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IN THE COURT OF APPEALS OF IOWA No. 2-255 / 11-0666 Filed June 27, 2012

STATE OF IOWA, Plaintiff-Appellee, vs. JAMES LAWRENCE SALKIL, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Scott County, Gary D. McKenrick, Judge.

James Salkil appeals from judgment and sentence imposed upon his convictions for first-degree kidnapping and assault causing serious injury. REVERSED IN PART AND REMANDED.

David G. Morrison, Rock Island, Illinois, for appellant. Thomas J. Miller, Attorney General, Kyle Hanson, Assistant Attorney General, Michael J. Walton, County Attorney, and Jerald Feuerbach, Assistant County Attorney, for appellee.

Heard by Eisenhauer, C.J., and Potterfield and Mullins, JJ.

2 POTTERFIELD, J. James Salkil appeals from judgment and sentence imposed upon his convictions for first-degree kidnapping and assault causing serious injury. Because there was substantial evidence to submit only one of the theories of first-degree kidnapping, the district court erred in instructing the jury and we reverse and remand for a new trial. The district court did not abuse its discretion in its evidentiary rulings. I. Background Facts and Proceedings. From the evidence presented at trial, a reasonable jury could find that early in the morning on March 11, 2010, Nate Johnson, Benjamin Border, Anthony McFarland, and James Salkil returned to Salkil's residence after a night of partying. McFarland called Johnson a "bitch" and made crude remarks about Johnson's female relatives. McFarland then said he was going to "slap" Johnson and "lay hands" on Border and Salkil. Salkil grabbed a baseball bat and hit McFarland several times on the head. Salkil then had Border and Johnson help him wrap McFarland in plastic and bedding from Salkil's room and put McFarland in the trunk of Border's Cadillac. The three transported McFarland to a secluded rural road, where Salkil and Border "put him in ditch." The three men then took the sheet and the blanket and McFarland's shirt, got back in the car, and returned to Salkil's residence. Charles Ray and his girlfriend, Stephanie Wade, had been with the other four men earlier at a strip club where McFarland had "disrespected" Wade. Ray and Wade left the group at about 2 a.m. and returned to their home.

3 Telephone records indicate a text message was sent from Salkil's phone to Wade at about 5 a.m. At about 7 a.m., Salkil called Ray and Wade saying he needed help. Ray went to Salkil's residence, left, and returned with a change of clothing for Border, whose clothes had blood on them. Johnson changed into some of Salkil's clothing. Wade arrived at Salkil's residence later with carpet cleaner and shampooed the carpets. Before Wade arrived at Salkil's residence, Johnson, Border, and Salkil cleaned up the blood that was "all over the living room." They bagged up their bloody clothes and "the other stuff from the living room ," including the cleaning materials and the bat, and put them in the trunk of Border's Cadillac. Johnson and Border took the items to a different remote rural location, where they poured gasoline on the pile and set it on fire. The bat did not burn so it was buried in the mud near a creek. Johnson and Border then took the Cadillac to a car wash and used the power sprayer to clean the inside of the trunk. The car wash where Johnson and Border washed the Cadillac had surveillance video that captured the men power washing the inside of the trunk.1 Border dropped Johnson off and then asked a friend if he could store the Cadillac for a time in a garage. Border then went to his girlfrie nd's house where he turned on his cell phone. Border received a text from Salkil that read, "still kicking," which Border took to mean McFarland was still alive. McFarland was found on the side of the road by morning commuters. At about 7:45 a.m., the first police officer on the scene, Timothy Brandenburg, found
1

The owner of the car wash thought this behavior odd enough that he remembered it.

4 McFarland "had shallow respirations and vague pulse," so he asked dispatch to send emergency responders. about 7:50 a.m. The investigation led police to question Salkil, Johnson, Border, Ray, and Wade. Salkil implicated Johnson and Border. Johnson and Border told police Salkil was the person who had beaten McFarland, told them they had to get rid of him, and chose the place where he would be left in the ditch. Johnson and Border led police to the burn pile in which police found the burnt remnants of a red cell phone, a spare tire belonging to the Cadillac registered to Border, and a "pirate symbol belt buckle." During the investigation, police learned Salkil, Johnson, Border, and Ray called themselves the Pirate Corp. Salkil had a business called Captain Hook Enterprises. Salkil was the "captain." Ray worked for Salkil and drove a black Dodge truck registered to that business.2 An ornament (a skull wearing a Firefighter Melaine Mohar-Whitchelo arrived at

bandana with a patch across one eye) hung from the rear-view mirror of the truck. Johnson, Border, and Salkil were all charged with first-degree kidnapping and assault offenses. In addition to kidnapping, Salkil was charged with Johnson and Border

attempted murder and willful injury with serious injury.

pleaded guilty to lesser charges and testified in the State's case at Salkil's subsequent trial. At trial, McFarland testified he was hospitalized for three months following the beating, suffered "brain damage, severe trauma," was "missing [the] front half
2

On the vehicle's proof of insurance, the entity is spelled "Captin Hook Enterprises."

5 of my skull," and remembered nothing of how he was injured . Salkil entered a written stipulation that "as a result of being struck in the head with a bat, Anthony McFarland suffered serious injury." Border testified that upon wrapping McFarland in the plastic and sheet, he did not think McFarland was alive. Johnson testified he thought McFarland "was dead" when they left him in the ditch. But Salkil told the police in a recorded statement that when McFarland was put into the car, he was breathing and wheezing. The recorded statement was played for the jury during trial. The jury found Salkil guilty of first-degree kidnapping, and the lesser included offenses of assault on the attempted murder count, and assault resulting in serious injury on the willful injury resulting in serious injury count. Salkil now appeals. He contends (1) the court improperly instructed the jury on first-degree kidnapping by including both the serious injury and the torture theories with a general verdict; (2) there is insufficient evidence from which a reasonable jury could find "as a result of the confinement or removal Anthony McFarland suffered a serious injury or intentionally was subjected to torture" to support the kidnapping conviction; (3) the trial court abused its discretion in admitting into evidence exhibits referring to the Pirate Corp; and (4) the court abused its discretion in admitting the automated records of Ben Border's cell phone text messages over the defendant's hearsay objection. II. Scope and Standard of Review. We review claims of error in jury instructions for errors of law. State v. Marin, 788 N.W.2d 833, 836 (Iowa 2010).

6 We also review sufficiency-of-evidence claims for the correction of errors at law. State v. Enderle, 745 N.W.2d 438, 443 (Iowa 2007). Our review of evidentiary rulings is generally for an abuse of discretion. See State v. Parker, 747 N.W.2d 196, 203 (Iowa 2008). An abuse of discretion occurs when the trial court exercises its discretion on clearly untenable grounds or to an extent clearly unreasonable. Id. III. Discussion. Salkil's first two issues are interrelated. He argues there was not

substantial evidence to support either theory under the marshalling instruction for kidnapping in the first degree. He also contends that because of this lack of evidence, the general verdict returned by the jury requires reversal of his conviction for that crime. See State v. Lathrop, 781 N.W.2d 288, 297 (Iowa 2010); State v. Heemstra, 721 N.W.2d 549, 558 (Iowa 2006). For the reasons that follow, we agree that retrial is required. A. First-Degree Kidnapping. As relevant here, "[a] person commits

kidnapping when the person either confines a person or removes a person from one place to another" without authority or consent "accompanied by . . . [t]he intent to inflict serious injury upon such person" or "[t]he intent to secretly confine such person." Iowa Code

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