, Assistant Attorney
General, for appellee.
Heard by Tabor, P.J., Buller, J., and Doyle, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2024). 2
BULLER, Judge.
A jury found James Thiel guilty of two counts of involuntary manslaughter.
The convictions stem from a two-boat crash on the Iowa side of the Mississippi
River. On appeal, Thiel claims the State violated his right to due process by
suppressing two draft diagrams drawn by an expert witness before trial. He also
argues there was insufficient evidence to support his convictions. And he asserts
the verdict was inconsistent and against the weight of the evidence. On our review,
we affirm Thiel’s convictions.
I. Background Facts and Proceedings
One August 2020 afternoon, Craig Verbeke, Anita Pinc, and their black
Labrador Retriever Lily met people for lunch after Sunday church, as was weekly
tradition. On this particular day, the couple dined with family, including two of
Verbeke’s daughters. The group chose that location because it was close to the
Mississippi River, and they planned to boat that afternoon on Pinc’s nineteen-foot
Bayliner speed boat. After lunch, Verbeke and Pinc went out on the Bayliner,
accompanied by Lily. A spectator tubing on the river later described the Bayliner
nearly hitting a rock pile and idling in the path of boat traffic.
Thiel, his wife, their three sons, and an employee’s family had a similar
afternoon. The group got on the Thiel family’s boat—a thirty-five-foot Triton—just
after noon and had lunch upriver. Throughout the day, Thiel’s fifteen-year-old son
was operating the boat. Thiel described his son as “a different breed when it
comes to boating” who “always wanted to jump up in the seat with me and drive.”
Thiel’s son got his boater’s license at twelve, and Thiel thought him to be “an
extremely responsible and capable boater,” with experience operating the Triton. 3
Thiel’s group was joined by some friends in a Scarab jet boat shortly after
lunch. Both groups boated on the river and met up again later in the afternoon
near some sand pits. After that, the Scarab group invited the Triton group to their
cabin for brisket. The Scarab group left “a little bit before” the Triton group, with
Thiel’s son piloting the Triton.
The groups initially took diverging paths: the Triton went down the main
channel of the river, and the Scarab took shallower backwaters. But the two boats
converged before long, as they made their way into LeClaire.
According to the Scarab’s pilot, they were going 45 miles per hour (mph) as
they approached the Riverboat Twilight (Twilight), a large ferry boat near a boat
ramp. Thiel’s son recalled he was piloting the Triton around 40 mph. Thiel
reported he was standing in the back of the boat, behind the console, and wasn’t
giving his son any instructions: his son was “always in control of the boat.”
According to Thiel’s son, the Scarab “was always a ways ahead of” them. Another
passenger on the Scarab echoed this, claiming the Triton was following in the
Scarab’s wake, which is “the safest place to be when you’re driving back.” Thiel
and that passenger both testified the two boats were never side-by-side or racing.
But disinterested witnesses on and around the river that day told a different
story. These witnesses saw the Triton and the Scarab racing as they came into
town—close to shore—with “[p]robably a boat’s distance between each other” and
the Scarab in the lead. The witnesses used varied and colorful language to
describe the racing, but they were unanimous in describing the danger they
perceived on the water: 4
A witness along the waterfront: “I told [the police the Triton and Scarab] were hauling ass . . . .”
A woman sitting on a bench next to the river: “Because the speed of how fast they were going . . . [it] felt like neck and neck, you know what I mean? Like, the one flew by, then the bigger one was right behind it. It just—and it was very excessive, the speed. And like I said I don’t know what the mile per hour is but it was very fast.”
A motorcyclist along the river: “[A]s we were approaching the Twilight there was two boats that came flying by at a high rate of speed next to the river. It actually startled me on the bike. And then at some point in time we heard a noise and the wife tapped me on the shoulder and said, ‘You better turn around.’ So we turned around.”
The motorcycle passenger: “[T]hey were side by side going the same speed and almost like neck and neck. So it appeared to me that they were racing.”
A passenger on another boat on the river: “I mean, for lack of a better way to say it, it seemed like they were almost scissoring at each other, just kind of going at each other, you know, racing and maybe taunting each other.”
Another passenger on that same boat: “[T]hey were going at a good rate of speed. They were moving very fast and what I remember the most is seeing all the multicolored life jackets up in the front of the [Triton]. Appeared to be a bunch of children up in the front. We kind of had a conversation, you know, ‘why would you be driving like that with all those kids in the boat?’”
A teacher eating at a restaurant along the river: “I heard two boats open up which means they were just flooring it. They were going at a high rate of speed and it drew my attention. So I looked over my shoulder and I saw two boats side by side close to each other and close to the shore. And I remember making a comment to my wife, ‘Look at those idiots racing past the boat landing that close.’”
A woman eating dinner with her husband near the boat-ramp parking lot: “I said, ‘My God, he’s flying.’ And then as they went past us both of us said, ‘Oh, my God, he’s going to hit him.’”
A passenger on another boat: “I’m sure that we made a lot of comments that I don’t know if you want me to elaborate on here [in the courtroom], but one of them was definitely, ‘They’re going to kill 5
someone.’ I just don’t think any of us expected that to happen a few minutes later.”
While the Scarab and the Triton approached the Twilight, an aluminum
fishing boat was moving downriver. One of the fishing boat’s passengers saw the
Scarab go by “a little fast for a heavy populated boat area.” After the Scarab, the
men in the fishing boat saw Verbeke pilot the Bayliner “across the [Scarab’s]
waves” upriver “straight” into their path. But then the Bayliner “veered off . . . very
close” to the fishing boat, toward the other side of the river. Some witnesses
described the Bayliner as “just kind of tootling along, not moving very fast”; others
described the vessel as “sitting sideways in the middle of the river.” After this
change in direction, the Triton and the Bayliner collided.
Thiel and his son claimed to see the Bayliner hitting waves a “little bit like
near” the Twilight before the collision. Thiel’s son testified the Bayliner then “cut
across our path like they were cutting us off,” so he began to slow down and call
for Thiel to come up from the back. “I was like, ‘Dad, I don’t know what these guys
are doing. They’re driving crazy.’ And I was just yelling for him to come up and
that’s what he did.” But Thiel testified he didn’t make it in time. According to Thiel’s
son, the Bayliner “show[ed its] nose like it was going to the right of us” so he
“instinctively turned left to try and avoid them.” But despite trying to “avoid the
Bayliner at all costs,” Thiel’s son claimed the boat “turned back into us” leading to
a collision.
Other witnesses gave differing accounts of the collision. Some testified the
Bayliner hit the Triton: “It’s my opinion that the little boat went right in the direction 6
of where the [Triton] was going . . . .” And some witnesses testified the other way:
“The big [boat] slammed into the little one.”
The collision launched Thiel from the Triton into the river. He surfaced near
the Bayliner and swam on board. Thiel discovered Verbeke near the Bayliner’s
console “slumped over the side of the boat” and could not tell if he was breathing.
Thiel attempted cardiopulmonary resuscitation (CPR) on Verbeke.
Meanwhile, on the Triton, Thiel’s son “was shook.” He testified that, “once
[the Bayliner] hit us it was like a blank in my mind, and then when I came back to
it [Thiel] was just gone and I didn’t know where he went. I was freaking out.” One
of the Triton’s passengers called 911 and gave Thiel’s son the phone. He told the
operator: “We were going really fast and this boat pulled out in front of us. And we
hit them.”
Multiple law enforcement agencies, including the Iowa Department of
Natural Resources (DNR), responded. Once the Bayliner was towed to shore,
Thiel disembarked so firefighters could board. The firefighters declared Pinc dead
at the scene. A medical examiner later determined her cause of death was blunt
force injuries to the head, neck, and trunk. Verbeke still had a pulse, and first
responders took him to the hospital. He died three days later from injuries
sustained in the collision.
Thiel spoke with police shortly after the crash and gave his version of
events:
We’re coming down the river. And all of a sudden, out of nowhere, this boat turns left into us. And I’m sitting at this helm with my son . . . and he’s like “dad, dad, dad!” and I said “well shut it down, shut it down.” And he comes and he hits us. And I’m on the right side of the boat and knocks me out of the boat. And I get up . . . I look 7
around and all of a sudden I see this boat. And I climb up in this boat and I didn’t know there was anybody in it or not anybody in it. I jumped in and I found the driver. So I started giving him CPR. And I gave him CPR all the way . . . my friends pulled him back in. And I’m giving him CPR all the way back in man . . . I’m telling you we were going straight down the river and he came, we could not avoid him.
That night, Thiel and others on the Triton maintained the Bayliner crashed
into them. And Thiel continued to say he was right next to his son at the helm
during the collision. Thiel’s son told a DNR officer the Triton was “a little bit behind”
the Scarab at the time of collision. And the Scarab’s pilot told the DNR’s lead
investigator, Officer Travis Graves, they were “to the side” of the Triton before the
collision. Both the Bayliner and Triton had coolers filled with alcohol on board.
Verbeke’s blood alcohol content was .102—over the .08 legal limit. Thiel recalled
he’d had at least seven drinks that day, starting around noon.
Following a DNR investigation, the Scott County Attorney charged Thiel with
four counts of involuntary manslaughter. Two counts alleged involuntary
manslaughter by commission of a public offense, class “D” felonies in violation of
Iowa Code section 707.5(1)(a) (2020). The other two counts alleged involuntary
manslaughter by acting in a manner likely to cause death or serious injury,
aggravated misdemeanors in violation of section 707.5(1)(b).
Based on results from the investigation, a DNR officer opined the damage
to the Bayliner was inconsistent with it hitting the left side of the Triton. And a
Wisconsin DNR officer helping with the investigation concluded the damage
instead showed the Triton struck the Bayliner. Relying on global positioning
system (GPS) data from the Triton, the Wisconsin DNR officer surmised: “there
was no evasive action [by the Triton], no change in speed. If there was a course 8
direction of change it was very minimal . . . I feel there was no evasive action to
avoid that collision.” The Wisconsin officer could not say, however, whether the
Bayliner turned into the Triton’s path.
Employees of the company that manufactured the Triton’s center engine
extracted and analyzed data from the engine’s electronic control unit. Based on
this data, the employees concluded the Triton was at “full throttle” for most of the
100 seconds right before the collision, traveling approximately 56.9 mph. They
also found the Triton’s engine likely reduced speed in the final seven or eight
seconds of operation.
Iowa DNR Officer Graves, who testified as an expert for the State at trial,
concluded the Triton went over the top of the Bayliner at the time of collision. And
he found this “override or ramping” motion indicated the Triton was operating at a
high speed. Based on the Triton’s GPS data, Officer Graves calculated the boat
was 100 yards from the Twilight and going 54.99 mph one minute before collision.
Officer Graves estimated the Bayliner was going 25 to 35 mph. And he opined the
Triton’s speed was not safe given “[t]he size of the boat, the location, where the
incident happened at, [and] the amount of other boats in the water that day.”
A focus of Officer Graves’s cross-examination was a diagram from his
report, referred to as Exhibit S4. According to Officer Graves, S4 “was used as a
working document just to kind of paint a picture of where everyone was at just to
provide a better understanding of the incident.” He generally agreed S4 was
important to the investigation but “wouldn’t say it was the most important document
in [his] investigation.” The diagram was based on a “compilation of GPS data, 9
physical boat damage and eyewitness statements.” Based on that compilation,
the diagram depicted the Bayliner turning right before the collision.
A retired United States Coast Guard officer testified as Thiel’s expert. He
concluded Thiel’s son “was doing what was required” under the circumstances
when he turned the Triton left. Based on his review of Officer Graves’s report and
the underlying witness statements and data, Thiel’s expert determined “the vessels
were not that close except, of course, when they collided. But had they maintained
the course and speed before the collision they would have passed roughly 100
feet apart.” He opined the Bayliner likely “reversed course” and turned into the
Triton’s path. And he submitted Verbeke’s intoxication was the cause of collision.
Thiel’s expert explained his analysis was based on his opinion that S4 was Officer
Graves’s “best determination of where the” boats were.
In rebuttal, Officer Graves testified that S4 was of “very little” importance in
his overall investigation. And he reiterated that the diagram was not to scale.
According to his testimony on rebuttal, the only thing certain on S4 was the position
of the Triton because of its GPS data. The position of all other boats, paths, and
distances was based on the recorded damage and witness testimony.
For the first time on rebuttal cross-examination, Officer Graves testified
there were “working documents” or earlier drafts of S4 that he had provided to the
county attorney’s office. Before the case went to the jury, Thiel moved for
production of any draft diagrams Officer Graves “prepared and furnished to the
county attorney.” Thiel’s attorney made a record that he had not received any draft
documents in discovery and indicated he might move “to reopen the record if
there’s anything of substance about these additional documents.” The district 10
court denied the motion based on the county attorney’s statement he provided
everything received from Graves to the defense. The county attorney’s statement
ultimately proved inaccurate: he provided the defense with Graves’s entire
investigative report but not the draft diagrams, which had apparently been e-mailed
separately.
The jury found Thiel not guilty on both counts of involuntary manslaughter
by public offense but convicted on both counts of involuntary manslaughter by
conduct likely to cause death. Thiel polled the jury but made no other requests
when the verdict was returned.
Thiel later moved for a new trial. In his motion, he alleged a violation of his
due process rights by the county attorney’s failure to disclose the draft diagrams
before trial, asserted the verdicts were inconsistent, and asked the court to find the
evidence heavily preponderated against the verdict and warranted a new trial. The
district court orally denied Thiel’s motion for new trial at sentencing and ordered
him to serve concurrent sentences of one year in jail with all but ninety days
suspended for each count.
Thiel appeals.
II. Discussion
Thiel advances four arguments on appeal. First, he reiterates his claim the
State violated his due process rights by not turning over the two draft diagrams.
Second, he asserts his convictions are not supported by substantial evidence.
Finally, he makes two challenges to the ruling on the motion for new trial, asserting
the verdict was inconsistent and it was against the weight of the evidence. The 11
State responds to each argument on the merits but also raises error-preservation
and wavier concerns. We address each of Thiel’s claims in turn.
A. Due Process and the Draft Diagrams
A prosecutor’s potential failure to produce exculpatory evidence can violate
due process. Brady v. Maryland, 373 U.S. 83, 86–87 (1963). We review alleged
Brady violations de novo. State v. Leedom, 938 N.W.2d 177, 185 (Iowa 2020).
To show a Brady violation related to the draft diagrams, Thiel had to prove
three elements by a preponderance of the evidence:
1. The prosecution suppressed evidence; 2. This evidence was favorable to the accused; and 3. The evidence was material to the issue of guilt.
Cornell v. State, 430 N.W.2d 384, 385 (Iowa 1988) (citation omitted). The district
court found Thiel proved none of the three. For purposes of this appeal, we focus
on materiality. See State v. Romeo, 542 N.W.2d 543, 552 (Iowa 1996) (opting to
only address one prong of the analysis). On this element, the district court found
the draft diagrams were not material to guilt because they had little impact on trial
preparation, strategy, or the ultimate weight of the evidence.
Suppressed “evidence is material only if there is a reasonable probability
that, had the evidence been disclosed to the defense, the result of the proceeding
would have been different.” United States v. Bagley, 473 U.S. 667, 682 (1985);
accord Harrington v. State, 659 N.W.2d 509, 523 (Iowa 2003). This “reasonable
probability” does not require proof the defendant would “more likely than not” have
been acquitted. Kyles v. Whitley, 514 U.S. 419, 434 (1995). But the evidence
must do more than show the “reasonable possibility” of a different outcome.
DeSimone v. State, 803 N.W.2d 97, 105 (Iowa 2011) (citation omitted). In short, 12
we ask whether the suppressed evidence so “undermine[s] our confidence in the
jury verdict” as to warrant a new trial. Romeo, 542 N.W.2d at 552.
In conducting the materiality analysis, we “examin[e] a counterfactual of
how the trial would have played out with timely disclosure.” State v. Cahill, 972
N.W.2d 19, 29 (Iowa 2022). We consider the suppressed evidence collectively,
not “item by item.” Aguilera v. State, 807 N.W.2d 249, 255 (Iowa 2011) (citing
Kyles, 514 U.S. at 436–37). When it comes to impeachment evidence, a new trial
is not warranted when “the impeachment value of [allegedly suppressed] evidence
was merely incremental.” Romeo, 542 N.W.2d at 552.
Thiel’s claim on materiality is largely speculative, arguing he could have
done a better job impeaching Officer Graves if he had the draft diagrams. But
Thiel’s own expert, who reviewed the same underlying substantive evidence that
went into the diagrams, opined that Officer Graves’s final diagram was “one of the
best pieces of work I’ve seen in forty-one years relative to combining all the
information, all the witness statements in coming up with a report.” And Thiel does
not identify any evidence he believes Officer Graves ignored, misunderstood, or
failed to include in the final diagram.
Thiel’s reply brief posits the draft diagrams might have enabled his expert
to “address more accurately the thoroughness of the law enforcement
investigation” or potential bias. But this is a general assertion made without citation
to the record and without the support of additional testimony or a report from his
expert. See State v. Piper, 663 N.W.2d 894, 905 (Iowa 2003) (finding defendant’s
claims that suppressed evidence “hindered the defense team’s trial preparation”
to be “generalized assertions” when defendant did not specify how that evidence 13
“would have called his guilt into question or changed his trial strategy”), overruled
on other grounds by State v. Hanes, 790 N.W.2d 545, 551 (Iowa 2010)).
The district court below correctly pointed out the State did not offer or rely
on the final diagram at trial, which suggests it had limited value to the prosecution’s
overall case. Although Officer Graves conceded the exhibit was important to his
investigation and the diagram was his best attempt at compiling the facts, he
testified the real purpose of the diagram was “to help paint a picture” for readers
of his report. The trial was replete with testimony from many of the eyewitnesses
relied on by Officer Graves in creating the diagram, and the witnesses consistently
described how Thiel’s boat was operated at a reckless speed before the fatal
collision. See Aguilera, 807 N.W.2d at 257 (noting we consider whether the
suppressed evidence “would change the defendant’s trial strategy” in assessing
materiality). These witnesses were subject to well-prepared cross-examination,
and Thiel offers no concrete explanation for how that testimony would have
unfolded differently with timely disclosure of the draft diagrams.
Overall, we find Thiel did not carry his burden to prove “the trial would have
taken on a different dynamic” if he had received the two draft diagrams in
discovery. DeSimone, 803 N.W.2d at 106. To the extent the drafts may have
helped better cross-examine Officer Graves or supplied additional ammunition for
Thiel’s expert to undermine Graves, any impeachment value would be “merely
incremental” and does not shake our confidence in the verdict so as to warrant a
new trial. See Romeo, 524 N.W.2d at 552; see also Watkins v. Medeiros, 36
F.4th 373, 390–91 (1st Cir. 2022) (finding no Brady violation in a federal habeas
case when State failed to produce a “crime scene diagram” created by police that 14
was “not drawn to scale” and “would have a nominal effect on impeaching” the
State’s key witness). Finding a failure of proof on the materiality prong of the
analysis, we affirm the district court’s rejection of Thiel’s Brady claim.
B. Sufficiency of the Evidence
Thiel next argues there was insufficient evidence to support the jury’s
verdict on his two manslaughter convictions. We review sufficiency claims for
correction of legal error. Cahill, 972 N.W.2d at 27. While reviewing, “[w]e are
highly deferential to the [fact-finder]’s verdict” because it “binds this court if the
verdict is supported by substantial evidence.” Id. (quoting State v. Jones, 967
N.W.2d 336, 339 (Iowa 2021)). In deciding whether evidence is substantial, “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.’” Jones, 967 N.W.2d at 339 (quoting State v. Tipton, 987 N.W.2d
653, 692 (Iowa 2017)).
Before the merits, we address the State’s claim Thiel waived this argument
by failing to adequately brief it. Thiel’s opening brief sets out a sufficiency
challenge in the second heading, and he recites the correct standards of review at
the start of his discussion section. But according to the State, Thiel failed to offer
an “argument containing [his] contentions and the reasons for them with citations
to the authorities relied on and references to the pertinent parts of the record” within
the body of his challenge. See Iowa R. App. P. 6.903(2)(g)(3). In his reply brief,
Thiel points us to pages where he says he challenged sufficiency. But even those
pages blur the sufficiency and weight-of-the-evidence analyses. See State v.
Reeves, 670 N.W.2d 199, 202 (Iowa 2003) (explaining the difference between 15
these arguments); State v. Rivers, No. 18-0365, 2019 WL 2150807, at *1 n.2 (Iowa
Ct. App. May 15, 2019) (reiterating that a sufficiency-of-the-evidence challenge
and a weight-of-the-evidence challenge are “free-standing substantive
argument[s]” that require more than “boilerplate citations to legal authorities”).
Assuming without deciding Thiel did not waive his sufficiency argument, we
address the merits.
A person commits misdemeanor involuntary manslaughter “when the
person unintentionally causes the death of another person by the commission of
an act in a manner likely to cause death or serious injury.” Iowa Code
§ 707.5(1)(b). Under our case law, recklessness is also required. State v. Conner,
292 N.W.2d 682, 686 (Iowa 1980). As marshaled, the State had to prove:
1. On or about the 16th day of August, 2020, [Thiel] recklessly allowed the vessel to be operated in an unsafe manner. 2. [Thiel] did the act in a manner likely to cause death or serious injury. 3. By doing the act, [Thiel] unintentionally caused the death of Craig Verbeke [and Anita Pinc] . . . .
The jury instructions guide our sufficiency analysis. See State v. Canal, 773
N.W.2d 528, 530 (Iowa 2009). As marshaled, causation is met if Thiel’s actions
were “a substantial factor” in Pinc and Verbeke’s deaths and their deaths “would
not have happened except for [his] acts.” On recklessness, the instructions
required proof Thiel “willfully disregard[ed] the safety of persons or property,” which
is “more than a lack of reasonable care which may cause unintentional injury” and
instead requires proof he acted “consciously . . . with willful disregard of the
consequences.” The jury was also instructed “the danger must be so obvious that 16
the actor knows or should reasonably foresee that harm will more likely than not
result from the act.”
Thiel’s argument on appeal boils down to his view the jury believed the
wrong witnesses and came to the wrong conclusion. He highlights that some
witnesses on the Triton and Scarab testified the boats were not racing and that his
expert found his son’s turn left turn proper under the circumstances. He also
emphasizes witness testimony describing the Bayliner’s dangerous boating activity
earlier in the day to support his claim the Bayliner crossed into the Triton’s path.
(We assume without deciding this argument about the Bayliner does not run afoul
of Iowa Rule of Evidence 5.404’s bar on propensity evidence.) Finally, he flags
Verbeke’s potential intoxication as a cause of the collision.
Accepting or rejecting testimony is the role of the jury—not our appellate
courts. See State v. Nitcher, 720 N.W.2d 547, 556 (Iowa 2006). Jurors could have
chosen to believe Officer Graves’s testimony that the Triton should have turned
right to avoid colliding with the Bayliner. The jury was also free to believe the host
of witnesses on the river who saw the Triton and Scarab as “idiots racing,” “hauling
ass” like “they’re going to kill someone.” Analysis of the Triton’s GPS and engine
data bolstered this eyewitness testimony by demonstrating the Triton was going
dangerously fast. Finally, the jury could accept or reject observations about how
the Bayliner was operating that day and still find Thiel allowing his son to race the
Triton in busy waters was reckless. Given this record, substantial evidence
supports the convictions and Thiel has given us no basis for disturbing the jury
verdict. 17
C. The Post-Trial Inconsistent-Verdicts Challenge
Thiel next claims the jury returned an inconsistent verdict when it acquitted
him of manslaughter by public offense but convicted him of manslaughter by
conduct likely to cause death. He argues he is owed a new trial. We address
error-preservation concerns voiced by the State before moving to the merits.
1. Was the inconsistent-verdict challenge preserved?
The State’s error-preservation argument is twofold. First, it asserts the
district court failed to rule on Thiel’s inconsistent-verdict argument when denying
his weight challenge, leaving us with no ruling to review. And second, the State
argues “a post-verdict motion for new trial is not the preferred mechanism for
identifying and correcting inconsistent verdicts” and Thiel failed to preserve error
because he did not raise the issue before the jury was discharged.
Starting with the first argument, Thiel maintains the district court’s oral
denial of his weight challenge encompassed his inconsistent-verdict argument, on
the theory that the court ruled “the motion for new trial is denied” and implicitly
rejected all claims made in the motion, even though the court did not expressly
address inconsistent verdicts. Given our disposition of this issue on the merits, we
assume without deciding error was preserved.
Moving to the second error-preservation hurdle, Thiel candidly
acknowledges raising an inconsistent-verdict challenge before discharging the jury
“may be the preferred method.” But he insists the challenge is properly before us
based on how similar claims have been treated in the past. See State v. Halstead,
791 N.W.2d 805, 807 n.1 (Iowa 2010) (noting the State conceded error
preservation); State v. Hernandez, 538 N.W.2d 884, 888–89 (Iowa Ct. App. 1995) 18
(reviewing an inconsistent-verdicts claim first brought by post-trial motion while
recognizing the claimed error arose when the verdict was returned). Our case law
recognizes this remains a murky issue and we’ve avoided deciding whether raising
the challenge before discharge of the jury is required. See State v. Merrett, 842
N.W.2d 266, 276 (Iowa 2014) (declining to rule on whether the doctrine of invited
error applies); see also State v. LuCore, 989 N.W.2d 209, 219 & n.9 (Iowa Ct. App.
2023) (“[s]idestepping” error-preservation issues for an inconsistent-verdicts claim
following a bench trial, but noting the State’s position that a post-trial motion would
preserve error there). We opt again to reach the merits, leaving this thorny error-
preservation question for another day when it may be dispositive. See State v.
Doorenbos, No. 19-1257, 2020 WL 3264408, at *3 (Iowa Ct. App. June 17, 2020)
(opting to review an inconsistent-verdicts claim despite the State making a similar
preservation argument).
2. Were the verdicts legally inconsistent?
“The consequence of a potentially inconsistent jury verdict is a question of
law” that implicates a defendant’s constitutional rights. Merrett, 842 N.W.2d
at 272; see also Halstead, 791 N.W.2d at 814–16. Our review is de novo. Merrett,
842 N.W.2d at 272–73.
When we examine jury verdicts for inconsistency, we ask whether the
verdicts are “so logically and legally inconsistent as to be irreconcilable within the
context of the case.” State v. Fintel, 689 N.W.2d 95, 101 (Iowa 2004). In doing
so, we liberally construe the verdicts “to give effect to the intention of the jury and
to harmonize the verdicts if it is possible to do so.” State v. Goodon, No. 19-0174,
2020 WL 2060301, at *3 (Iowa Ct. App. Apr. 29, 2020). 19
In returning a guilty verdict for involuntary manslaughter by conduct likely to
cause death, the jury needed to find Thiel “recklessly allowed the vessel to be
operated in an unsafe manner.” Thiel alleges the inconsistency lies in the jury
simultaneously acquitting him of involuntary manslaughter by public offense, which
means the jury found one or more of these elements was not proven beyond a
reasonable doubt:
1. On or about the 16th day of August, 2020, the Defendant, or someone he aided and abetted, recklessly committed the crime of Prohibited Operation of a Vessel . . . . 2. When the Defendant committed the crime, he unintentionally caused the death of Craig Verbeke [and Anita Pinc] . . . .
The marshalling instructions defined prohibited operation of a vessel to mean
“operating any vessel in a careless, reckless or negligent manner so as to
endanger the life, limb or property of any person.”
Based on the elements, Thiel argues the verdicts are legally inconsistent
because the jury had to believe Thiel or someone he aided and abetted operated
the Triton in a “careless, reckless, or negligent manner.” Thiel equates the jury’s
finding that he did not aid and abet in the reckless operation of the Triton with its
conclusion that he “recklessly allowed the [Triton] to be operated in an unsafe
manner.” According to Thiel, for the jury to find he “recklessly allowed” his son to
operate the Triton unsafely, it would necessarily need to find he aided and abetted
another in operating the boat in a careless, reckless, or negligent manner. See
Doorenbos, 2020 WL 3264408, at *4 (noting many inconsistent-verdict challenges
involve offenses with overlapping elements). 20
As our case law recognizes, and the jury here was correctly instructed, a
person aids and abets in the commission of a crime when they knowingly approve
and agree to a “criminal act either by active participation or by some manner
encouraging it prior to or at the time of its commission.” State v. Lilly, 930
N.W.2d 293, 308 (Iowa 2019) (citation omitted); see also State v. Allen, 633
N.W.2d 752, 754 (Iowa 2001). In contrast, the word “allow” carries no precise legal
definition and no explanation in the jury instructions. A legal dictionary’s definition
of “allow” identifies eleven different meanings. See Allow, Black’s Law Dictionary
(11th ed. 2019). Two notable definitions include the more-passive “[t]o put no
obstacle in the way of; to suffer to exist or occur; to tolerate” and the more-active
“[t]o give consent to; to approve.” Id. A non-legal dictionary offers eight definitions,
including “to let do or happen; permit,” “to make provision for,” and “to admit; grant.”
See Allow, American Heritage Dictionary 96 (2d college ed. 1985).
Despite this deluge of definitions, we need not choose one to the exclusion
of all others. State v. Ellison, 985 N.W.2d 473, 482 (Iowa 2023) (words in a jury
instruction need not be defined when they are not “beyond the lexicon of a
reasonable juror”); Thongvanh v. State, 494 N.W.2d 679, 684 (Iowa 1993) (words
do not require definition when they are “a term of common usage and readily
understandable”). Even assuming jurors understood “allow” to carry a more-active
meaning—that Thiel recklessly consented to, approved of, or permitted the
reckless operation of the Triton—the jury could have concluded that fell short of
the active participation or encouragement required to prove aiding and abetting.
See Lilly, 930 N.W.2d at 308; Allen, 633 N.W.2d at 754. We are mindful that we
need not delve into the facts in resolving an inconsistent-verdicts challenge. See 21
Halstead, 791 N.W.2d at 815. But we think the facts support our conclusion that
the elements are not legally inconsistent. The jury here could have found both that
Thiel did not actively participate in or encourage his son’s recklessness (so he did
not aid and abet) and that Thiel knew his son was operating the boat at a reckless
speed and did nothing to stop him (so he permitted reckless operation). Because
we can harmonize the verdicts, we reject Thiel’s plea that we peer into “Pandora’s
box by probing into the sanctity of jury deliberations.” See id.
We also find a second legal distinction between elements of the allegedly
inconsistent manslaughter offenses: the required manner of operation. For the
jury to find Thiel guilty of manslaughter by public offense, jurors had to find the
Triton was operated “in a careless, reckless or negligent manner so as to endanger
the life, limb or property of any person.” But for Thiel to be convicted of
manslaughter by conduct likely to cause death, the jury only had to find the vessel
was operated in an “unsafe manner.” Thiel asserts that “operating a boat in an
‘unsafe manner’ is the same as operating it carelessly or negligently.” But Thiel
cites no case law supporting this conclusion, did not argue it to the jury, and never
requested an instruction to that effect. When we liberally construe the verdicts in
search of harmony, we find the jury could have concluded Thiel’s son operated the
boat in an unsafe manner that was less than careless or negligent. See Goodon,
2020 WL 2060301, at *3 (on harmonizing verdicts). The verdicts were not legally
inconsistent.
D. Weight of the Evidence
Thiel concludes by contending the jury’s verdict was “contrary to the weight
of the evidence.” See Iowa R. Crim. P. 2.24(2)(b)(6) (2021). When evidence 22
“preponderates heavily” against a verdict, the district court may grant a new trial to
avoid a miscarriage of justice. State v. Ellis, 578 N.W.2d 655, 658–59 (Iowa 1998)
(citation omitted). This standard requires the district court to “weigh the evidence
and consider the credibility of witnesses.” Id. at 658 (citation omitted). But on our
review, we don’t independently re-weigh evidence or judge a witness’s credibility
for ourselves—we review the district court’s exercise of discretion, only reversing
when a ruling rests on plainly untenable grounds or was clearly unreasonable.
State v. Taylor, 689 N.W.2d 116, 134 (Iowa 2004).
Much of Thiel’s argument on this ground is a repackaged challenge to the
sufficiency of the evidence. He points to allegedly conflicting testimony and urges
that the greater weight of credible evidence favored acquittal rather than
conviction. In rejecting this claim below, the district court found:
[T]his case was pretty clearly a credibility determination for the jury, and . . . they made their determination that the Thiel boat was being driven unsafely and in a manner likely to cause death or serious injury. That they found the conduct was reckless. And in addition to the subjective evidence of the witnesses that were presented, the jury also clearly found the objective evidence credible such as the GPS and speed information as well as to the damage of the boats. And so the Court finds that their finding is supported by the weight of the evidence.
Thiel offers no reason to believe this analysis was clearly unreasonable or
untenable. While there was some conflicting evidence over whether the Triton was
racing and whether the Bayliner crossed into the path of the Triton, every
eyewitness other than those in the Triton or Scarab saw the Triton racing, and their
accounts speak directly and colorfully to recklessness. Based on the uniformity
among disinterested witnesses and the “objective evidence” described by the
district court, this is not an “exceptional case[ ]” where “the evidence 23
preponderates heavily against the verdict.” Reeves, 670 N.W.2d at 202 (citation
omitted). The district court was in a better position than we are to assess
credibility, and we discern no abuse of discretion in the new-trial ruling.
III. Disposition
We leave the error-preservation and waiver questions concerning
inconsistent verdicts for another day and reject Thiel’s challenges to his
convictions on the merits.
AFFIRMED.