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IN THE SUPREME COURT OF IOWA
No. 34 / 05-2072 Filed September 7, 2007 STATE OF IOWA, Appellee, vs. CHRISTOPHER BARRON SMITH, Appellant.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Pottawattamie County, Jeffrey L. Larson, Judge.

Both parties seek further review of a court of appeals decision affirming all but one of the defendant's convictions and granting him a new trial on one of the convictions. DECISION OF COURT OF APPEALS

VACATED; DISTRICT COURT JUDGMENT REVERSED AND CASE REMANDED.

Mark C. Smith, State Appellate Defender, and Theresa R. Wilson, Assistant State Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Thomas S. Tauber, Assistant Attorney General, Matthew D. Wilber, County Attorney, and Jon Jacobmeier, Assistant County Attorney, for appellee.

2 WIGGINS, Justice. Relevant to this appeal, a jury returned a verdict finding Christopher Barron Smith guilty of assault with intent to inflict serious injury, willful injury causing serious injury, assault on a peace officer while using or displaying a dangerous weapon, and assault while participating in a felony.1 The district court instructed the jury it could find Smith guilty of these crimes either as a principal, an aider and abettor, or under the theory of joint criminal conduct. Smith objected to the instructions on the ground there was insufficient evidence to submit these charges under the theory of joint criminal conduct. Because we agree the evidence was insufficient to submit these charges under the theory of joint criminal conduct, and the district court only instructed the jury to return a general verdict for each charge, we reverse Smith's conviction as to these crimes and remand the case for a new trial on the charges of assault with intent to inflict serious injury, willful injury causing serious injury, assault on a peace officer while using or displaying a dangerous weapon, and assault while participating in a felony. I. Background Facts. In viewing the evidence in the light most favorable to the State, a reasonable jury could have found the facts as follows. On November 9, 2004, Colteen Dineen planned to travel from his home in eastern Nebraska to Chicago, Illinois to steal cars. Dineen enlisted the help of Jeremy Clark in exchange for a handgun and a Camaro. Smith wanted to leave town and decided to go along for the trip. Smith did not know the purpose of the trip.

jury also found Smith guilty of first-degree theft. Smith did not appeal his theft conviction.

1The

3 The three men planned to travel in a Lincoln Navigator driven by Dineen. Dineen stole the Navigator from a car dealership a few weeks prior to November 9. Although Clark assumed the Navigator was stolen, Dineen did not tell either Smith or Clark that it was stolen. Smith thought the Navigator was owned by Dineen's aunt and that Dineen was making car payments to her. Prior to beginning the trip, Smith helped Dineen load the vehicle with handguns, rifles, and shotguns. Before leaving, at approximately 10 p.m., Dineen, Clark, and Smith made stops at a Wal-Mart, a fast food restaurant, and a friend's house. They also used methamphetamine prior to leaving Nebraska. Dineen drove the Navigator with Smith sitting in the front-passenger seat and Clark sitting in the rear-bucket seat located behind the frontpassenger seat. When they left Nebraska a handgun was lodged between Smith's seat and the console separating the driver's seat from the frontpassenger's seat. At approximately 3 a.m. on November 10, Brian Loomis, a Pottawattamie County deputy sheriff, was traveling westbound on Interstate 80 running radar. Loomis' radar set the speed of the Navigator traveling eastbound on Interstate 80 at about eighty-six miles-per-hour in a sixty-five mile-per-hour zone. Loomis turned through the highway median and

stopped the vehicle. Loomis approached the vehicle from the passenger side, asked Dineen for his license, and requested the vehicle's registration. Dineen told Loomis he did not have his driver's license with him. Instead, he provided Loomis with his correct name, social security number, and address. Smith located the car registration in the glove box and gave the registration to Loomis.

4 Loomis returned to his patrol car and ran the license plate number through his dispatch. After discovering the license plates did not match the Navigator's registration information, Loomis requested backup. While Loomis waited for backup, Dineen, Smith, and Clark discussed their situation and options. At that time Dineen told Smith and Clark the Navigator and guns were stolen. Dineen also told Smith and Clark he would "take the blame for everything." Smith was concerned because he was on probation and Clark was concerned because he was going through drug court. Smith and Clark believed if apprehended in a stolen vehicle with stolen guns and illegal drugs, they would go to prison. Smith and Clark did not want to go to prison. After the three decided imprisonment was not a viable option, they began to discuss other options. First, the three men ruled out driving away because the Navigator could not outrun the police vehicle. Next, they talked about backing the Navigator into the deputy or his vehicle as he reapproached them. Clark and Smith also considered shooting out the passenger-side window when the deputy came back to the Navigator. After waiting about nine minutes for backup, Loomis walked toward the Navigator on the driver's side and ask Dineen to step out of the vehicle. As the deputy approached the Navigator, Dineen yelled to both Smith and Clark to hand him a gun. Smith and Clark found a handgun and one of them gave it to Dineen. As soon as Loomis asked Dineen to step out of the vehicle, Dineen opened the door and shot Loomis four times. Dineen, Clark, and Smith then fled from the scene in the Navigator. Loomis was able to get back to his squad car and report he had been shot. Loomis sustained multiple gunshot wounds to his left upper

extremity, one bullet wound to his left posterior chest, and a wound to his

5 right upper extremity. These injuries were life threatening and he likely would not have been able to survive without surgery. These injuries also caused prolonged impairment of Loomis' left hand and arm function. The authorities ultimately apprehended Dineen, Smith, and Clark. Dineen pled guilty to attempted murder and received a twenty-five-year sentence. As part of his plea agreement, Dineen agreed to testify truthfully in the cases of Clark and Smith in exchange for the State dropping all other charges against him. Clark pled guilty to aiding and abetting the reckless use of a firearm causing serious injury and received a ten-year sentence. II. Proceedings. The State charged Smith in five counts. In count I the State charged Smith with attempt to commit murder in violation of Iowa Code sections 707.11, 702.7, 702.18(b), 703.1, and/or 703.2 (2003). In count II the State charged Smith with willful injury causing serious injury in violation of Iowa Code sections 708.1, 708.4(1), 702.18(b), 703.1, and/or 703.2. In count III the State charged Smith with assault on a peace officer while using or displaying a dangerous weapon in violation of Iowa Code sections 708.3A(2), 703.1, and/or 703.2. In count IV the State charged Smith with assault while participating in a felony in violation of Iowa Code sections 708.3, 714.2(1), 703.1 and/or 703.2. In count V the State charged Smith with theft in the first degree in violation of Iowa Code sections 714.1(4), 714.2(1), 703.1, and/or 703.2.2 The court instructed the jury it could find Smith guilty of each charge either as a principal, an aider and abettor, or under the theory of joint

leaving the scene of the shooting, Smith drove the Navigator. We assume exercising control of the Navigator after learning it was stolen forms the basis for Smith's theft conviction because on appeal the State does not argue that Smith committed the theft prior to the shooting or that the theft should be used as the separate, underlying public offense to form the basis of guilt under a joint criminal conduct theory.

2After

6 criminal conduct. As to count I the jury found Smith guilty of assault with intent to inflict serious injury, a lesser included offense of the charge of attempted murder. Under counts II

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