State of Iowa v. Anthony Alexander Mong

IN THE COURT OF APPEALS OF IOWA

No. 19-0911
Filed February 16, 2022

STATE OF IOWA,
Plaintiff-Appellee,

vs.

ANTHONY ALEXANDER MONG,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, William P. Kelly, Judge.

Anthony Mong appeals his convictions for attempted murder, intimidation

with a dangerous weapon, willful injury causing bodily injury, and going armed with

intent. REVERSED IN PART, AFFIRMED ON CONDITION IN PART, AND

REMANDED.

Cathleen J. Siebrecht of Siebrecht Law Firm, Des Moines, for appellant.

Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant

Attorney General, for appellee.

Heard by Bower, C.J., Badding, J., and Mullins, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2022).
2

BOWER, Chief Judge.

Anthony Mong appeals his convictions for attempted murder, intimidation

with a dangerous weapon, willful injury causing bodily injury, and going armed with

intent. Mong contends the jury pool did not represent a fair cross-section of the

community; the court erred in denying his motion to compel witness testimony; and

there is insufficient evidence of specific intent to support his convictions for

attempted murder, intimidation with a dangerous weapon, and willful injury causing

bodily injury.

Mong is entitled to access the information needed to enforce his

constitutional right to a jury trial and was not given access to that information, we

will remand to give him an opportunity to develop his arguments. We affirm the

district court’s denial of Mong’s motion to compel. Finally, there is no evidence of

a specific intent to harm or kill Shane Woods1 and, thus, there is insufficient

evidence to support the charges of attempted murder, intimidation with a

dangerous weapon, and willful injury causing bodily injury. We reverse those

convictions. We conditionally affirm the conviction for going armed with intent and

remand the matter to the district court for development of the record on the

challenge to the composition of the jury.

1 When multiple persons referenced in this opinion share a last name, we will refer
to them by their first name. This includes Shane Woods.
3

I. Background Facts and Proceedings.

Mong was present when Shane was shot in the back in 2018. Mong was

charged with attempted murder, intimidation with a dangerous weapon, willful

injury causing bodily injury, and going armed with intent.

On the first morning of trial, April 1, 2019, Mong filed a motion to compel

Tyrone Hughes Jr. to testify, explaining the State had attempted to depose Hughes

but Hughes invoked his Fifth Amendment rights against self-incrimination and

indicated he was not going to answer questions other than identification questions.

Hughes again invoked his Fifth Amendment rights when the defense attempted to

ask him questions. The defense presented a list of proposed questions to

Hughes’s attorney, and Hughes continued to invoke his right against self-

incrimination. The list of questions is not included in the appellate record.

However, the State’s argument against the motion to compel provides some

insight:

Tyrone Hughes is in custody, charged with murder in the first
degree. Tyrone Hughes is in the same pod as this defendant. They
have been together since December 12th of 2018. It wasn’t until last
week, Sunday, that counsel e-mailed me a letter that Tyrone wrote,
trying to exonerate the defendant, saying that some guy by the name
of Brandon Henlon told him that he committed the crime, not the
defendant.
When we inquired about Brandon Henlon, we were told that
he was dead. So a dead person tells the defendant’s cellmate that
he committed the crime and now they want the cellmate to testify.
We attempted to depose him, not knowing how the court is
going to rule. We deposed him on Friday of last week. And as
counsel so correctly stated, he came to depositions with his attorney,
Ms. Smith, who is here. And when we attempted to question him, he
invoked his Fifth Amendment right.
4

Hughes’s counsel informed the court she had advised her client to invoke

his right against self-incrimination “as it pertains to any substantive questions

which, if the court read the deposition, started immediately after [the prosecutor]

asked him what his name was and where he was currently residing.” With respect

to Mong’s defense counsel’s request that Hughes be required to invoke his right

on a question-by-question basis, Hughes’s counsel contended such a process

“would lead Mr. Hughes saying things that potentially were favorable to the

defense and rendering the State with the inability to cross-examine him, and that’s

where I have concerns as they pertain to Mr. Hughes’[s] trial as it comes up in

August.”

The court ruled:

I understand [the defendant] does have very important rights here.
Your client is on trial here today. And in looking at his rights, also
comparing those to Mr. Hughes’s rights, especially his Fifth
Amendment right not to testify or not to incriminate himself, through
the advice of counsel, Mr. Hughes has reviewed the questions you
wished to submit to him. He has chosen to assert his Fifth
Amendment right. His counsel has advised him to assert his Fifth
Amendment right. . . .
In our case, Mr. Hughes has indicated an intent to assert his
right against self-incrimination before a jury. And our Iowa Supreme
Court held that the district court correctly prohibited the defense from
calling a witness who has predetermined to invoke his privilege
against self-incrimination.
So based on State v. Bedwell, [417 N.W.2d 66, 69 (Iowa
1987),] and based on the reasons provided by the State’s resistance,
the motion to compel witness Tyrone Hughes Jr., to testify at trial is
denied at this time.

Prior to jury selection, the defense challenged the make-up of the jury panel,

noting the defendant was African American and only one potential juror was non-
5

white, but acknowledging “we don’t have the information available” to show

systematic exclusion. Defense counsel asserted:

We would indicate that the test, as it currently stands, makes it very
difficult to establish the third prong. But given the results of the panel,
the absolute disparity, the comparative disparity, the fact that there’s
only one African-American juror on this entire panel, we would urge
that is proof of systematic exclusion and, therefore, we’re raising a
challenge to the panel.
THE COURT: And your remedy is what?
[DEFENSE COUNSEL]: Pick a new panel.

The State objected, arguing the focus must be on the jury pool, not an

individual panel, and the defense was required to show an intentional and

deliberate exclusion of qualified African Americans jurors. The State suggested

the defense be allowed to review information from court administration and

“articulate why there’s a systematic exclusion of African-Americans” or proceed

with trial.

The defense responded, “[T]he only evidence that I was raising was just the

fact of the panel we’re looking at. . . . I’m asking the court to provide additional

members of the African-American community for this panel.” The court denied that

request but recessed to allow time for court administration to provide additional

information concerning the jury pool.

When court resumed, the court explained:

The court has requested the information, to give to defense
counsel, in regards to the makeup of the pool that was called for jury
duty. Our understanding is that 195 people showed up for jury
service today. Once that information is complete, I will forward that
on to defense counsel.
In order to determine the makeup of the race of the Polk
County citizens who have shown up for jury duty, I’m going to send
you all of their bios, and you’ll just have to go through and figure out
what their race is.
6

It’s not sorted. It can’t be sorted. So I think 210 were originally
called and 195 showed up. But the reason I’m telling you that is,
you’ll just have to count. So I don’t know what the actual number is.
At this time I will take evidence on systematic exclusion of
African-Americans from this pool.

Defense counsel repeated he had no additional evidence of systematic

exclusion at hand, and the jury selection process continued. After jury selection

was completed, the empaneled jury included one non-white member. Defense

provided no further evidence of systematic exclusion, and the court again rejected

the defense’s challenge to the jury pool.

At trial, evidence was presented that from November 2017 until just before

Shane was shot on June 1, 2018, Mong had an intermittent dating relationship with

Madison Cobb. During the same time period, Cobb and Ricco Martin were “friends

with benefits.” Martin received thirty to forty intimidating text messages from Mong

during that time, leading Martin to change his phone number. In May, Martin and

Mong had an argument in Cobb’s presence, during which Mong told Martin that

“he wasn’t going to fight me; he was going to shoot me.” That was the last time

Martin saw Mong before June 1.

Martin testified that on the evening of June 1 he was outside the home of

Cobb’s father, Todd Hines, and standing in the yard with Todd, Todd’s nephew

David Woods, and David’s father (Shane) when Mong arrived. He saw Mong drive

by, make a U-turn, and come back. Todd told Martin to go inside, but he did not.

Martin saw Mong jump out of the car. He saw Mong run behind a tree and shoot.

Shane was hit. Martin believed that Mong was trying to shoot him—not Shane.
7

Todd testified that at about 8:00 p.m. on June 1 he was outside in his yard

with David, Shane, and Martin. All of them had been smoking marijuana. The

men in the yard saw Mong driving down the street in a Hyundai Sonata, music

blaring.2 Todd had been present a couple weeks earlier when Mong told Martin

“he would not fight him; he was just going to shoot him.” Mong drove past the

house, went around the corner, turned around, drove back to Todd’s house, and

parked on the street. Mong exited the car with something in his hand and walked

toward the house. Todd testified he thought Mong was going to shoot Martin.

Todd ran inside to his bedroom and got his handgun. He had the gun tucked into

the back of his waistband when he went back outside. There, he saw Mong

walking to his driveway with a gun. Todd told Mong, “Don’t do this.” He repeated

the warning. Todd stated, “I was going to draw and point it towards him, Mr. Mong,

and [Martin] had grabbed my arm and reminded me there were children playing

outside in the neighbor’s yard.” Todd dropped the gun, which Martin retrieved, and

Todd ran into the house. Todd was inside the house by the sliding door and looking

outside when he heard two shots. He told Shane to run because Mong was

shooting, and Shane said, “I’m hit.” Todd testified he told his wife Heather to call

911 and then realized he had his phone in his pocket; he called 911.

Heather Hines testified she was called outside the night of the shooting at

about 8:00 p.m., found Shane had been shot, and Todd told her to call 911, which

she did. She knew of the conflict between Mong and Martin a few weeks prior. At

some point after the shooting, Martin gave her Todd’s gun and asked her to “put it

2 The vehicle belonged to Mong’s girlfriend, Rachel.
8

up for Todd.” She placed the gun under their mattress and did not tell the police

about it that evening.

David also testified he saw Mong drive by the Hineses’ house. Mong gave

the men “a little stare down” as he drove by. David saw Mong turn around at the

school, then Mong “cranked his music and came back.” David believed “something

was going to happen,” so he went to the garage and grabbed a baseball bat. While

David was in the garage, he heard a gunshot, heard Todd say, “He’s got a gun,”

then heard his dad yell, “I’m hit. I’m hit.” David left the garage and saw Shane

was bleeding. He saw Mong getting into his car and chased after the car with the

baseball bat.

Shane testified he saw Mong drive by, pull up in front of the yard, but then

drive on. He watched as Mong went around the corner, turned around, and came

back. This time, Mong stopped in front of the house, got out of the car, and walked

to the back of the car. By that time, Todd had gone into the house and come back

out. Shane heard Todd say, “Don’t, Tony, don’t.” Shane looked and saw that

Mong was at the driveway with a gun pulled. When he saw that Mong had a gun,

he did not run because he did not think he had a problem with Mong. Shane just

turned around to walk back toward the house. He heard a shot. Shane was hit on

the left side of his back; the bullet exited through his chest and travelled through

his arm. At the time he was shot, Shane was approximately six to eight feet from

Martin, who was standing by the front of the deck.

Mong took the stand in his own defense. He testified he was storing a red

Cadillac at the Hineses’ residence. Todd had planned to help Mong fix the car.
9

After Mong and Cobb broke up, Mong wanted his car back. Mong testified that he

went to Todd’s house on May 31 and talked to him about getting the car back.

Todd told him to come back on the weekend because Cobb had the title and keys

to the car and she was not home.

Mong stated that after he got off work on June 1, he picked up Brandon

Henlon, dropped his girlfriend off at work, smoked marijuana for a while, and then

he and Henlon drove around. Mong decided to go pick up the Cadillac. When

they got to the Hineses’ residence, he saw Todd, Martin, Shane, and David all

sitting outside. He pulled up in front of the house and parked behind a big tree in

the yard. He told Henlon to stay in the car and got out with his cell phone in his

hand. Mong testified he was texting and then saw Todd with a gun. He saw Martin

grab the gun, so Mong ducked behind the tree. Mong testified that while behind

the tree, he heard one shot fired from the direction of the men in the yard. Then,

he heard a second shot fired from behind him, from his car. Mong ran back to the

car and drove off. Mong saw that Henlon had a gun in his hand.

Mong was afraid that someone would come after him or shoot him, so he

stayed in a hotel until morning. A friend drove him to Las Vegas, where his mother

lived. He denied that he had a gun on June 1, he intended to shoot anyone at the

Hineses’ residence, he intended to fight anyone there, or he fired a shot at anyone.

He testified he did not learn that Shane had been injured until a day or two after

he arrived in Las Vegas. He did not try to contact the police in Iowa because

Henlon was his best friend whom he believed had saved his life and he did not

want to get Henlon in trouble.
10

Mong was arrested in Las Vegas two months after the shooting. Henlon

died in February 2019—before Mong’s trial. Mong did not tell the police Henlon

had a firearm at the scene until after Henlon died. The evidence showed there

was a live round of ammunition in the car Mong and Henlon were driving and a

shell casing was found in the street.

Mong filed a motion for judgment of acquittal after the close of the State’s

case-in-chief and again at the close of the evidence, asserting there was

insufficient evidence Mong was armed or that he had specific intent to support the

charges of attempted murder, intimidation with a dangerous weapon, or willful

injury. The court denied the motions.

The marshalling instructions on the elements of attempted murder,

intimidation with a dangerous weapon, and willful injury causing serious injury each

included a statement that Mong “specifically intended to cause the death of Shane

Woods.” The instructions on the elements of going armed with intent provided,

“The defendant was armed with the specific intent to use the firearm against

another person.” The jury instructions included one on the doctrine of transferred

intent.

The jury convicted Mong on all charges.

In his motion for new trial, defense counsel asserted the convictions

concerning attempted murder, intimidation, and willful injury were improper under

the marshalling instructions given, explaining in part:

And to speak briefly further, there were a couple of
instructions where it did allow for transferred intent, and those were
specifically laid out in my motion, assault causing bodily injury as well
as the assault. And Instruction 31 and 24 refer to “another” and that
11

would allow for transferred intent. And these others, we are urging,
would not.
So I’m not saying—we are not saying that the instructions
were inappropriate in the way that they were drafted. We are saying
that the jury’s verdict is contrary to the weight of the evidence based
upon those instructions.

The court denied Mong’s motion for a new trial and imposed sentences.

Mong appeals, contending the court erred in denying his challenge to the

makeup of the jury and in denying his motion to compel the testimony of Tyrone

Hughes Jr. He also asserts there is insufficient evidence of specific intent directed

toward Shane Woods to support his convictions for attempted murder, intimidation

with a dangerous weapon, and willful injury causing bodily injury. He does not

challenge the sufficiency of the evidence for the conviction for going armed with

intent.

II. Scope of Review.

Claims of systematic exclusion of a distinctive group from a jury pool raise

a constitutional question and are reviewed de novo. State v. Plain, 898 N.W.2d

801, 810–11 (Iowa 2017). So, too, we review de novo Mong’s claim that his right

to compulsory process was violated. State v. Heard, 934 N.W.2d 433, 439 (Iowa

2019). We review sufficiency-of-the-evidence claims for errors of law. State v.

Albright, 925 N.W.2d 144, 150 (Iowa 2019).

III. Discussion.

A. Jury Pool. When faced with a Sixth-Amendment claim of unconstitutional

underrepresentation of a racial group in a jury pool, Iowa follows the three-part test

set forth in Duren v. Missouri, 439 U.S. 357, 364 (1979). See Plain, 898 N.W.2d
12

at 821–22. Under that test, a defendant can establish a prima facie violation of the

fair cross-section requirement by showing

(1) that the group alleged to be excluded is a “distinctive” group in
the community; (2) that the representation of this group in venires
from which juries are selected is not fair and reasonable in relation
to the number of such persons in the community; and (3) that this
underrepresentation is due to systematic exclusion of the group in
the jury-selection process.

Duren, 439 U.S. at 364. “If the defendant establishes a prima facie case, the

burden shifts to the state to justify the disproportionate representation by proving

‘a significant state interest’ is ‘manifestly and primarily advanced’ by the causes of

the disproportionate exclusion.” Plain, 898 N.W.2d at 822 (citation omitted).

In Plain, which was decided a few months after Mong’s trial, our supreme

court noted that to establish the second Duren prong “jurisdictions generally apply

one or more of the following statistical tests: (1) absolute disparity, (2) comparative

disparity, and/or (3) standard deviation.” Id. Our supreme court had previously

determined the absolute disparity test was the appropriate test to use. State v.

Jones, 490 N.W.2d 787, 792–93 (Iowa 1992). “Absolute disparity is calculated ‘by

taking the percentage of the distinct group in the population and subtracting from

it the percentage of that group represented in the jury panel.’”3 Plain, 898 N.W.2d

at 822 (quoting Jones, 490 N.W.2d at 793). However, the Plain court faulted the

3 “Comparative disparity is calculated by dividing the absolute disparity by the
percentage of the population represented by the group in question.” Plain, 898
N.W.2d at 823. “Standard deviation is calculated by analyzing a sample taken
from the voter wheel and analyzing it for randomness and fluctuations.” Id. The
method “uses accepted statistical methods to determine the likelihood that a
disparity between the minority percentage in the pool and in the population is the
result of something other than chance.” State v. Lilly, 930 N.W.2d 293, 300 (Iowa
2019).
13

absolute disparity test for failing to “account for the relative size of the minority

group in the general population.” Id. at 823.

Exclusive use of the absolute disparity test creates problems of
constitutional significance in Iowa. The test offers less protection for
a minority group as the group’s percentage of the community’s total
population decreases. In adopting the absolute disparity test in
Jones, we noted that the Supreme Court had determined that “the
underrepresentation of as much as ten percent” did not establish a
prima facie case for the second Duren prong.

Id. at 825.4 The court noted that because African Americans do not represent more

than ten percent of the population of any county in Iowa, the test “leaves the right

to an impartial jury for some minority populations without protection.” Id. The court

concluded “it is no longer appropriate to rely exclusively upon the absolute disparity

test as an indicator of representativeness.” Id. at 826.

In Lilly, the supreme court concluded standard-deviation analysis “get[s] at

the heart of the matter . . . the probability that the disparity between a group’s jury-

eligible population and the group’s percentage in the qualified jury pool is

attributable to random chance.” 930 N.W.2d at 302 (citation omitted). And then,

in State v. Veal, the court concluded “a downward variance of two standard

deviations must be shown under the Sixth Amendment.” 930 N.W.2d 319, 329

(Iowa 2019).

The Plain court stated:

Defendants are entitled to access the information needed to enforce
their constitutional right to a jury trial by a representative cross-
section of the community. In this case, Plain attempted to obtain the
information he is entitled to receive. Because our statutes do not
specify a procedure for accessing the information, he took what we

4The Plain court found fault with the other two tests as well. See 898 N.W.2d at
822–23.
14

view to be a reasonable approach—he asked the jury manager to
provide it. The jury manager did not produce the information, citing
a lack of access to the information the state is constitutionally
required to maintain. To the extent Plain did not meet his prima facie
case with respect to the third prong of the test, we conclude he
lacked the opportunity to do so because he was not provided access
to the records to which he was entitled.

898 N.W.2d at 828. The court “conditionally affirm[ed] Plain’s conviction and

remand[ed] to the district court for development of the record on the Sixth

Amendment challenge.” Id. at 829.5

Mong requests we remand to allow him an opportunity to develop the record

on his challenge.6 The State objects, contending Mong failed to present any

evidence on the second and third prongs of the Duren test, and he is not entitled

a “second crack at carrying his burden.” Because Mong did not have the benefit

of the Plain/Lilly/Veal line of cases, and because he is entitled to access the

information needed to enforce his constitutional right to a jury trial and was not

given access to that information, id. at 828, we will conditionally affirm and remand

to give him an opportunity to develop his arguments. See Lilly, 930 N.W.2d at 308

(“Because the parties did not have the benefit of these refinements to the

Duren/Plain standards, we have decided today to follow the same course of action

as in Plain.”); Veal, 930 N.W.2d at 330 (“As in Plain and Lilly, we believe the

5 On remand, Plain failed to establish the third Duren prong, advancing only “run-
of-the-mill jury management practices,” which are within the state’s broad
discretion and will not sustain a cross-section challenge. State v. Plain, __N.W.2d
___, ___, 2022 WL 188431, at *4 (Iowa 2022).
6 He also requests that we “take this case as an opportunity to continue to expand

fair cross-section jurisprudence to apply not just to jury pools, but also to jury
panels.” Our supreme court has not been inclined to do so. See State v. Wilson,
941 N.W.2d 579, 593 (Iowa 2020) (“The Plain/Duren right applies to the jury
pool.”).
15

appropriate course of action here would be to remand the case. Neither the parties

nor the district court had the benefit of today’s decisions. A remand will offer Veal

a further opportunity to develop his arguments that his Sixth Amendment right to

an impartial jury was violated.”); accord State v. Armsted, No. 19-1883, 2021 WL

1016575, at *6 (Iowa Ct. App. Mar. 17, 2021); State v. Shaw, No. 18-0421, 2019

WL 5790884, at *4 (Iowa Ct. App. Nov. 6, 2019); State v. Voigts, No. 18-1927,

2019 WL 5424965, at *2 (Iowa Ct. App. Oct. 23, 2019).

B. Motion to Compel Testimony. “No person . . . shall be compelled in any

criminal case to be a witness against himself.” U.S. Const. amend. V.

Mong sought to compel Hughes to testify regarding Henlon’s purported

statement that he committed the crime, not Mong. Hughes was awaiting trial on a

first-degree murder charge and made clear through counsel he would assert his

Fifth Amendment right against self-incrimination. In Heard, our supreme court

addressed whether a defendant could compel a witness to take the stand and

assert his Fifth Amendment privilege in front of a jury. 934 N.W.2d at 439. The

court ruled, “[W]hen a witness’[s] privilege against self-incrimination under the Fifth

Amendment collides with an accused’s right to compulsory process under the Sixth

Amendment, the latter must give way.” Id. at 440 (citation omitted). “The privilege

against self-incrimination extends to answers that ‘would furnish a link in the chain

of evidence needed to prosecute the claimant for a . . . crime.’” Id. (citation

omitted).

Mong attempts to distinguish his case from Heard. He notes the Heard

court stated, “The trial court has the discretion to decide if the witness has grounds
16

to assert the privilege against self-incrimination and may require the witness to

answer if it clearly appears to the court that he is mistaken.” Id. (altered for

readability) (citations omitted). Mong argues the court “made no inquiry as to

whether Hughes had grounds to assert the privilege.” But we know Hughes’s

counsel informed the court she had advised her client to invoke his right against

self-incrimination “as it pertains to any substantive questions which, if the court

read the deposition, started immediately after [the prosecutor] asked him what his

name was and where he was currently residing.” With respect to Mong’s defense

counsel’s request that Hughes be required to invoke his right on a question-by-

question basis, Hughes’s counsel contended such a process “would lead Mr.

Hughes saying things that potentially were favorable to the defense and rendering

the State with the inability to cross-examine him, and that’s where I have concerns

as they pertain to Mr. Hughes’[s] trial as it comes in August.” We discern no error

in the court’s not asking for further information as to whether Hughes had grounds

to invoke the privilege. Nor can we find fault with the trial court’s denial of Mong’s

motion to compel Hughes’s testimony.

C. Sufficiency of the Evidence. We turn now to Mong’s claim that there is

insufficient evidence of his specific intent to harm or injure Shane Woods to support

three of the convictions.

When reviewing sufficiency-of-the-evidence claims, “[w]e review all of the

evidence presented at trial and consider it in the light most favorable to the State.”

Albright, 925 N.W.2d at 150. “When the evidence could convince a rational trier
17

of fact that the defendant is guilty beyond a reasonable doubt, the verdict is

supported by substantial evidence.” Id.

“Where, as here, the jury was instructed without objection, the jury

instruction becomes law of the case for the purposes of reviewing the sufficiency

of the evidence.” State v. Banes, 910 N.W.2d 634, 639 (Iowa Ct. App. 2018).

Thus, the question as presented here is whether there is substantial evidence of

Mong’s specific intent under the jury instructions given. The jury instruction related

to attempted murder provided:

In Count I, the State must prove all the following elements of
Attempt to Commit Murder:
(1) On or about June 1, 2018, the Defendant, Anthony
Alexander Mong shot Shane Woods with a firearm.
(2) By his acts, the defendant, Anthony Alexander Mong
expected to set in motion a force or chain of events which could have
caused or resulted in the death of Shane Woods.
(3) When the defendant acted, he specifically intended to
cause the death of Shane Woods.
If the State has proved all of these elements, the defendant is
guilty of attempt to commit murder.

(Emphasis added.) Similarly, the intimidation-with-a-dangerous-weapon

instruction provided:

In Count II, the State must prove all of the following elements
of Intimidation with a Dangerous Weapon with Intent:
(1) On or about June 1, 2018, the defendant, Anthony
Alexander Mong, intentionally shot a dangerous weapon within an
assembly of people;
(2) Shane Woods actually experienced fear of serious injury
and his fear was reasonable under the existing circumstances;
(3) The defendant shot the dangerous weapon with the
specific intent to injure or cause fear or anger in Shane Woods.
If the State has proved all three of these elements, the
defendant is guilty of intimidation with a dangerous weapon with
intent.

(Emphasis added.) And regarding willful injury, the jury was instructed:
18

In Count III, the State must prove all of the following elements
of willful injury causing bodily injury:
(1) On or about June 1, 2018, the defendant, Anthony
Alexander Mong shot a firearm at Shane Woods.
(2) The defendant specifically intended to cause a serious
injury to Shane Woods.
(3) Shane Woods sustained a bodily injury as a result of the
defendant’s actions.
If you find the State has proved all of the elements, the
defendant is guilty of willful injury causing bodily injury.

(Emphasis added.) The specific-intent instruction provided:

“Specific Intent” means not only being aware of doing an act
and doing it voluntarily, but in addition, doing it with a specific
purpose in mind.
Because determining the defendant's specific intent requires
you to decide what he was thinking when an act was done, it is
seldom capable of direct proof. Therefore, you should consider the
facts and circumstances surrounding the act to determine the
defendant's specific intent. You may, but are not required to,
conclude a person intends the natural results of his acts.

The State did not attempt to prove and does not assert there is any evidence

Mong specifically intended to kill or injure Shane Woods. The State’s theory of the

case was that Mong intended to shoot Ricco Martin. In closing, the State explained

transferred intent: “So if your intent is against A and you hit B, you get prosecuted

for hitting B.”

In its argument for a new trial, the defense stated “[B]ased on the

instructions that were provided to the jury, the jury could not come back with the

verdict they came back with.”

The State relies upon the transferred-intent jury instruction:

Under the doctrine of transferred intent, once the intent to
inflict harm on one victim is established, the criminal intent transfers
to any other victim who is actually assaulted. A party is liable for a
wrongful act, where there exists a criminal intent, although the act
19

done, is not that which was intended. The wrongful intent to do one
act, is transposed to the other, and constitutes the same offense.

Had each of the italicized portions of the jury instructions set out above

stated the intended target of the offenses was Ricco Martin or “Shane Woods or

another,” the jury might have found a transferred intent to Shane.7 For example:

In Count I, the State must prove all the following elements of
Attempt to Commit Murder:
(1) On or about June 1, 2018, the Defendant, Anthony
Alexander Mong shot Shane Woods with a firearm.
(2) By his acts, the defendant, Anthony Alexander Mong
expected to set in motion a force or chain of events which could have
caused or resulted in the death of Shane Woods.

7 See, e.g., People v. Hill, 658 N.E.2d 1294, 1297–98 (Ill. App. Ct. 1995). In Hill,
the jury was instructed:
To sustain the charge of attempt first degree murder of Jose
Tanon, the State must prove the following propositions:
(1) That defendant performed an act which constituted a
substantial step toward the killing of Jose Tanon; and
(2) That defendant did so with the intent to kill Jose Tanon.
To sustain the charge of attempt first degree murder of
Elizabeth Perez, the State must prove the following propositions:
(1) That the defendant performed an act which constituted a
substantial step toward the killing of Elizabeth Perez; and
(2) That defendant did so with the intent to kill Elizabeth or
another.”
....
Although defendants contend they lacked a specific intent to
kill Elizabeth, it is difficult to ignore the notions that (1) defendants
threatened both Jose and “his family,” and (2) spraying a house with
gunfire constitutes a substantial step toward the commission of
murder. Further, the defendants appear to ignore the theory of
transferred intent explicitly applied to the count for Elizabeth.
The law is well settled that where a person shoots at one with
intent to kill and murder, but kills one whom he did not intend to injure,
he is not absolved from answering for the crime of murder.
Moreover, the doctrine of transferred intent is applicable in attempt
murder cases. Accordingly, if the evidence established that
defendants had a specific intent to kill Jose, which the jury found,
then that intent is transferred to Elizabeth under the doctrine of
transferred intent, and defendants’ convictions were proper.
(Internal citations omitted.)
20

(3) When the defendant acted, he specifically intended to
cause the death of Shane Woods or another.
If the State has proved all of these elements, the defendant is
guilty of attempt to commit murder.

But there is no evidence to support the three convictions here because there

is no evidence to support the element Mong had a specific intent to cause the

death of, intimidate, or cause bodily injury to Shane Woods. We therefore reverse

the convictions for attempted murder, intimidation with a dangerous weapon, and

willful injury. We affirm the conviction for going armed with intent.

IV. Conclusion.

Because Mong did not have the benefit of the Plain/Lilly/Veal line of cases,

and because he is entitled to access the information needed to enforce his

constitutional right to a jury trial and was not given access to that information, we

will remand to give him an opportunity to develop his arguments. We affirm the

district court’s denial of Mong’s motion to compel. Finally, there is no evidence of

a specific intent to harm or kill Shane Woods and, thus, there is insufficient

evidence to support the charges of attempted murder, intimidation with a

dangerous weapon, and willful injury causing bodily injury. We reverse those

convictions. We conditionally affirm the conviction for going armed with intent and

remand the matter to the district court for development of the record on the

challenge to the composition of the jury. Following development of the record, we

direct the district court to determine whether Mong’s constitutional right to a

representative jury was violated. If so, the court shall grant a new trial.

REVERSED IN PART, AFFIRMED ON CONDITION IN PART, AND

REMANDED.