State of Iowa v. James William Thiel Sr.

IN THE COURT OF APPEALS OF IOWA

No. 22-1293
Filed January 10, 2024

STATE OF IOWA,
Plaintiff-Appellee,

vs.

JAMES WILLIAM THIEL SR.,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Scott County, Patrick A. McElyea,

Judge.

A criminal defendant appeals his two convictions for involuntary

manslaughter. AFFIRMED.

Leon F. Spies of Spies & Pavelich, Iowa City, for appellant.

Brenna Bird, Attorney General, and Timothy M. Hau, Assistant Attorney

General, for appellee.

Heard by Tabor, P.J., Buller, J., and Doyle, S.J.*

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

(2024).
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BULLER, Judge.

A jury found James Thiel guilty of two counts of involuntary manslaughter.

The convictions stem from a two-boat crash on the Iowa side of the Mississippi

River. On appeal, Thiel claims the State violated his right to due process by

suppressing two draft diagrams drawn by an expert witness before trial. He also

argues there was insufficient evidence to support his convictions. And he asserts

the verdict was inconsistent and against the weight of the evidence. On our review,

we affirm Thiel’s convictions.

I. Background Facts and Proceedings

One August 2020 afternoon, Craig Verbeke, Anita Pinc, and their black

Labrador Retriever Lily met people for lunch after Sunday church, as was weekly

tradition. On this particular day, the couple dined with family, including two of

Verbeke’s daughters. The group chose that location because it was close to the

Mississippi River, and they planned to boat that afternoon on Pinc’s nineteen-foot

Bayliner speed boat. After lunch, Verbeke and Pinc went out on the Bayliner,

accompanied by Lily. A spectator tubing on the river later described the Bayliner

nearly hitting a rock pile and idling in the path of boat traffic.

Thiel, his wife, their three sons, and an employee’s family had a similar

afternoon. The group got on the Thiel family’s boat—a thirty-five-foot Triton—just

after noon and had lunch upriver. Throughout the day, Thiel’s fifteen-year-old son

was operating the boat. Thiel described his son as “a different breed when it

comes to boating” who “always wanted to jump up in the seat with me and drive.”

Thiel’s son got his boater’s license at twelve, and Thiel thought him to be “an

extremely responsible and capable boater,” with experience operating the Triton.
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Thiel’s group was joined by some friends in a Scarab jet boat shortly after

lunch. Both groups boated on the river and met up again later in the afternoon

near some sand pits. After that, the Scarab group invited the Triton group to their

cabin for brisket. The Scarab group left “a little bit before” the Triton group, with

Thiel’s son piloting the Triton.

The groups initially took diverging paths: the Triton went down the main

channel of the river, and the Scarab took shallower backwaters. But the two boats

converged before long, as they made their way into LeClaire.

According to the Scarab’s pilot, they were going 45 miles per hour (mph) as

they approached the Riverboat Twilight (Twilight), a large ferry boat near a boat

ramp. Thiel’s son recalled he was piloting the Triton around 40 mph. Thiel

reported he was standing in the back of the boat, behind the console, and wasn’t

giving his son any instructions: his son was “always in control of the boat.”

According to Thiel’s son, the Scarab “was always a ways ahead of” them. Another

passenger on the Scarab echoed this, claiming the Triton was following in the

Scarab’s wake, which is “the safest place to be when you’re driving back.” Thiel

and that passenger both testified the two boats were never side-by-side or racing.

But disinterested witnesses on and around the river that day told a different

story. These witnesses saw the Triton and the Scarab racing as they came into

town—close to shore—with “[p]robably a boat’s distance between each other” and

the Scarab in the lead. The witnesses used varied and colorful language to

describe the racing, but they were unanimous in describing the danger they

perceived on the water:
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A witness along the waterfront: “I told [the police the Triton and
Scarab] were hauling ass . . . .”

A woman sitting on a bench next to the river: “Because the speed
of how fast they were going . . . [it] felt like neck and neck, you know
what I mean? Like, the one flew by, then the bigger one was right
behind it. It just—and it was very excessive, the speed. And like I
said I don’t know what the mile per hour is but it was very fast.”

A motorcyclist along the river: “[A]s we were approaching the
Twilight there was two boats that came flying by at a high rate of
speed next to the river. It actually startled me on the bike. And then
at some point in time we heard a noise and the wife tapped me on
the shoulder and said, ‘You better turn around.’ So we turned
around.”

The motorcycle passenger: “[T]hey were side by side going the
same speed and almost like neck and neck. So it appeared to me
that they were racing.”

A passenger on another boat on the river: “I mean, for lack of a
better way to say it, it seemed like they were almost scissoring at
each other, just kind of going at each other, you know, racing and
maybe taunting each other.”

Another passenger on that same boat: “[T]hey were going at a
good rate of speed. They were moving very fast and what I
remember the most is seeing all the multicolored life jackets up in the
front of the [Triton]. Appeared to be a bunch of children up in the
front. We kind of had a conversation, you know, ‘why would you be
driving like that with all those kids in the boat?’”

A teacher eating at a restaurant along the river: “I heard two boats
open up which means they were just flooring it. They were going at
a high rate of speed and it drew my attention. So I looked over my
shoulder and I saw two boats side by side close to each other and
close to the shore. And I remember making a comment to my wife,
‘Look at those idiots racing past the boat landing that close.’”

A woman eating dinner with her husband near the boat-ramp
parking lot: “I said, ‘My God, he’s flying.’ And then as they went
past us both of us said, ‘Oh, my God, he’s going to hit him.’”

A passenger on another boat: “I’m sure that we made a lot of
comments that I don’t know if you want me to elaborate on here [in
the courtroom], but one of them was definitely, ‘They’re going to kill
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someone.’ I just don’t think any of us expected that to happen a few
minutes later.”

While the Scarab and the Triton approached the Twilight, an aluminum

fishing boat was moving downriver. One of the fishing boat’s passengers saw the

Scarab go by “a little fast for a heavy populated boat area.” After the Scarab, the

men in the fishing boat saw Verbeke pilot the Bayliner “across the [Scarab’s]

waves” upriver “straight” into their path. But then the Bayliner “veered off . . . very

close” to the fishing boat, toward the other side of the river. Some witnesses

described the Bayliner as “just kind of tootling along, not moving very fast”; others

described the vessel as “sitting sideways in the middle of the river.” After this

change in direction, the Triton and the Bayliner collided.

Thiel and his son claimed to see the Bayliner hitting waves a “little bit like

near” the Twilight before the collision. Thiel’s son testified the Bayliner then “cut

across our path like they were cutting us off,” so he began to slow down and call

for Thiel to come up from the back. “I was like, ‘Dad, I don’t know what these guys

are doing. They’re driving crazy.’ And I was just yelling for him to come up and

that’s what he did.” But Thiel testified he didn’t make it in time. According to Thiel’s

son, the Bayliner “show[ed its] nose like it was going to the right of us” so he

“instinctively turned left to try and avoid them.” But despite trying to “avoid the

Bayliner at all costs,” Thiel’s son claimed the boat “turned back into us” leading to

a collision.

Other witnesses gave differing accounts of the collision. Some testified the

Bayliner hit the Triton: “It’s my opinion that the little boat went right in the direction
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of where the [Triton] was going . . . .” And some witnesses testified the other way:

“The big [boat] slammed into the little one.”

The collision launched Thiel from the Triton into the river. He surfaced near

the Bayliner and swam on board. Thiel discovered Verbeke near the Bayliner’s

console “slumped over the side of the boat” and could not tell if he was breathing.

Thiel attempted cardiopulmonary resuscitation (CPR) on Verbeke.

Meanwhile, on the Triton, Thiel’s son “was shook.” He testified that, “once

[the Bayliner] hit us it was like a blank in my mind, and then when I came back to

it [Thiel] was just gone and I didn’t know where he went. I was freaking out.” One

of the Triton’s passengers called 911 and gave Thiel’s son the phone. He told the

operator: “We were going really fast and this boat pulled out in front of us. And we

hit them.”

Multiple law enforcement agencies, including the Iowa Department of

Natural Resources (DNR), responded. Once the Bayliner was towed to shore,

Thiel disembarked so firefighters could board. The firefighters declared Pinc dead

at the scene. A medical examiner later determined her cause of death was blunt

force injuries to the head, neck, and trunk. Verbeke still had a pulse, and first

responders took him to the hospital. He died three days later from injuries

sustained in the collision.

Thiel spoke with police shortly after the crash and gave his version of

events:

We’re coming down the river. And all of a sudden, out of nowhere,
this boat turns left into us. And I’m sitting at this helm with my son
. . . and he’s like “dad, dad, dad!” and I said “well shut it down, shut
it down.” And he comes and he hits us. And I’m on the right side of
the boat and knocks me out of the boat. And I get up . . . I look
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around and all of a sudden I see this boat. And I climb up in this boat
and I didn’t know there was anybody in it or not anybody in it. I
jumped in and I found the driver. So I started giving him CPR. And
I gave him CPR all the way . . . my friends pulled him back in. And
I’m giving him CPR all the way back in man . . . I’m telling you we
were going straight down the river and he came, we could not avoid
him.

That night, Thiel and others on the Triton maintained the Bayliner crashed

into them. And Thiel continued to say he was right next to his son at the helm

during the collision. Thiel’s son told a DNR officer the Triton was “a little bit behind”

the Scarab at the time of collision. And the Scarab’s pilot told the DNR’s lead

investigator, Officer Travis Graves, they were “to the side” of the Triton before the

collision. Both the Bayliner and Triton had coolers filled with alcohol on board.

Verbeke’s blood alcohol content was .102—over the .08 legal limit. Thiel recalled

he’d had at least seven drinks that day, starting around noon.

Following a DNR investigation, the Scott County Attorney charged Thiel with

four counts of involuntary manslaughter. Two counts alleged involuntary

manslaughter by commission of a public offense, class “D” felonies in violation of

Iowa Code section 707.5(1)(a) (2020). The other two counts alleged involuntary

manslaughter by acting in a manner likely to cause death or serious injury,

aggravated misdemeanors in violation of section 707.5(1)(b).

Based on results from the investigation, a DNR officer opined the damage

to the Bayliner was inconsistent with it hitting the left side of the Triton. And a

Wisconsin DNR officer helping with the investigation concluded the damage

instead showed the Triton struck the Bayliner. Relying on global positioning

system (GPS) data from the Triton, the Wisconsin DNR officer surmised: “there

was no evasive action [by the Triton], no change in speed. If there was a course
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direction of change it was very minimal . . . I feel there was no evasive action to

avoid that collision.” The Wisconsin officer could not say, however, whether the

Bayliner turned into the Triton’s path.

Employees of the company that manufactured the Triton’s center engine

extracted and analyzed data from the engine’s electronic control unit. Based on

this data, the employees concluded the Triton was at “full throttle” for most of the

100 seconds right before the collision, traveling approximately 56.9 mph. They

also found the Triton’s engine likely reduced speed in the final seven or eight

seconds of operation.

Iowa DNR Officer Graves, who testified as an expert for the State at trial,

concluded the Triton went over the top of the Bayliner at the time of collision. And

he found this “override or ramping” motion indicated the Triton was operating at a

high speed. Based on the Triton’s GPS data, Officer Graves calculated the boat

was 100 yards from the Twilight and going 54.99 mph one minute before collision.

Officer Graves estimated the Bayliner was going 25 to 35 mph. And he opined the

Triton’s speed was not safe given “[t]he size of the boat, the location, where the

incident happened at, [and] the amount of other boats in the water that day.”

A focus of Officer Graves’s cross-examination was a diagram from his

report, referred to as Exhibit S4. According to Officer Graves, S4 “was used as a

working document just to kind of paint a picture of where everyone was at just to

provide a better understanding of the incident.” He generally agreed S4 was

important to the investigation but “wouldn’t say it was the most important document

in [his] investigation.” The diagram was based on a “compilation of GPS data,
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physical boat damage and eyewitness statements.” Based on that compilation,

the diagram depicted the Bayliner turning right before the collision.

A retired United States Coast Guard officer testified as Thiel’s expert. He

concluded Thiel’s son “was doing what was required” under the circumstances

when he turned the Triton left. Based on his review of Officer Graves’s report and

the underlying witness statements and data, Thiel’s expert determined “the vessels

were not that close except, of course, when they collided. But had they maintained

the course and speed before the collision they would have passed roughly 100

feet apart.” He opined the Bayliner likely “reversed course” and turned into the

Triton’s path. And he submitted Verbeke’s intoxication was the cause of collision.

Thiel’s expert explained his analysis was based on his opinion that S4 was Officer

Graves’s “best determination of where the” boats were.

In rebuttal, Officer Graves testified that S4 was of “very little” importance in

his overall investigation. And he reiterated that the diagram was not to scale.

According to his testimony on rebuttal, the only thing certain on S4 was the position

of the Triton because of its GPS data. The position of all other boats, paths, and

distances was based on the recorded damage and witness testimony.

For the first time on rebuttal cross-examination, Officer Graves testified

there were “working documents” or earlier drafts of S4 that he had provided to the

county attorney’s office. Before the case went to the jury, Thiel moved for

production of any draft diagrams Officer Graves “prepared and furnished to the

county attorney.” Thiel’s attorney made a record that he had not received any draft

documents in discovery and indicated he might move “to reopen the record if

there’s anything of substance about these additional documents.” The district
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court denied the motion based on the county attorney’s statement he provided

everything received from Graves to the defense. The county attorney’s statement

ultimately proved inaccurate: he provided the defense with Graves’s entire

investigative report but not the draft diagrams, which had apparently been e-mailed

separately.

The jury found Thiel not guilty on both counts of involuntary manslaughter

by public offense but convicted on both counts of involuntary manslaughter by

conduct likely to cause death. Thiel polled the jury but made no other requests

when the verdict was returned.

Thiel later moved for a new trial. In his motion, he alleged a violation of his

due process rights by the county attorney’s failure to disclose the draft diagrams

before trial, asserted the verdicts were inconsistent, and asked the court to find the

evidence heavily preponderated against the verdict and warranted a new trial. The

district court orally denied Thiel’s motion for new trial at sentencing and ordered

him to serve concurrent sentences of one year in jail with all but ninety days

suspended for each count.

Thiel appeals.

II. Discussion

Thiel advances four arguments on appeal. First, he reiterates his claim the

State violated his due process rights by not turning over the two draft diagrams.

Second, he asserts his convictions are not supported by substantial evidence.

Finally, he makes two challenges to the ruling on the motion for new trial, asserting

the verdict was inconsistent and it was against the weight of the evidence. The
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State responds to each argument on the merits but also raises error-preservation

and wavier concerns. We address each of Thiel’s claims in turn.

A. Due Process and the Draft Diagrams

A prosecutor’s potential failure to produce exculpatory evidence can violate

due process. Brady v. Maryland, 373 U.S. 83, 86–87 (1963). We review alleged

Brady violations de novo. State v. Leedom, 938 N.W.2d 177, 185 (Iowa 2020).

To show a Brady violation related to the draft diagrams, Thiel had to prove

three elements by a preponderance of the evidence:

1. The prosecution suppressed evidence;
2. This evidence was favorable to the accused; and
3. The evidence was material to the issue of guilt.

Cornell v. State, 430 N.W.2d 384, 385 (Iowa 1988) (citation omitted). The district

court found Thiel proved none of the three. For purposes of this appeal, we focus

on materiality. See State v. Romeo, 542 N.W.2d 543, 552 (Iowa 1996) (opting to

only address one prong of the analysis). On this element, the district court found

the draft diagrams were not material to guilt because they had little impact on trial

preparation, strategy, or the ultimate weight of the evidence.

Suppressed “evidence is material only if there is a reasonable probability

that, had the evidence been disclosed to the defense, the result of the proceeding

would have been different.” United States v. Bagley, 473 U.S. 667, 682 (1985);

accord Harrington v. State, 659 N.W.2d 509, 523 (Iowa 2003). This “reasonable

probability” does not require proof the defendant would “more likely than not” have

been acquitted. Kyles v. Whitley, 514 U.S. 419, 434 (1995). But the evidence

must do more than show the “reasonable possibility” of a different outcome.

DeSimone v. State, 803 N.W.2d 97, 105 (Iowa 2011) (citation omitted). In short,
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we ask whether the suppressed evidence so “undermine[s] our confidence in the

jury verdict” as to warrant a new trial. Romeo, 542 N.W.2d at 552.

In conducting the materiality analysis, we “examin[e] a counterfactual of

how the trial would have played out with timely disclosure.” State v. Cahill, 972

N.W.2d 19, 29 (Iowa 2022). We consider the suppressed evidence collectively,

not “item by item.” Aguilera v. State, 807 N.W.2d 249, 255 (Iowa 2011) (citing

Kyles, 514 U.S. at 436–37). When it comes to impeachment evidence, a new trial

is not warranted when “the impeachment value of [allegedly suppressed] evidence

was merely incremental.” Romeo, 542 N.W.2d at 552.

Thiel’s claim on materiality is largely speculative, arguing he could have

done a better job impeaching Officer Graves if he had the draft diagrams. But

Thiel’s own expert, who reviewed the same underlying substantive evidence that

went into the diagrams, opined that Officer Graves’s final diagram was “one of the

best pieces of work I’ve seen in forty-one years relative to combining all the

information, all the witness statements in coming up with a report.” And Thiel does

not identify any evidence he believes Officer Graves ignored, misunderstood, or

failed to include in the final diagram.

Thiel’s reply brief posits the draft diagrams might have enabled his expert

to “address more accurately the thoroughness of the law enforcement

investigation” or potential bias. But this is a general assertion made without citation

to the record and without the support of additional testimony or a report from his

expert. See State v. Piper, 663 N.W.2d 894, 905 (Iowa 2003) (finding defendant’s

claims that suppressed evidence “hindered the defense team’s trial preparation”

to be “generalized assertions” when defendant did not specify how that evidence
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“would have called his guilt into question or changed his trial strategy”), overruled

on other grounds by State v. Hanes, 790 N.W.2d 545, 551 (Iowa 2010)).

The district court below correctly pointed out the State did not offer or rely

on the final diagram at trial, which suggests it had limited value to the prosecution’s

overall case. Although Officer Graves conceded the exhibit was important to his

investigation and the diagram was his best attempt at compiling the facts, he

testified the real purpose of the diagram was “to help paint a picture” for readers

of his report. The trial was replete with testimony from many of the eyewitnesses

relied on by Officer Graves in creating the diagram, and the witnesses consistently

described how Thiel’s boat was operated at a reckless speed before the fatal

collision. See Aguilera, 807 N.W.2d at 257 (noting we consider whether the

suppressed evidence “would change the defendant’s trial strategy” in assessing

materiality). These witnesses were subject to well-prepared cross-examination,

and Thiel offers no concrete explanation for how that testimony would have

unfolded differently with timely disclosure of the draft diagrams.

Overall, we find Thiel did not carry his burden to prove “the trial would have

taken on a different dynamic” if he had received the two draft diagrams in

discovery. DeSimone, 803 N.W.2d at 106. To the extent the drafts may have

helped better cross-examine Officer Graves or supplied additional ammunition for

Thiel’s expert to undermine Graves, any impeachment value would be “merely

incremental” and does not shake our confidence in the verdict so as to warrant a

new trial. See Romeo, 524 N.W.2d at 552; see also Watkins v. Medeiros, 36

F.4th 373, 390–91 (1st Cir. 2022) (finding no Brady violation in a federal habeas

case when State failed to produce a “crime scene diagram” created by police that
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was “not drawn to scale” and “would have a nominal effect on impeaching” the

State’s key witness). Finding a failure of proof on the materiality prong of the

analysis, we affirm the district court’s rejection of Thiel’s Brady claim.

B. Sufficiency of the Evidence

Thiel next argues there was insufficient evidence to support the jury’s

verdict on his two manslaughter convictions. We review sufficiency claims for

correction of legal error. Cahill, 972 N.W.2d at 27. While reviewing, “[w]e are

highly deferential to the [fact-finder]’s verdict” because it “binds this court if the

verdict is supported by substantial evidence.” Id. (quoting State v. Jones, 967

N.W.2d 336, 339 (Iowa 2021)). In deciding whether evidence is substantial, “we

view the evidence in the light most favorable to the State, including all ‘legitimate

inferences and presumptions that may fairly and reasonably be deduced from the

record evidence.’” Jones, 967 N.W.2d at 339 (quoting State v. Tipton, 987 N.W.2d

653, 692 (Iowa 2017)).

Before the merits, we address the State’s claim Thiel waived this argument

by failing to adequately brief it. Thiel’s opening brief sets out a sufficiency

challenge in the second heading, and he recites the correct standards of review at

the start of his discussion section. But according to the State, Thiel failed to offer

an “argument containing [his] contentions and the reasons for them with citations

to the authorities relied on and references to the pertinent parts of the record” within

the body of his challenge. See Iowa R. App. P. 6.903(2)(g)(3). In his reply brief,

Thiel points us to pages where he says he challenged sufficiency. But even those

pages blur the sufficiency and weight-of-the-evidence analyses. See State v.

Reeves, 670 N.W.2d 199, 202 (Iowa 2003) (explaining the difference between
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these arguments); State v. Rivers, No. 18-0365, 2019 WL 2150807, at *1 n.2 (Iowa

Ct. App. May 15, 2019) (reiterating that a sufficiency-of-the-evidence challenge

and a weight-of-the-evidence challenge are “free-standing substantive

argument[s]” that require more than “boilerplate citations to legal authorities”).

Assuming without deciding Thiel did not waive his sufficiency argument, we

address the merits.

A person commits misdemeanor involuntary manslaughter “when the

person unintentionally causes the death of another person by the commission of

an act in a manner likely to cause death or serious injury.” Iowa Code

§ 707.5(1)(b). Under our case law, recklessness is also required. State v. Conner,

292 N.W.2d 682, 686 (Iowa 1980). As marshaled, the State had to prove:

1. On or about the 16th day of August, 2020, [Thiel] recklessly
allowed the vessel to be operated in an unsafe manner.
2. [Thiel] did the act in a manner likely to cause death or
serious injury.
3. By doing the act, [Thiel] unintentionally caused the death of
Craig Verbeke [and Anita Pinc] . . . .

The jury instructions guide our sufficiency analysis. See State v. Canal, 773

N.W.2d 528, 530 (Iowa 2009). As marshaled, causation is met if Thiel’s actions

were “a substantial factor” in Pinc and Verbeke’s deaths and their deaths “would

not have happened except for [his] acts.” On recklessness, the instructions

required proof Thiel “willfully disregard[ed] the safety of persons or property,” which

is “more than a lack of reasonable care which may cause unintentional injury” and

instead requires proof he acted “consciously . . . with willful disregard of the

consequences.” The jury was also instructed “the danger must be so obvious that
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the actor knows or should reasonably foresee that harm will more likely than not

result from the act.”

Thiel’s argument on appeal boils down to his view the jury believed the

wrong witnesses and came to the wrong conclusion. He highlights that some

witnesses on the Triton and Scarab testified the boats were not racing and that his

expert found his son’s turn left turn proper under the circumstances. He also

emphasizes witness testimony describing the Bayliner’s dangerous boating activity

earlier in the day to support his claim the Bayliner crossed into the Triton’s path.

(We assume without deciding this argument about the Bayliner does not run afoul

of Iowa Rule of Evidence 5.404’s bar on propensity evidence.) Finally, he flags

Verbeke’s potential intoxication as a cause of the collision.

Accepting or rejecting testimony is the role of the jury—not our appellate

courts. See State v. Nitcher, 720 N.W.2d 547, 556 (Iowa 2006). Jurors could have

chosen to believe Officer Graves’s testimony that the Triton should have turned

right to avoid colliding with the Bayliner. The jury was also free to believe the host

of witnesses on the river who saw the Triton and Scarab as “idiots racing,” “hauling

ass” like “they’re going to kill someone.” Analysis of the Triton’s GPS and engine

data bolstered this eyewitness testimony by demonstrating the Triton was going

dangerously fast. Finally, the jury could accept or reject observations about how

the Bayliner was operating that day and still find Thiel allowing his son to race the

Triton in busy waters was reckless. Given this record, substantial evidence

supports the convictions and Thiel has given us no basis for disturbing the jury

verdict.
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C. The Post-Trial Inconsistent-Verdicts Challenge

Thiel next claims the jury returned an inconsistent verdict when it acquitted

him of manslaughter by public offense but convicted him of manslaughter by

conduct likely to cause death. He argues he is owed a new trial. We address

error-preservation concerns voiced by the State before moving to the merits.

1. Was the inconsistent-verdict challenge preserved?

The State’s error-preservation argument is twofold. First, it asserts the

district court failed to rule on Thiel’s inconsistent-verdict argument when denying

his weight challenge, leaving us with no ruling to review. And second, the State

argues “a post-verdict motion for new trial is not the preferred mechanism for

identifying and correcting inconsistent verdicts” and Thiel failed to preserve error

because he did not raise the issue before the jury was discharged.

Starting with the first argument, Thiel maintains the district court’s oral

denial of his weight challenge encompassed his inconsistent-verdict argument, on

the theory that the court ruled “the motion for new trial is denied” and implicitly

rejected all claims made in the motion, even though the court did not expressly

address inconsistent verdicts. Given our disposition of this issue on the merits, we

assume without deciding error was preserved.

Moving to the second error-preservation hurdle, Thiel candidly

acknowledges raising an inconsistent-verdict challenge before discharging the jury

“may be the preferred method.” But he insists the challenge is properly before us

based on how similar claims have been treated in the past. See State v. Halstead,

791 N.W.2d 805, 807 n.1 (Iowa 2010) (noting the State conceded error

preservation); State v. Hernandez, 538 N.W.2d 884, 888–89 (Iowa Ct. App. 1995)
18

(reviewing an inconsistent-verdicts claim first brought by post-trial motion while

recognizing the claimed error arose when the verdict was returned). Our case law

recognizes this remains a murky issue and we’ve avoided deciding whether raising

the challenge before discharge of the jury is required. See State v. Merrett, 842

N.W.2d 266, 276 (Iowa 2014) (declining to rule on whether the doctrine of invited

error applies); see also State v. LuCore, 989 N.W.2d 209, 219 & n.9 (Iowa Ct. App.

2023) (“[s]idestepping” error-preservation issues for an inconsistent-verdicts claim

following a bench trial, but noting the State’s position that a post-trial motion would

preserve error there). We opt again to reach the merits, leaving this thorny error-

preservation question for another day when it may be dispositive. See State v.

Doorenbos, No. 19-1257, 2020 WL 3264408, at *3 (Iowa Ct. App. June 17, 2020)

(opting to review an inconsistent-verdicts claim despite the State making a similar

preservation argument).

2. Were the verdicts legally inconsistent?

“The consequence of a potentially inconsistent jury verdict is a question of

law” that implicates a defendant’s constitutional rights. Merrett, 842 N.W.2d

at 272; see also Halstead, 791 N.W.2d at 814–16. Our review is de novo. Merrett,

842 N.W.2d at 272–73.

When we examine jury verdicts for inconsistency, we ask whether the

verdicts are “so logically and legally inconsistent as to be irreconcilable within the

context of the case.” State v. Fintel, 689 N.W.2d 95, 101 (Iowa 2004). In doing

so, we liberally construe the verdicts “to give effect to the intention of the jury and

to harmonize the verdicts if it is possible to do so.” State v. Goodon, No. 19-0174,

2020 WL 2060301, at *3 (Iowa Ct. App. Apr. 29, 2020).
19

In returning a guilty verdict for involuntary manslaughter by conduct likely to

cause death, the jury needed to find Thiel “recklessly allowed the vessel to be

operated in an unsafe manner.” Thiel alleges the inconsistency lies in the jury

simultaneously acquitting him of involuntary manslaughter by public offense, which

means the jury found one or more of these elements was not proven beyond a

reasonable doubt:

1. On or about the 16th day of August, 2020, the Defendant,
or someone he aided and abetted, recklessly committed the crime of
Prohibited Operation of a Vessel . . . .
2. When the Defendant committed the crime, he
unintentionally caused the death of Craig Verbeke [and Anita
Pinc] . . . .

The marshalling instructions defined prohibited operation of a vessel to mean

“operating any vessel in a careless, reckless or negligent manner so as to

endanger the life, limb or property of any person.”

Based on the elements, Thiel argues the verdicts are legally inconsistent

because the jury had to believe Thiel or someone he aided and abetted operated

the Triton in a “careless, reckless, or negligent manner.” Thiel equates the jury’s

finding that he did not aid and abet in the reckless operation of the Triton with its

conclusion that he “recklessly allowed the [Triton] to be operated in an unsafe

manner.” According to Thiel, for the jury to find he “recklessly allowed” his son to

operate the Triton unsafely, it would necessarily need to find he aided and abetted

another in operating the boat in a careless, reckless, or negligent manner. See

Doorenbos, 2020 WL 3264408, at *4 (noting many inconsistent-verdict challenges

involve offenses with overlapping elements).
20

As our case law recognizes, and the jury here was correctly instructed, a

person aids and abets in the commission of a crime when they knowingly approve

and agree to a “criminal act either by active participation or by some manner

encouraging it prior to or at the time of its commission.” State v. Lilly, 930

N.W.2d 293, 308 (Iowa 2019) (citation omitted); see also State v. Allen, 633

N.W.2d 752, 754 (Iowa 2001). In contrast, the word “allow” carries no precise legal

definition and no explanation in the jury instructions. A legal dictionary’s definition

of “allow” identifies eleven different meanings. See Allow, Black’s Law Dictionary

(11th ed. 2019). Two notable definitions include the more-passive “[t]o put no

obstacle in the way of; to suffer to exist or occur; to tolerate” and the more-active

“[t]o give consent to; to approve.” Id. A non-legal dictionary offers eight definitions,

including “to let do or happen; permit,” “to make provision for,” and “to admit; grant.”

See Allow, American Heritage Dictionary 96 (2d college ed. 1985).

Despite this deluge of definitions, we need not choose one to the exclusion

of all others. State v. Ellison, 985 N.W.2d 473, 482 (Iowa 2023) (words in a jury

instruction need not be defined when they are not “beyond the lexicon of a

reasonable juror”); Thongvanh v. State, 494 N.W.2d 679, 684 (Iowa 1993) (words

do not require definition when they are “a term of common usage and readily

understandable”). Even assuming jurors understood “allow” to carry a more-active

meaning—that Thiel recklessly consented to, approved of, or permitted the

reckless operation of the Triton—the jury could have concluded that fell short of

the active participation or encouragement required to prove aiding and abetting.

See Lilly, 930 N.W.2d at 308; Allen, 633 N.W.2d at 754. We are mindful that we

need not delve into the facts in resolving an inconsistent-verdicts challenge. See
21

Halstead, 791 N.W.2d at 815. But we think the facts support our conclusion that

the elements are not legally inconsistent. The jury here could have found both that

Thiel did not actively participate in or encourage his son’s recklessness (so he did

not aid and abet) and that Thiel knew his son was operating the boat at a reckless

speed and did nothing to stop him (so he permitted reckless operation). Because

we can harmonize the verdicts, we reject Thiel’s plea that we peer into “Pandora’s

box by probing into the sanctity of jury deliberations.” See id.

We also find a second legal distinction between elements of the allegedly

inconsistent manslaughter offenses: the required manner of operation. For the

jury to find Thiel guilty of manslaughter by public offense, jurors had to find the

Triton was operated “in a careless, reckless or negligent manner so as to endanger

the life, limb or property of any person.” But for Thiel to be convicted of

manslaughter by conduct likely to cause death, the jury only had to find the vessel

was operated in an “unsafe manner.” Thiel asserts that “operating a boat in an

‘unsafe manner’ is the same as operating it carelessly or negligently.” But Thiel

cites no case law supporting this conclusion, did not argue it to the jury, and never

requested an instruction to that effect. When we liberally construe the verdicts in

search of harmony, we find the jury could have concluded Thiel’s son operated the

boat in an unsafe manner that was less than careless or negligent. See Goodon,

2020 WL 2060301, at *3 (on harmonizing verdicts). The verdicts were not legally

inconsistent.

D. Weight of the Evidence

Thiel concludes by contending the jury’s verdict was “contrary to the weight

of the evidence.” See Iowa R. Crim. P. 2.24(2)(b)(6) (2021). When evidence
22

“preponderates heavily” against a verdict, the district court may grant a new trial to

avoid a miscarriage of justice. State v. Ellis, 578 N.W.2d 655, 658–59 (Iowa 1998)

(citation omitted). This standard requires the district court to “weigh the evidence

and consider the credibility of witnesses.” Id. at 658 (citation omitted). But on our

review, we don’t independently re-weigh evidence or judge a witness’s credibility

for ourselves—we review the district court’s exercise of discretion, only reversing

when a ruling rests on plainly untenable grounds or was clearly unreasonable.

State v. Taylor, 689 N.W.2d 116, 134 (Iowa 2004).

Much of Thiel’s argument on this ground is a repackaged challenge to the

sufficiency of the evidence. He points to allegedly conflicting testimony and urges

that the greater weight of credible evidence favored acquittal rather than

conviction. In rejecting this claim below, the district court found:

[T]his case was pretty clearly a credibility determination for the jury,
and . . . they made their determination that the Thiel boat was being
driven unsafely and in a manner likely to cause death or serious
injury. That they found the conduct was reckless. And in addition to
the subjective evidence of the witnesses that were presented, the
jury also clearly found the objective evidence credible such as the
GPS and speed information as well as to the damage of the boats.
And so the Court finds that their finding is supported by the weight of
the evidence.

Thiel offers no reason to believe this analysis was clearly unreasonable or

untenable. While there was some conflicting evidence over whether the Triton was

racing and whether the Bayliner crossed into the path of the Triton, every

eyewitness other than those in the Triton or Scarab saw the Triton racing, and their

accounts speak directly and colorfully to recklessness. Based on the uniformity

among disinterested witnesses and the “objective evidence” described by the

district court, this is not an “exceptional case[ ]” where “the evidence
23

preponderates heavily against the verdict.” Reeves, 670 N.W.2d at 202 (citation

omitted). The district court was in a better position than we are to assess

credibility, and we discern no abuse of discretion in the new-trial ruling.

III. Disposition

We leave the error-preservation and waiver questions concerning

inconsistent verdicts for another day and reject Thiel’s challenges to his

convictions on the merits.

AFFIRMED.