IN THE COURT OF APPEALS OF IOWA
No. 19-0878 Filed January 21, 2021
STATE OF IOWA, Plaintiff-Appellee,
vs.
TRAVIS JAMAL FOREMAN, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Polk County, William P. Kelly, Judge.
Travis Jamal Foreman appeals his convictions for assault causing serious
injury and two counts of intimidation with a dangerous weapon with intent.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Alexander Smith of Parrish Kruidenier Dunn Boles Gribble Gentry Brown &
Bergmann L.L.P., Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney
General, for appellee.
Heard by Doyle, P.J., and Tabor and Ahlers, JJ. 2
AHLERS, Judge.
Travis Foreman appeals his conviction for charges related to a shoot-out
outside a Des Moines bar.
I. Factual Background
This case arises out of a barroom brawl that began with rude remarks and
ended on the bar’s patio with an exchange of gunfire. On the night of the incident,
a man nicknamed “Kiki” and his wife went to a bar in Des Moines to celebrate
accomplishments related to Kiki’s business. The couple arrived at the bar around
nine or ten that night. A few of their friends were at the bar when they arrived, as
was Foreman and a few of Foreman’s friends, including a man named Josh.
The night was uneventful until Kiki learned that Foreman had tried to flirt
with Kiki’s wife. Kiki was outside the bar speaking with a friend when Josh came
up to him and told him about Foreman’s attempts. Kiki dismissed the incident at
first, but, after learning Foreman’s efforts had involved repeated attempts, he went
inside to address the situation. Kiki confronted Foreman and told him that
Foreman was being disrespectful to Kiki’s wife. Foreman asked Kiki to point out
his wife. When he did, Foreman made a derogatory remark about her in response.
Tension started to build between Kiki and Foreman. Kiki again asked
Foreman to stop being disrespectful. Foreman told him, “Oh, I don’t want that bitch
and she don’t want me either.” The two were standing inches apart from one
another when other patrons of the bar separated them.
Foreman approached Kiki a second time soon after. Kiki testified that
Foreman reached out his hand as if to shake Kiki’s hand. When Kiki accepted the
handshake offer, Foreman pulled Kiki in close to him and said, “Hey man, just so 3
you know, here are my guys. I’ll beat you and your wife’s ass right now.” Kiki
explained that, at that point, he believed he was surrounded by Foreman’s friends.
Apparently feeling threatened, Kiki punched Foreman in the face.
The bar’s surveillance cameras captured much of the interaction, including
the punch and what transpired inside the bar in the moments that followed. After
Kiki struck Foreman, people from Foreman’s group rushed toward Kiki, and
mayhem ensued. One of Foreman’s associates participating in the brawl was
swinging a pool cue at the mass of bodies involved in the fracas. At one point,
Kiki’s wife got between the combatants, and the fight briefly spilled out of view of
the surveillance cameras. Kiki testified that he believed that the fight consisted of
his wife and him against Foreman and four others. The wrestling and punching
mass of people eventually came back into the camera’s view as the participants
collapsed into a pile on the floor near the counter of the bar. While on the ground,
Kiki managed to pull a handgun out of his back pocket and rise to his feet.
At that point, Kiki and his wife backed to a corner near the back door leading
to the bar’s patio while Kiki tried to keep the others at bay while still displaying his
handgun. Some of the opposing combatants continued to approach Kiki, including
at least one person still holding a pool cue. Another of the opposing combatants
was captured on video holding a handgun down to his side near the periphery of
the group confronting Kiki. After some semblance of order had been regained, but
the situation was still tense, Kiki’s wife began throwing beer bottles at one or more
of the people standing near Kiki and her. Kiki tried to restrain his wife and pull her
behind him in the corner. While that was happening, one of a group of four women
on the patio opened the back door behind Kiki and his wife, grabbed Kiki’s wife by 4
her hair, and pulled her outside. Kiki immediately followed. The events taking
place on the patio were not captured on surveillance video. However, inside the
bar, surveillance footage showed Foreman take out his own handgun and, along
with several others, go out the front door of the bar on the opposite side of the
building.
Kiki testified he caught up with the four women dragging his wife and tried
to separate them. He then noticed the people he had been fighting inside the bar
had come around the side of the building from the front entrance. Kiki testified
that, at that point, he announced “warning shot” and fired his handgun in the air.
Right after firing the warning shot, Kiki testified that he saw Foreman shoot at him,
his wife, and the group of four women. Kiki returned fire, firing two shots at
Foreman, who was hiding behind “the entrance of the gate” to the patio area. Josh
(the man who reported Foreman’s efforts to flirt with Kiki’s wife) was between Kiki
and Foreman. He was shot during the exchange of gunfire, as was the woman
who had dragged Kiki’s wife out of the bar by her hair. The woman was shot in the
shin, which required her shin to be replaced.
Kiki and his wife left the scene in their vehicle shortly after the shooting and
went home. Later that night, Kiki turned himself into the police and surrendered
his handgun.
Foreman also left the scene immediately after the shooting. A Des Moines
police officer, who was responding to reports of the shooting and injuries at the
bar, observed Foreman’s vehicle “fleeing the scene at a high rate of speed.” The
officer conducted a traffic stop and discovered Foreman along with a front-seat
passenger named Craig. Craig was later identified as one of Foreman’s friends 5
who was present at the bar during the shooting. While interacting with the officer
conducting the traffic stop, Foreman repeatedly denied any knowledge of the
shooting and denied being at the bar. The officer detained Foreman and placed
him in the back of the squad car. A search of Foreman’s vehicle resulted in the
discovery of a nine-millimeter semi-automatic handgun wedged between the
driver’s seat and the center console and a box of nine-millimeter ammunition in the
backseat. The handgun and its magazine were empty and the slide was locked
open, consistent with the gun having been fired until empty. The officers also
discovered a second handgun below the passenger seat. The officer ran
Foreman’s driver’s license and discovered Foreman’s license status was barred.
The officer transported Foreman to the police station and conducted a
search. He found two small bags of cocaine in Foreman’s front pocket. Foreman
was then interviewed by a detective. During the interview, Foreman denied having
any active involvement in the shooting, telling the detective that, while he was at
the bar that night, he did not participate in the fight or the shooting. Instead,
Foreman claimed he was there to provide rides to his friends. He also denied
knowing about the handguns found in his vehicle. Foreman explained to the
detective that he fled the bar with Craig after hearing gunshots. However,
surveillance video from a nearby gas station showed Foreman leave the scene in
his vehicle, stop in the gas station’s parking lot, and pick up Craig before
accelerating away and being stopped by the officer.
Des Moines police searched the patio area outside the bar and found shell
casings for a nine-millimeter handgun. The casings were tested and determined
to have been fired from the nine-millimeter handgun found in Foreman’s vehicle 6
between his seat and the center console. The bullets in the injured woman’s leg
were extracted and tested as well, but those bullets could not be matched to
Foreman’s gun. However, a bullet remained in her foot and it was determined to
be a nine-millimeter bullet. The gun found under Craig’s seat was also tested, but
it did not match any of the casings or bullets recovered from the scene. In addition,
the brand of ammunition in that gun’s clip did not match the brand of ammunition
found at the scene.
II. Charges and Trial Outcome
Foreman was charged with seven crimes:
Count I: willful injury causing serious injury in violation of Iowa Code section
708.4(1) (2018) in relation to the shooting of the woman;
Count II: willful injury causing serious injury in relation to the shooting of
Josh;
Count III: intimidation with a dangerous weapon with intent in violation of
Iowa Code section 708.6 for firing his handgun into the group of people on the
bar’s patio;
Count IV: intimidation with a dangerous weapon with intent for firing his
handgun at or into the bar building;
Count V: possession of a controlled substance with intent to deliver in
violation of Iowa Code section 124.401(1)(c)(2);
Count VI: driving while barred in violation of Iowa Code section 321.561;
and
Count VII: carrying a concealed weapon in violation of Iowa Code section
724.4(1). 7
Following trial, the jury returned verdicts on all counts. On count I, Foreman
was found guilty of the lesser-included offense of assault causing serious injury in
violation of Iowa Code section 708.2. On count II, Foreman was found not guilty.
On counts III, IV, VI, and VII, he was found guilty as charged. On count V, he was
found guilty of the lesser-included offense of possession of cocaine. He was
sentenced and this appeal followed. On appeal, Foreman challenges only his
convictions for counts I, III, and IV. He does not challenge his convictions for
counts V, VI, or VII
III. Sufficiency of the Evidence
Foreman first argues insufficient evidence supported either of the counts
charging him with intimidation with a dangerous weapon with intent (counts III and
IV).
A. Standard of Review
“We will uphold the verdict on a sufficiency-of-evidence claim if substantial
evidence supports it.” State v. Schiebout, 944 N.W.2d 666, 670 (Iowa 2020). “In
reviewing a challenge to the sufficiency of evidence supporting a guilty verdict, we
consider ‘all of the record evidence viewed in the light most favorable to the State,
including all reasonable inferences that may be fairly drawn from the evidence.’”
Id. (quoting State v. Thomas, 847 N.W.2d 438, 442 (Iowa 2014)). “Evidence is
considered substantial if, when viewed in the light most favorable to the State, it
can convince a rational jury that the defendant is guilty beyond a reasonable
doubt.” State v. Ramirez, 895 N.W.2d 884, 890 (Iowa 2017). 8
B. Merits
The jury was given the following instruction on the intimidation with a
dangerous weapon with intent charge in count III:
INSTRUCTION NO. 37
In Count III, the State must prove all of the following elements of Intimidation with a Dangerous Weapon with Intent: 1. On or about November 17, 2018, Mr. Foreman or someone he aided and abetted shot a dangerous weapon within an assembly of people. 2. A person actually experienced fear of serious injury and his/her fear was reasonable under the existing circumstances. 3. Mr. Foreman or someone he aided and abetted shot the dangerous weapon with the specific intent to injure or cause fear or anger in another. If you find the State has proved all of the elements, Mr. Foreman is guilty of Intimidation with a Dangerous Weapon with Intent in Count III. If the State has proved elements 1 and 2 but not element 3, Mr. Foreman is guilty of the lesser-included offense of Intimidation with a Dangerous Weapon without Intent. If the State has failed to prove any one of the elements, Mr. Foreman is not guilty in Count III.
The instruction for count IV (instruction number 38) was identical, with the
exception of the reference to the count number and element 1 referenced shooting
a dangerous weapon “at or into a building which was occupied by another person”
rather than “within an assembly of people.”
1. Actual Fear
Foreman first argues the State has not shown either the assembly of people
on the patio (for count III) or the people inside the building (for count IV)
experienced “actual fear” of serious injury sufficient to satisfy the second element
of the charges. We find this argument to lack merit. Both direct and circumstantial
evidence supports the finding that the people on the patio and the people inside
the bar experienced actual fear. 9
As for direct evidence, Kiki’s wife testified that, after shots were fired, she
“was so scared and sick” she “started throwing up everywhere.” She further
testified she was so “panicked and scared” she could not recall everything she did
when she got home. The woman who was shot described being “paralyzed” and
unable to move after being shot.
Furthermore, circumstantial evidence supports a finding of actual fear. See
State v. Ross, 845 N.W.2d 692, 701 (Iowa 2014) (“The statute does not require
the members of the assembly specifically testify that they were scared.”). Camera
footage from inside the bar shows patrons frantically trying to flee the patio after
shots were fired. Additionally, evidence was presented that someone locked the
back entrance to the bar in the moments after the shooting. This evidence is
enough to support a finding that the people on the patio and the people inside the
bar experienced actual fear.
2. Assembly of People
Next, Foreman argues insufficient evidence supports count III because the
evidence does not support a finding that he was shooting into an assembly of
people. Instead, he insists, the evidence could only support a finding that he was
shooting at Kiki because Kiki was standing up, while Kiki’s wife and the four women
who jumped her were on the ground.
We are unpersuaded by this argument. The phrase “within an assembly of
people,” as used in section 708.6, is given its ordinary meaning. State v. Bush,
518 N.W.2d 778, 780 (Iowa 1994). Additionally, the jurors were instructed that
“within an assembly of people” means “into or through two or more persons at the
same place.” So long as two or more people are “at the same place,” as the people 10
on the bar’s patio were, they are an “assembly of people” under section 708.6.
See id. (finding the defendant had fired his gun “into or through” an assembly of
people where there was one person in front of him, two crouched behind a nearby
car, and approximately ten people behind him, all within fifteen to twenty feet).
When the shooting began, Kiki’s wife was on the ground fighting with the four
women, with Kiki trying to extract her from them. This placed Kiki right next to or
in the group of women, and all six people in the group “were placed at risk when
the gun was fired” sufficient to show the shot was “within an assembly of people.”
In re N.M.E., 564 N.W.2d 451, 454 (Iowa Ct. App. 1997) (finding that the defendant
had fired a handgun “within an assembly of people” where there were four people
in front of the defendant and two on each side). We find substantial evidence
supporting the jury’s determination Foreman fired the gun into an assembly of
people.
3. At or Into a Building
Foreman’s final sufficiency-of-the-evidence argument relates to count IV.
Foreman argues the State failed to prove the first element of the offense because
the patio was not a “building.” The State argues the patio was a building, and,
even if it is not, the evidence shows Foreman was firing toward the bar building
itself.
From our reading of the statute, we conclude the patio is not a “building.”
As Foreman points out, had the legislature intended to include both enclosed
structures and similar appurtenances such as decks and patios, it could have said
so or used the term “occupied structure,” which Iowa Code section 702.12 defines,
in part, as “any building, structure, appurtenances to buildings and structures.” Our 11
supreme court has defined “appurtenance” as “[t]hat which belongs to something
else; an adjunct; an appendage. Something annexed to another thing more worthy
as principal, and which passes as incident to it, as a right of way or easement to
land.” State v. Pace, 602 N.W.2d 764, 770 (Iowa 1999) (quoting Black’s Law
Dictionary 103 (6th ed.1990)). Based on that definition, fenced enclosures, a
driveway, a step or stoop outside the door of a home, and a cement walkway
leading to the step have all been determined to fall within the definition of an
appurtenance. Id. The fact that “occupied structure” is defined so as to include
both buildings and appurtenances to buildings suggests that a “building” does not
include appurtenances. At most, the patio was an appurtenance to the bar. It was
not a building. Therefore, there was insufficient evidence that Foreman fired in a
Having concluded the patio was not a building, we must still address
whether there was sufficient evidence Foreman fired at or into the bar building.
The State argues there was sufficient evidence. We find the record inadequate to
reach that conclusion. In its appellate brief, the State points to photographs of the
patio area and Kiki’s testimony to support the assertion that Foreman was shooting
in the direction of the building. The photographs themselves do not show to where
the bullets were shot, and Kiki’s testimony is similarly unhelpful:
Q. . . . Can you show us on the photograph the area where you observed your wife being pulled out of the bar? A. (The witness complies.) Q. And can you tell us where she was pulled or taken to? A. In this area right here (indicating). Q. And is that the same area where shots were fired at you by Travis Foreman? A. Yes, that’s where they started. Q. You said, “That’s where they started.” Did they go somewhere else as well? A. Well, then, when I moved, this – when 12
I moved – when I was moving, this is the pillar that I was hiding behind. Q. And when you were in this area here where you pointed where your wife was, again, who else was with you and your wife? A. Just the four girls that were jumping her. Q. So two or more people? A. Yes, sir. Q. And the shots started in that area by Travis Foreman? A. The shots came from— Q. Do you want to show us on the photo? If you can just point where it was coming from. A. If there was more of the photo, it would be back towards that way (indicating). Q. So the shots would be coming back towards here, but coming towards you where my finger is pointing (indicating)? A. That’s correct. Q. That would have been the area where you, your wife, [the injured woman], and others were? A. Yes, sir. Q. And where were you when you fired back at Travis Foreman? A. I was here and then went towards this way (indicating). Q. And where was [Josh]? A. He was in the middle, like right over in here (indicating).
Based on this record, we cannot determine where the shots were coming from and
whether Foreman was firing toward the building. The above excerpt provides a
good example of why trial counsel needs to take extra care in making a record
when a witness is pointing or otherwise making gestures in the courtroom. The
references to “right here,” “that’s where they started,” “this is the pillar,” “this area
here where you pointed,” “that area,” “back towards that way,” “coming back
towards here,” “where my finger is pointing,” “I was here and then went towards
this way,” “right over in here,” and “(indicating)” do us no good without a frame of
reference or any description that would enable us to decipher what is being
described. If a party, in this case the State, wants to rely on a witness’s
identification of events and locations by pointing at photos, maps, or other physical
evidence, it is that party’s burden to develop the record so that we can make sense
of such testimony. Alternatively, the State could have had the witness simply 13
describe the direction the shots were fired in relation to the building. In this case,
none of that was done. As a result, we cannot conclude sufficient evidence
supports the finding that Foreman fired into or at the building as alleged in count IV.
We therefore reverse and remand to the district court for a judgment of acquittal
on count IV.
IV. Ineffective Assistance of Counsel
Foreman next argues his trial counsel provided ineffective assistance in
relation to (1) counsel’s failure to request a jury instruction on the meaning of the
term “assault” and (2) counsel’s failure to request an instruction on self-defense
that incorporated recent changes to the law (i.e., “stand your ground”). For the
reasons below, we reject both arguments.1
We review ineffective-assistance-of-counsel claims de novo. State v.
Thorndike, 860 N.W.2d 316, 319 (Iowa 2015). “We prefer to reserve such
questions for postconviction proceedings so the defendant's trial counsel can
defend against the charge. However, we depart from this preference in cases
where the record is adequate to evaluate the . . . claim.” State v. Tate, 710 N.W.2d
237, 240 (Iowa 2006). We find the record adequate to evaluate Foreman’s claims.
1 Recent changes to Iowa law do not permit us to hear ineffective-assistance-of- counsel claims on direct appeal, barring certain exceptions that do not apply here. See 2019 Iowa Acts ch. 140 § 31. However, the Iowa Supreme Court has determined that those changes “do not apply to a direct appeal from a judgment and sentence entered before July 1, 2019.” State v. Macke, 933 N.W.2d 226, 228 (Iowa 2019). Because the judgment and sentence here were entered before July 1, 2019, we are not foreclosed from considering Foreman’s ineffective- assistance claims. 14
To establish a claim for ineffective assistance of counsel, “a defendant must
show (1) that counsel failed to perform an essential duty and (2) that prejudice
resulted.” State v. Kuhse, 937 N.W.2d 622, 628 (Iowa 2020); see also Strickland
v. Washington, 466 U.S. 668, 687–88 (1984).
To prove counsel failed to perform an essential duty, the defendant “must show that counsel’s performance was deficient,” meaning counsel “made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” The court determines “whether counsel’s assistance was reasonable considering all the circumstances.”
Kuhse, 937 N.W.2d at 628 (citation omitted) (quoting Strickland, 466 U.S. at 688).
To show prejudice, a defendant must show “that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Strickland, 466 U.S. at 694. And “[t]he
likelihood of a different result must be substantial, not just conceivable.” Kuhse,
937 N.W.2d at 628 (quoting State v. Ambrose, 861 N.W.2d 550, 557 (Iowa 2015)).
1. Definition of Assault
Foreman first argues trial counsel was ineffective for failing to object to the
jury instruction given by the district court regarding a lesser-included offense in
count I. The lesser-included offense at issue was assault causing serious injury.
The instruction at issue stated:
INSTRUCTION NO. 27
In Count I, the State must prove all of the following elements of the lesser-included offense of Assault Causing Serious Injury: 1. On or about November 17, 2018, Mr. Foreman or someone he aided and abetted assaulted [the injured woman]. 2. The act of Mr. Foreman or someone he aided and abetted caused a serious injury to [the injured woman]. 15
3. Mr. Foreman acted without justification. If you find the State has proved all of the elements, Mr. Foreman is guilty of Assault Causing Serious Injury in Count I. If the State has failed to prove any one of the elements, Mr. Foreman is not guilty of Assault Causing Serious Injury in Count I and you will then consider the lesser-included offense of Willful Injury Causing Bodily Injury as explained in Instruction No. 28.
Defense counsel did not object to this instruction.2
As Foreman correctly points out, instruction number 27 was deficient
in that it did not adequately set forth the elements of assault. “Assault,” as
used in instruction number 27, is defined by the Iowa Code as follows:
A person commits an assault when, without justification, the person does any of the following: a. Any act which is intended to cause pain or injury to, or which is intended to result in physical contact which will be insulting or offensive to another, coupled with the apparent ability to execute the act. b. Any act which is intended to place another in fear of immediate physical contact which will be painful, injurious, insulting, or offensive, coupled with the apparent ability to execute the act. c. Intentionally points any firearm toward another, or displays in a threatening manner any dangerous weapon toward another.
Iowa Code § 708.1(2). None of these definitional requirements were incorporated
into instruction number 27, and Foreman claims ineffective assistance of counsel
as a result of defense counsel’s failure to object to the instruction.
At first blush, Foreman’s claim appears to have merit. However, upon
closer analysis, Foreman is unable to meet the prejudice prong on his ineffective-
assistance-of-counsel claim. It is true that “there [is] no possible strategic reason
for failing to object to the omission of an element of an offense,” State v. Harris,
891 N.W.2d 182, 187 (Iowa 2017). Nevertheless, Foreman still needs to prove he
2We do not address a similar instruction with respect to count II, as Foreman was acquitted on count II. 16
was prejudiced by this error. This he cannot do. Foreman’s conviction of
intimidation with a dangerous weapon with intent, as charged in count III—which,
as addressed above, we affirm—necessarily required Foreman to have committed
an assault. See State v. Johnson, 534 N.W.2d 118, 125 (Iowa Ct. App. 1995)
(discussing section 708.6 and concluding “it is impossible to shoot, throw, launch,
or discharge a dangerous weapon into an occupied vehicle or building or an
assembly of people, and place the occupants in reasonable apprehension of
serious injury without simultaneously committing an assault”). Thus, Foreman
cannot show a reasonable probability of a different result had the jury received an
instruction fully defining “assault,” and thus cannot show trial counsel was
ineffective for failing to request one or object to the instruction as given.
2. Stand-Your-Ground Instruction
Foreman next argues that trial counsel was ineffective for failing to request
a self-defense instruction that included Iowa’s stand-your-ground provision,
codified as Iowa Code section 704.1(3), which states “A person who is not
engaged in illegal activity has no duty to retreat from any place where the person
is lawfully present before using force.” The instructions regarding justification
given by the district court stated as follows:
INSTRUCTION NO. 54
A person is justified in using reasonable force if he reasonably believes the force is necessary to defend himself from any imminent use of unlawful force. If the State has proved any one of the following elements, the defendant was not justified: 1. Mr. Foreman started or continued the incident which resulted in injury. 2. An alternative course of action was available to Mr. Foreman. 17
3. Mr. Foreman did not believe he was in imminent danger of death or injury and the use of force was not necessary to save him. 4. Mr. Foreman did not have reasonable grounds for the belief. 5. The force used by Mr. Foreman was unreasonable.
INSTRUCTION NO. 55
Concerning element number 3 of Instruction No. 54, Mr. Foreman was not required to act with perfect judgment. However, he was required to act with the care and caution a reasonable person would have used under the circumstances which existed at that time. If in Mr. Foreman’s mind the danger was actual, real, imminent or unavoidable, even though it did not exist, that is sufficient if a reasonable person would have seen it in the same light.
INSTRUCTION NO. 56
Concerning element number 4 of Instruction No. 54 Mr. Foreman claims danger existed. You are to consider the danger or apparent danger of injury from the viewpoint of a reasonable person under the circumstances which existed at that time. It is not necessary that there was actual danger, but the defendant must have acted in an honest and sincere belief that the danger actually existed. Apparent danger with knowledge that no real danger existed is no excuse for using force.
INSTRUCTION NO. 57
Concerning element number 2 of Instruction No. 54, if Mr. Foreman is confronted with the use of unlawful force against him, he is required to avoid the confrontation by seeking an alternative course of action before he is justified in repelling the force used against him.
Foreman asserts paragraph 2 of instruction number 54 was erroneous, thus
allowing the jury to conclude the State had overcome his justification defense if the
State proved “[a]n alternative course of action was available to Mr. Foreman.”
Foreman claims this instruction ignored his stand-your-ground rights, and defense
counsel was ineffective for not objecting to it. 18
Foreman may be correct that the instruction given would not accurately
reflect current law if the stand-your-ground provision applied. However, by its
terms, the stand-your-ground provision does not apply if a defendant is engaged
in illegal activity. See Iowa Code § 704.1(3) (“A person who is not engaged in
illegal activity has no duty to retreat”). Here, the jury found Foreman guilty of
carrying a firearm without a permit, and Foreman does not challenge that
conviction. The Iowa Supreme Court found, in a case very similar factually to this
one, that illegal possession of a firearm disqualifies a defendant from asserting the
current “stand-your-ground” justification defense. State v. Lorenzo Baltazar, 935
N.W.2d 862, 871 (Iowa 2019) (interpreting the “illegal activity” language in the
stand-your-ground provision and holding “[e]ven assuming the implied duty to
retreat involves only illegal activities germane to the use of force, Baltazar’s
possession of the handgun was directly related to the shooting death of Mercado.
In this case, Baltazar’s possession of the handgun was germane to the use of
deadly force.”). In Lorenzo Baltazar, the defendant “armed himself with a handgun
with the purpose to track down and confront” his eventual victim. Id. A similar fact
pattern occurred in this case. After Kiki left out the back entrance, the cameras
inside the bar show Foreman draw his handgun and exit out the front door. He
circled the outside of the bar to re-engage with Kiki and ended up shooting at Kiki,
his wife, and the four women who jumped Kiki’s wife. We conclude Lorenzo
Baltazar controls, and thus find trial counsel did not breach an essential duty by
failing to object to the justification instructions’ failure to include stand-your-ground
provisions, as Foreman was not entitled to stand-your-ground protections.
V. Jury Instructions Claims 19
Finally, Foreman appeals several rulings related to the inclusion or
exclusion of several jury instructions.
Challenges to jury instructions are reviewed for correction of errors at law.
State v. Hoyman, 863 N.W.2d 1, 7 (Iowa 2015). The corrections-of-errors-at-law
standard of review applies to challenges based on instructions given as well as the
refusal to give requested instructions. Alcala v. Marriott Int’l, Inc., 880 N.W.2d 699,
708 (Iowa 2016) (“[W]e clarify today that . . . we review refusals to give a requested
jury instruction for correction of errors at law.”). “Error in giving or refusing to give
a jury instruction does not warrant reversal unless it results in prejudice to the
complaining party.” Hoyman, 863 N.W.2d at 7. “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 been injuriously affected or that the party
has suffered a miscarriage of justice.” State v. Gansz, 376 N.W.2d 887, 891 (Iowa
1985). Foreman made no claim at the district court and makes no claim on appeal
that the claimed errors in the jury instructions were of constitutional magnitude.
Therefore, we review for whether Foreman’s rights were injuriously affected or he
suffered a miscarriage of justice. Id. Even though the claimed errors are not
alleged to be of a constitutional magnitude, however, we presume prejudice and
reverse unless the record affirmatively establishes there was no prejudice. State
v. Hanes, 790 N.W.2d 545, 551 (Iowa 2010).
Foreman raises three complaints regarding the instructions as given.
1. Justification Defense to Intimidation Charge 20
Foreman requested jury instructions asserting a justification defense related
to the charge of intimidation with a dangerous weapon. Included in his request
was for the marshaling instruction to include as an element of the offense that
Foreman acted without justification. The district court refused to give the
instruction, concluding it did not apply to intimidation with a dangerous weapon
charges. Foreman claims this was error. The State concedes that, if there was
sufficient evidence to support a justification defense, it was erroneous to conclude
the defense could not apply to the intimidation charges. However, the State
asserts there was insufficient evidence to support any justification defense, and,
even if there was, any error was harmless.
We share the State’s skepticism that the evidence supported giving
justification instructions at all. As previously noted, the altercation with Kiki and his
wife on one side and Foreman and his associates on the other had ended by the
time Kiki’s wife had been dragged out the back door and Kiki followed to assist her.
In spite of his involvement in the fracas coming to an end, Foreman drew a
handgun and marched out the front door of the bar with several of his associates,
walked past his vehicle (i.e., a means of escape from the situation), walked all the
way around the bar, and re-engaged in the altercation with Kiki.
Although the aforementioned details make us skeptical of Foreman’s claim
of a justification defense, we need not decide that issue because, even if we
assume he was entitled to it, the failure to instruct on justification did not prejudice
Foreman’s right to a fair trial. See Hoyman, 863 N.W.2d at 7 (holding no reversal
is required when there is no prejudice from erroneous instructions). As previously
noted, the jury was instructed as to Foreman’s justification defense with regard to 21
count I. On count I, the jury found Foreman guilty of assault causing serious injury,
which means the jury found the State established beyond a reasonable doubt that
Foreman acted without justification when he assaulted the woman who was shot.
The actions that resulted in the guilty finding for count I (i.e., shooting the woman)
were the same actions supporting the intimidation with a dangerous weapon
charge (i.e., intentionally firing a gun into a group of people, which included the
woman who was shot). Given that the jury found Foreman was not justified in
shooting the woman in the shin, there is no plausible way to conclude the jury
would have determined he was justified in shooting into the crowd in general. The
State has established that any error in failing to submit justification instructions
regarding the remaining intimidation charge was harmless.
2. Mutual Combat Instruction
Next, Foreman argues the district court erred by including an instruction on
“mutual combat,” claiming the instruction was not supported by the evidence. The
instruction stated:
INSTRUCTION NO. 58
If you find that Mr. Foreman, or any person or persons that Mr. Foreman was acting together with, were voluntarily engaged in mutual combat by shooting guns at each other and that, by exchanging gunfire, they jointly created a zone of danger likely to result in the death or injury of innocent bystanders, then you may also find that each of the combatants, including Mr. Foreman, aided and abetted each of the other combatants and it makes no difference which of the combatants fired the first shot or which of the combatants fired the shot which struck and injured [the injured woman] and [Josh]. If you do not find that Mr. Foreman, or any person or persons that Mr. Foreman was acting together with, were voluntarily engaged in mutual combat by shooting guns at each other and that, by exchanging gunfire, they jointly created a zone of danger likely to result in the death or injury of innocent bystanders, then you do not 22
have to find that each of the combatants, including Mr. Foreman, aided and abetted each of the other combatants and it makes no difference which of the combatants fired the first shot or which of the combatants fired the shot which struck and injured [the injured woman] and [Josh].
Foreman argues the instruction was improper because “[n]either Mr. Foreman nor
[Kiki] expected or agreed to engage in a fight” and, rather than agreement to fight,
the facts show both Foreman and Kiki were “swept up in the circumstances that
rapidly unfolded around them.”
Mutual combat requires “a mutual intention, consent, or agreement
preceding the initiation of hostilities.” State v. Spates, 779 N.W.2d 770, 776 (Iowa
2010). “[A]n express or tacit agreement to engage in violence, while sufficient, is
not required; it is enough that ‘there was a concurrent or mutual expectation that a
street battle would ensue.’” Id. (quoting Roy v. United States, 871 A.2d 498, 508
(D.C. 2005) abrogated by Fleming v. United States, 224 A.3d 213, 217 (D.C.
2020)). Essentially, the mutual combat doctrine expands the number of individuals
for which an accused can be determined to have aided and abetted by imposing
criminal liability on all combatants.
There are factual and policy arguments on both sides of the question
whether this was a mutual combat situation. However, we need not decide
whether it was appropriate to give the mutual combat instruction in this case. Even
if we were to assume it was error, the error was harmless. This is because the
record and the jury’s verdicts provide us information negating any plausible
likelihood Foreman was found guilty based on the actions of anyone other than
Foreman. We know the following from the uncontroverted portions of the record
and the jury’s verdicts: 23
(1) The marshaling instructions for counts I, II, III, and IV each permitted
the jury to find Foreman guilty based on his own conduct or the conduct of
someone he aided and abetted.
(2) The only potential aider and abettor of Foreman would have been
Kiki pursuant to a mutual combat theory, as there is no evidence supporting a
finding that anyone else fired a gun.
(3) The evidence only supports a finding that two people fired guns. Kiki
identified Foreman as the shooter of one gun and Kiki acknowledges firing the
other.
(4) Kiki fired a .380-caliber handgun.
(5) Josh was struck by a .380-caliber bullet.
(6) The woman who was shot was struck by a 9-millimeter bullet. Nine-
millimeter bullets were found in the woman’s foot and in the patio area of the bar
along with multiple 9-millimeter empty shell casings.
(7) A 9-millimeter handgun was found between the driver’s seat and
center console of the vehicle Foreman was driving. The handgun’s slide was
locked open with no ammunition remaining in the magazine, which is consistent
with the gun having been fired until it ran out of ammunition.
(8) The 9-millimeter handgun found in Foreman’s vehicle was the
handgun that fired the 9-millimeter ammunition on the patio.
(9) The jury found Foreman not guilty of shooting Josh (the charge in
count II).
Since Josh was struck with a projectile fired from Kiki’s gun and the jury
found Foreman not guilty of that shooting, we know the jury determined that the 24
mutual combat doctrine upon which the jury had been instructed did not apply, or
for some other reason determined Foreman was not criminally responsible under
an aiding and abetting theory. By contrast, the jury’s verdict of guilty for shooting
the woman, who was struck by the projectiles fired from the gun found right beside
Foreman in his vehicle, could only have been based on a conclusion that Foreman
fired the shots that struck her, as there is no evidence she was struck by the bullets
fired from Kiki’s gun. Because there is no plausible way Foreman was found guilty
for anyone’s conduct than his own, any claimed error in submitting a mutual
combat instruction was harmless. See State v. Jackson, 587 N.W.2d 764, 766
(Iowa 1998) (“[T]he giving of a joint criminal conduct instruction in instances in
which the alleged multiple participants are either principals or aiders and abettors
in the same crime does not require reversal if there is no opportunity for the
defendant to have been found guilty based on anything other than his own conduct
as a principal or an aider and abettor of the crime with which he is charged.”).
3. Aiding and Abetting Instruction
Finally, Foreman argues the district court erred in submitting an aiding-and-
abetting instruction over his objection. The instruction at issue stated: 25
INSTRUCTION NO. 18
All persons involved in the commission of a crime, whether they directly commit the crime or knowingly “aid and abet” its commission, shall be treated in the same way. “Aid and abet” means to knowingly approve and agree to the commission of a crime, either by active participation in it or by knowingly advising or encouraging the act in some way before or when it is committed. Conduct following the crime may be considered only as it may tend to prove the defendant’s earlier participation. Mere nearness to, or presence at, the scene of the crime, without more evidence, is not “aiding and abetting”. Likewise, mere knowledge of the crime is not enough to prove “aiding and abetting”. The guilt of a person who knowingly aids and abets the commission of a crime must be determined only on the facts which show the part he has in it, and does not depend upon the degree of another person’s guilt. If you find the State has proved Mr. Foreman directly committed the crime, or knowingly “aided and abetted” other person(s) in the commission of the crime, then Mr. Foreman is guilty of the crime charged. The crimes charged of Willful Injury Causing Serious Injury (two counts). Intimidation with a Dangerous Weapon (two counts), Possession of a Controlled Substance with Intent to Deliver requires a specific intent. Therefore, before you can find the defendant “aided and abetted” the commission of the crime, the State must prove Mr. Foreman either has [sic] such specific intent or “aided and abetted” with the knowledge the others who directly committed the crime had such specific intent. If the Mr. Foreman did not have the specific intent, or knowledge the others had such specific intent, he is not guilty.
In addition to the above instruction, the concept of aiding and abetting was
incorporated into the marshaling instructions for counts I through IV, as previously
noted.
Foreman claims it was error to submit aiding and abetting instructions. For
the same reasons explained above why aiding and abetting was harmless error in
the context of a mutual combat theory, the aiding and abetting instruction based
on any other theory is also harmless. See id. There was no opportunity for 26
Foreman to have been found guilty based on anything other than his own conduct,
as he was positively identified as the shooter and the handgun determined to have
been used in the shooting was found next to his seat in the vehicle he was driving
to flee the scene at high speed.
VI. Conclusion
For the reasons stated, we reverse and remand to the district court for a
judgment of acquittal on count IV. We affirm the district court on all other counts.