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IN THE COURT OF APPEALS OF IOWA No. 7-395 / 06-0258 Filed December 12, 2007

STATE OF IOWA, Plaintiff-Appellee, vs. WILLIAM JOSEPH PINEGAR, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Polk County, Joel D. Novak, Judge.

William Pinegar appeals from his convictions and sentences for homicide by vehicle, eluding, and operating a motor vehicle without the owner's consent. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

Mark C. Smith, State Appellate Defender, and Patricia Reynolds, First Assistant Appellate Defender, for appellant. Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney General, John P. Sarcone, County Attorney, and Michael T. Hunter, Assistant County Attorney, for appellee.

Heard by Huitink, P.J., and Vogel and Baker, JJ.

2 HUITINK, P.J. William Pinegar appeals from his convictions and sentences for homicide by vehicle, a class "B" felony, in violation of Iowa Code section 707.6A(1), eluding, a class "D" felony, in violation of section 321.279, and operating a motor vehicle without the owner's consent, an aggravated misdemeanor, in violation of section 714.7 (2003). We affirm in part, reverse in part, and remand. I. Background Facts and Proceedings On February 13, 2004, the State filed a three-count trial information charging Pinegar with homicide by vehicle, a class "C" felony, in violation of section 707.6A(2), eluding, a class "D" felony, in violation of section 321.279, and theft in the second degree, a class "D" felony, in violation of sections 714.1 and 714.2(2). The trial information was subsequently amended to charge Pinegar with homicide by vehicle, a class "B" felony in violation of section 707.6A(1). Pinegar pleaded not guilty to all offenses charged and timely filed notices of defenses, including compulsion and necessity. The record includes evidence of the following: On January 19, 2004, Polk County Deputy Sheriff Cass Bollman attempted to stop a vehicle driven by Pinegar for speeding. According to Bollman's version, he initially activated his lights and later his siren in an effort to stop Pinegar's vehicle. Bollman testified he pursued Pinegar after Pinegar failed to stop and in the course of the pursuit Pinegar ran stop signs, red lights, and drove at speeds in excess of the posted speed limits. Pinegar's vehicle eventually collided with another vehicle, drove through a fence, struck a tree, and came to rest on its passenger side. Melissa Sayles, a passenger in Pinegar's vehicle, was ejected from the vehicle and died

3 of resulting head injuries. Police officers found a semi-automatic pistol near her body. Troy McDaniels, another passenger in Pinegar's vehicle, was also injured. Pinegar told investigators he used methamphetamine and marijuana earlier that day. A subsequent blood test confirmed the presence of both

substances, as well as amphetamines, in his system. Pinegar and McDaniels told investigators that Sayles had also used methamphetamine that day. They also told investigators that Sayles told Pinegar not to stop because the vehicle was stolen and threatened Pinegar with a pistol if he refused to comply. Although McDaniels initially told investigators he did not see the pistol or hear any shots fired, he testified Sayles fired the pistol out of the window in the course of the pursuit. Bollman testified he did not see or hear any gunshots from Pinegar's vehicle during the pursuit. At the close of the evidence, Pinegar objected to the trial court's proposed jury instruction on the eluding count because it failed to include the requisite willfulness element of that offense. Pinegar also claimed the State failed to prove Bollman was in uniform, a statutory element of eluding. Pinegar also requested instructions on both his necessity and compulsion defenses. The trial court

overruled Pinegar's objections to the eluding instruction and declined to submit the necessity defense. The trial court's ruling states: [Y]ou established the, basically the prima facie case. You are entitled to a compulsion defense based on the evidence, because that's what I think you were claiming was do or die. The Court does not believe you are also entitled to the necessity defense. And so your request for that requested instruction will be overruled and denied.

4 On December 19, 2005, the jury returned a verdict finding Pinegar guilty of homicide by vehicle, eluding, and operating a motor vehicle without the owner's consent. Pinegar was subsequently sentenced to a term of imprisonment not to exceed twenty-five years on the homicide by motor vehicle count, five years on the eluding count, and two years on the operating a motor vehicle without the owner's consent count. The terms of imprisonment for the first two counts were ordered to be served consecutively, and the term of imprisonment for the last count was ordered to be served concurrent with the other two counts. After Pinegar's trial, trial counsel discovered for the first time that State's exhibit 37, a woman's style wallet that was admitted into evidence, contained two notes apparently written by Sayles to "Billy." Testimony at trial revealed Pinegar and Sayles had an on-again-off-again romantic relationship. Pinegar's trial

counsel obtained affidavits from two jurors indicating the jurors had discovered the notes, discussed them during deliberations, and at least one juror commented that Sayles would not have held a gun to the head of someone she loved. Other matters of fact and record will be referred to as necessary to

resolve the issues on appeal. On appeal, Pinegar contends: (1) the trial court erred in refusing to

instruct the jury on his necessity defense; (2) trial counsel was ineffective in a number of particulars; and (3) the record contains insufficient evidence to support his eluding conviction. II. Necessity Defense We review a trial court's refusal to give a proffered jury instruction for errors of law. State v. Kellogg, 542 N.W.2d 514, 516 (Iowa 1996) (citing Iowa R.

5 App. P. 4; State v. Breitbach, 488 N.W.2d 444, 449 (Iowa 1992)). A defendant is entitled to a jury instruction on a defense if he or she has made a timely request, the request is supported by the evidence, and the request sets forth a correct statement of the law. State v. Johnson, 534 N.W.2d 118, 124 (Iowa Ct. App. 1995) (citing United States v. Brake, 596 F.2d 337, 339 (8th Cir. 1979)). The necessity defense has long been recognized in Iowa. See State v. Ward, 170 Iowa 185, 191, 152 N.W. 501, 503 (1915) (holding the defendant was entitled to pursue this defense for killing a deer that destroyed his crop). Historically, this defense was only available in cases involving physical forces; however, the Iowa Supreme Court has held it is also available in cases involving human forces. State v. Walton, 311 N.W.2d 113, 114-15 (Iowa 1981) (citing State v. Reese, 272 N.W.2d 863, 866 (Iowa 1978); W. LaFave & A. Scott, Handbook on Criminal Law

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