State of Iowa v. Dreasean Maurice Barber

IN THE COURT OF APPEALS OF IOWA

No. 18-0038
Filed February 20, 2019

STATE OF IOWA,
Plaintiff-Appellee,

vs.

DRESEAN MAURICE BARBER,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Karen A. Romano,

Judge.

Dresean Barber appeals his convictions to one count of second-degree

murder and one count of assault with intent to inflict serious injury. AFFIRMED.

Andrew Dunn and Gina Messamer of Parrish Kruidenier Dunn Boles Gribble

Gentry Brown & Bergmann L.L.P., Des Moines, for appellant.

Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney

General, for appellee.

Considered by Tabor, P.J., and Mullins and Bower, JJ.
2

MULLINS, Judge.

A jury convicted Dresean Barber of second-degree murder and assault with

intent to inflict serious injury in relation to the 2015 shooting death of Edmanuel

Perez and wounding of Andrew Hurley-Boyd. On appeal, Barber challenges the

district court’s denial of his right to present a defense based upon statutes that

were amended after he was arrested and charged. He also challenges the court’s

denial of his motion for mistrial or alternatively its refusal to voir dire the jury, after

a mass shooting occurred in Las Vegas during jury deliberations. Barber further

contends the court abused its discretion in failing to clear the jury’s confusion on

malice aforethought. Barber also claims the prosecutor’s questions during cross-

examination constituted prosecutorial misconduct. Lastly, Barber contends the

jury’s verdicts were not supported by substantial evidence.

I. Background Facts and Proceedings

Upon the evidence presented at trial, a reasonable jury could make the

following factual findings. Prior to 2013, Barber was a member of a group of

friends, which included Perez, Hurley-Boyd, and Perez’s brother, Eddie. At some

point in 2013, there was a physical altercation between members of the group,

including Perez and Barber, which resulted in a falling out and Barber’s exclusion

from the group. Between that time and November 29, 2015, tension continued

between Barber and the other members of the group, which resulted in further

altercations, including some that were physical. There was no law enforcement

intervention in any of these occurrences.

During the late-night hours of November 28 and into the early-morning

hours of November 29, Perez, Hurley-Boyd, and other members of the group met
3

at Hurley-Boyd’s apartment to drink and socialize before heading downtown to the

local bar and club area. Some of the group also smoked marijuana while at the

apartment. Once downtown, the group ended up in a building that houses multiple

bars and clubs. A common stairwell provided access to the various floors and

establishments. The group initially entered the same bar and continued to drink

but eventually split up to go to the other bars in the building. Before closing time,

several members of the group decided it was time to leave and proceeded to locate

the others and inform them it was time to go. At some point, members of the group

encountered Barber.

The parties differ as to the nature of this meeting and the resulting shooting.

Barber’s version is that he went outside to smoke with his cousin and a friend.

Perez and another group member approached him and exchanged words. Barber

called his brother to pick him up and waited for his brother inside. Once his brother

arrived, he left the building and ran into Hurley-Boyd and another group member.

Words were again exchanged. Hurley-Boyd and the other group member yelled

at him and were ready to fight. Barber explained that he was just trying to leave

and flashed his gun in hopes they would leave him alone. Barber backed up

toward a parking ramp but Perez, Eddie, and other group members were in the

street heading toward him, resulting in Barber being pushed against a vehicle.

Barber pulled his gun and shot into the air, causing Hurley-Boyd to stop. However,

Perez continued to move toward Barber, so Barber shot Perez. Hurley-Boyd then

swung at Barber, so Barber shot Hurley-Boyd. After shooting Hurley-Boyd, Barber

fled the scene with his brother and disposed of the gun. The next day, Barber

learned Perez had died.
4

Hurley-Boyd’s version was that he and another member of the group were

attempting to gather the other members to meet outside in order to leave. Hurley-

Boyd exited the building, and when he was about to reenter the building, he

encountered Barber near the entryway. Both became defensive and were ready

for a fight, at which point Barber displayed the gun he was carrying in his

waistband. After seeing the gun, Hurley-Boyd testified he put his hands in the air,

backed up out of the entry way, and let everyone in the area know Barber had a

gun. Hurley-Boyd turned around and was hit in the face with a gun by someone

he believed was with Barber. Hurley-Boyd then heard a shot and when he turned

around he saw Barber pulling his gun down from the air. Hurley-Boyd did not

remember anything else until he woke up from a coma.

Eddie’s version is that as he and Perez were gathering the other group

members, he ran into Barber, who was with a group of about ten other people.

Eddie left the building in order to avoid being cornered and moved into the middle

of the street. He saw one of Barber’s friends hit Hurley-Boyd in the head with a

gun and another friend threw a bottle toward Perez and himself. Eddie then saw

a gun flash over Barber’s head, who was approximately ten to fifteen feet away

near the sidewalk. Perez told Eddie he had been shot so Eddie attempted to give

first aid. After the gun shots, everyone in the vicinity scattered and Barber

disappeared into the crowd. Police secured the scene and medical personnel

tended to Perez and Hurley-Boyd.

Barber shot Perez in the right chest area, tearing a hole in his aorta. He

died from the resulting blood loss. Barber shot Hurley-Boyd in the side. Hurley-

Boyd spent over a month in the hospital, requiring several surgeries. He was also
5

in a coma for a period of time. The State charged Barber with one count of first-

degree murder and one count of attempt to commit murder. The case proceeded

to a jury trial. Prior to trial, Barber provided notice that he would assert a

justification defense. He also filed a motion asking the court to recognize and allow

him to present his justification defense based upon amendments to the Iowa Code

enacted by House File 517, commonly referred to as the “stand your ground”

defense. See generally 2017 Iowa Acts ch. 69, §§ 37–44. House File 517 took

effect largely on July 1, 2017.1 The court denied his request, finding the shooting

occurred before the amendments to the code and the amendments were

prospective, not retrospective, in nature. During arguments concerning proposed

jury instructions, the defense renewed its argument and asked the court to provide

instructions to the jury consistent with the amended statutes. The court again

denied Barber’s request. The court’s instructions to the jury included Barber’s

justification defense as defined in the code prior to the July 1 amendments.

The trial commenced on September 18, during which Barber testified on his

own behalf. The jury began deliberations on Friday, September 29. By the end of

the day, the jury had not yet reached a verdict, so the court released the jury for

the weekend. Over the weekend break, a shooting in Las Vegas occurred which

lead to numerous deaths and injuries and had prominent coverage in news media.

Once court resumed on Monday, October 2, the defense sought a mistrial, arguing

the shooting and subsequent news reports prejudiced the jury, therefore Barber

1
The act expressly provided several amendments to the Code took effect immediately
upon enactment on April 13, none of which are applicable to this case. See 2017 Iowa
Acts ch. 69, § 50; see also Iowa Const. art. III, § 26 (providing legislation with no express
effective date becomes effective on July 1 of the year of enactment).
6

could no longer receive a fair trial. Alternatively, the defense argued the court

should poll the jury to determine what, if any, prejudicial effect the shooting may

have had on the jurors. The court denied both requests.

The jury ultimately found Barber guilty of two lesser-included offenses:

second-degree murder and assault with intent to inflict serious injury. Barber filed

a motion for a new trial or for judgment of acquittal, raising twenty-six different

claims. The court denied the motion and proceeded to sentencing. The court

sentenced Barber to an indeterminate term of incarceration not to exceed fifty

years with a mandatory minimum of thirty-five years for the murder offense and an

indeterminate term of incarceration of two years for the assault offense, to run

consecutively. Barber appeals.

II. Analysis

A. Justification Defense

Barber first claims the court erred in denying him the opportunity to fully

present a justification defense, consistent with the revised “stand your ground” law.

He argues the changes to the code relating to the defenses of justification and self-

defense should apply retroactively, pursuant to the general-saving provision found

in Iowa Code section 4.13(2) (2015). The court should then have instructed the

jury accordingly, including providing the revised definition of “reasonable force” and

instructing the jury that Barber was under no duty to retreat before acting.

We review questions of statutory interpretation for correction of errors at

law. State v. Coleman, 907 N.W.2d 124, 134 (Iowa 2018). We also review

challenges to jury instructions for correction of errors at law. State v. Harrison, 914

N.W.2d 178, 188 (Iowa 2018). On April 13, 2017, the governor signed into law
7

House File 517. See generally 2017 Iowa Acts ch. 69. The act contains numerous

modifications to the Iowa Code relating to the possession of weapons, including

the modification of the definition of reasonable force, codified in section 704.1.2

See id. § 37. Further, the amendment added language to the definition of deadly

force.3 See id. § 38. The act also added section 704.13, which provides immunity

from “criminal or civil liability incurred by the aggressor pursuant to the application

of reasonable force.” See id. § 43. The amendment also no longer required an

individual to retreat,4 thus the “stand your ground” moniker. See id. § 37(3).

Several provisions took effect immediately upon enactment, but the bulk of the

2
Prior to July 1, 2017, Iowa Code section 704.1 (2016) defined reasonable force as:
that force and no more which a reasonable person, in like circumstances,
would judge to be necessary to prevent an injury or loss and can include
deadly force if it is reasonable to believe that such force is necessary to
avoid injury or risk to one’s life or safety or the life or safety of another, or
it is reasonable to believe that such force is necessary to resist a like force
or threat. Reasonable force, including deadly force, may be used even if
an alternative course of action is available if the alternative entails a risk to
life or safety, or the life or safety of a third party, or requires one to abandon
or retreat from one’s dwelling or place of business or employment.
Iowa Code § 704.1 (2016). Effective July 1, 2017, “reasonable force” means:
that force and no more which a reasonable person, in like circumstances,
would judge to be necessary to prevent an injury or loss and can include
deadly force if it is reasonable to believe that such force is necessary to
avoid injury or risk to one’s life or safety or the life or safety of another, or
it is reasonable to believe that such force is necessary to resist a like force
or threat.
Iowa Code § 704.1(1) (2017). Further, “[a] person may be wrong in the estimation of the
danger or the force necessary to repel the danger as long as there is a reasonable basis
for the belief of the person and the person acts reasonably in the response to that belief.”
Id. § 704.1(2).
3
The 2017 legislation amended Section 704.2(2) to include:
“Deadly force” does not include a threat to cause serious injury or death,
by the production, display, or brandishing of a deadly weapon, as long as
the actions of the person are limited to creating an expectation that the
person may use deadly force to defend oneself, another, or as otherwise
authorized by law.
4
“A person who is not engaged in illegal activity has no duty to retreat from any place
where the person is lawfully present before using force as specified in this chapter.” Iowa
Code § 704.1(3).
8

revisions and additions to the Code took effect on July 1, 2017. See id. § 50; see

also Iowa Const. art. III, § 26.

“Statute[s] [are] presumed to be prospective . . . unless expressly made

retrospective.” Iowa Code § 4.5. It is also “well-settled law that substantive

amendments to criminal statutes do not apply retroactively.” Harrison, 914 N.W.2d

at 205. Further,

The reenactment, revision, amendment, or repeal of a statute does
not affect . . . [t]he prior operation of the statute or any prior action
taken under the statute. . . . [or] [a]ny violation of the statute or
penalty, forfeiture, or punishment incurred in respect to the statute,
prior to the amendment or repeal.

Iowa Code § 4.13(1)(a), (c). However, Iowa Code section 4.13(2) provides that

“[i]f the penalty, forfeiture, or punishment for any offense is reduced by a

reenactment, revision, or amendment of a statute, the penalty, forfeiture, or

punishment if not already imposed shall be imposed according to the statute as

amended.” Barber argues that the amendments to the justification defense have

the practical effect of reducing the penalty for his actions, as his actions are no

longer considered crimes and so there is no punishment, and therefore the

amended statutes should have applied.

The shooting in this case took place during the early morning hours of

November 29, 2015, well before both the governor signed the act into law and its

effective date of July 1, 2017. The only language in any of the amendments,

additions, or revisions to the code under House File 517 which expressly made an

amended statute retrospective was the addition of subsection three to Iowa Code

section 724.28 See 2017 Iowa Acts ch. 69, § 32(3). Section 724.28 is not

applicable in this case. Otherwise, the act only provides that certain amendments,
9

none of which are applicable here, will take effect immediately upon enactment.

See id. § 50. Therefore, the amended statutes applicable to this case were not

expressly made retrospective.

Further, the amendments to the code were substantive in nature, redefining,

among other things, “reasonable force” and “deadly force.” Since the justification

defense, as amended, did not exist in the Iowa Code at the time of the shooting,

Barber was not entitled to argue or have the court instruct the jury based upon the

amended code. Harrison, 914 N.W.2d at 205. Barber was still allowed to assert

and argue a justification defense but as defined in the code before the 2017

amendments. The provided jury instructions properly informed the jury of the law

on justification in effect at the time of the shooting. We therefore find no error.

B. Motion for Mistrial

Barber next claims the court improperly failed to either grant a mistrial or

permit voir dire of the jury after deliberations began due to a shooting in Las Vegas.

He claims that because the news of the shooting was unavoidable and despite any

admonitions, the jury and its verdict could have been influenced and prejudiced by

the event, thus depriving him of a fair trial.

The court submitted the case against Barber to the jury on Friday,

September 29, 2017, at 3:34 p.m. The court released the jury for the weekend at

4:30 p.m. to resume deliberations on Monday, October 2. During the evening of

October 1, a gunman opened fire from a high floor overlooking a concert in Las

Vegas. The gunman killed over fifty people and injured hundreds. On October 2,

the court heard from both parties on Barber’s request for a mistrial. Barber focused

on the magnitude and reporting of the shooting and its potential prejudicial effect
10

on the jury. Barber contended the jury was prejudiced because the case against

him and the Las Vegas incident both involved a shooting in a public place where

people were injured and killed. Barber also requested that if the court denied his

motion for mistrial, it should conduct an individual voir dire of the jury members to

determine if the shooting had any effect on them or their ability to be fair and

impartial in this case. The State resisted.

The court found the shooting in Las Vegas was not a local event and the

facts were dissimilar to the facts involved in the present case: a person shooting

random people from a hotel room versus Barber shooting two people he knew and

in the past considered friends. The court determined that because of the

dissimilarity there was not a potential to prejudice the jury and denied the mistrial

motion. Further, the court found that if it questioned the jurors, it could be

interjecting outside information that jury members may not know of or highlighting

information that would do more harm and cause more issues than it might cure.

The court denied the request to voir dire the jury and took no action based on the

incident in Las Vegas, relying on its previous admonitions given to the jury. Barber

reasserted his arguments in his motion for a new trial after the verdict.

We review the district court’s refusal to grant a mistrial for an abuse of

discretion. State v. Gathercole, 877 N.W.2d 421, 427 (Iowa 2016). Further, “we

review the district court’s refusal to poll for an abuse of discretion.” Id. The “mere

refusal by [the] trial court to question the jury at the time requested did not deprive

defendant of a fair trial.” State v. Bigley, 202 N.W.2d 56, 57 (Iowa 1972). In Bigley,

the supreme court adopted a standard that if “material disseminated during the trial

goes beyond the record . . . and raises serious questions of possible prejudice, the
11

court may on its own motion or shall on motion of either party question each juror,

out of the presence of the others, about his exposure to that material.” Id. at 58.

Though “the Bigley standard creates a mandatory duty to poll by using the word

‘shall’ . . . the duty only arises if the publicity raises serious questions of possible

prejudice.” Gathercole, 877 N.W.2d at 427. “The determination whether the

publicity is so prejudicial that further inquiry is necessary is within the trial court’s

discretion.” Id. (quoting Brown v. State, 601 P.2d 221, 232 n. 28 (Alaska 1979)).

The “Bigley standard includes a qualitative component. Factors informing

the qualitative analysis include ‘how closely related the publicity is to the case.’”

Id. at 429. In examining “how closely related to the case the material is. . . . the

court should also examine the nature of the defenses raised in order to weigh the

effects of the publicity on those defenses.” Id. (quoting United States v. Herring,

568 F.2d 1099, 1104 (5th Cir.1978)). The court must also “consider quantitative

factors such as frequency or extent of coverage.” Id.

While the notoriety of the shooting made it possible that jurors could have

heard something about the shooting, qualitatively, as the district court noted, the

case against Barber and the circumstances of the Las Vegas shooting are

dissimilar. In addition to the geographic distance between Las Vegas and Iowa,

Barber claimed he shot Perez and Hurley-Boyd, two people he knew and once

considered friends, in self-defense. In the Las Vegas shooting, a gunman shot

from a hotel room at people attending a nearby concert. There are no reports the

gunman knew any of the people he shot at or that he was targeting anyone in

particular. Further, there are no reports the gunman acted in self-defense.
12

Before the jury was selected, the court admonished the potential jury pool

that they must avoid communicating about the case, including their own

participation, with others, whether speaking in person, over the phone, or through

social media. Further, because of the media coverage already present with the

case, the court admonished the jury to avoid any forms of media during the case

to avoid being unduly influenced based on possible incomplete or distorted

coverage. During each break during the proceedings, the court reminded the jury

about this admonition and often stressed the need to avoid media. When the court

released the jury for the weekend on September 22, the court again reminded the

jurors of the admonishment and cautioned the jurors to avoid media coverage.

After the trial resumed on September 25, the court asked and confirmed that no

juror had been exposed to any media coverage over the weekend. No reported

jury questions or concerns relating to the Las Vegas shooting appear in the record

after the jury reconvened on October 2.

Additionally, in the court’s instructions to the jury, the court admonished the

jury several times that its verdict should only be based on the evidence presented

during trial and the jurors should only rely on matters presented in court, including:

As you consider the evidence, do not be influenced by any
personal sympathy, bias, prejudices or emotions. . . . [Y]ou are to
evaluate the evidence carefully and avoid decisions based on
generalizations, gut feelings, prejudices, sympathies, stereotypes, or
biases.
....
The defendant may not be convicted except upon proof
beyond a reasonable doubt of every element necessary to constitute
the crimes with which he is charged.
....
If you decide a case based on information not presented in
court, you will have denied the parties a fair trial in accordance with
the rules of this state and you will have done an injustice.
13

We presume juries follow the court’s instructions. State v. Hanes, 790

N.W.2d 545, 552 (Iowa 2010). At the time of the request for mistrial, all evidence

had been presented and the case was submitted to the jury. There was no reason

to believe or indication that any juror had violated the court’s admonitions or

instructions. Based upon our review, we find no serious questions of possible

prejudice were raised and we conclude the district court did not abuse its discretion

in declining to poll the jury or grant a mistrial.

C. Prosecutorial Misconduct

Barber also claims the State’s cross-examination of him constituted

prosecutorial misconduct. He contends the State’s question of whether a knife

found near Perez belonged to him was misconduct because the State knew before

asking that the knife did not belong to him and instead belonged to Perez. Barber

argues the State’s false insinuation deprived him of a fair trial.

“Trial courts have broad discretion in ruling on claims of prosecutorial

misconduct and we review such rulings for an abuse of discretion.” State v. Plain,

898 N.W.2d 801, 810–11 (Iowa 2017) (quoting State v. Jacobs, 607 N.W.2d 679,

689 (Iowa 2000)). We will “reverse if the district court’s decision rested on grounds

or reasoning that were clearly untenable or clearly unreasonable. Grounds or

reasons are untenable if they are ‘based on an erroneous application of the law or

not supported by substantial evidence.’” Id. at 811 (quoting State v. Dudley, 856

N.W.2d 668, 674 (Iowa 2014)). Barber “must show both (1) error or misconduct

and (2) prejudice.” Id. at 818.
14

During redirect examination by the defense, defense counsel asked Barber

about a knife found at the scene and if he had ever seen it before. Barber testified

that on the night of the shooting he did not see anyone with a knife, however, he

had seen Perez with a similar knife in the past. On recross-examination by the

State, the State questioned Barber further about the knife, including asking, “Is this

your knife?” Barber answered, “No.” Following Barber’s examination by both

parties, Barber moved for a mistrial, contending the State was aware of the knife’s

owner before asking Barber if the knife was his. The court denied the motion,

finding that though a police report indicated the knife fell out of a victim’s pocket, it

did not say that this victim was Perez or definitively that the knife belonged to

Perez. Further, because the defense raised the knife as an issue, the State was

allowed to ask questions about it on cross-examination. The court did, however,

limit the State from arguing further that the knife was Barber’s but, because no

evidence before the jury indicated exactly to whom the knife belonged, the State

could argue that the owner of the knife was unknown.

On our review of the record, Barber’s argument that the State knew the knife

belonged to Perez is based upon a police report which states the knife fell out of

the victim’s pants. However, the report in question was written by an officer who

did not testify. Further, the officer who authored the report indicated a police

sergeant advised him that a knife found on the street fell out of one of the victim’s

pockets. That police sergeant did testify and did not remember finding said knife

on the night in question or being informed about the presence of the knife or its

location. While a police technician testified he collected the knife from the street

next to Perez’s shoe, another detective testified that because the scene was
15

chaotic and with the number of people in the area who may have gone through

before police could manage the crime scene, there was a potential that evidence

on the street could have been moved or kicked around. Based upon the record,

we find the ownership of the knife is not clear. Once the defense raised the knife

as an issue, the State was entitled to ask questions about it. Once Barber denied

ownership of the knife and there was no other evidence suggesting Barber owned

the knife, the State was not entitled to argue further that the knife was Barber’s

and the court instructed as such. We therefore cannot find the decision by the

court rested on clearly untenable or unreasonable grounds, and we find no abuse

of discretion in the court’s ruling.

D. Jury Question

Barber also claims the court erred in not providing clarification to a question

from the jury after deliberations began. He contends that in response to a jury

question about malice aforethought, the court should have given a definitive

response rather than merely instructing the jury to reread the instructions.

A “district court has a ‘duty to instruct fully and fairly’ on the law applicable

to ‘all issues raised by the evidence.’” State v. Schuler, 774 N.W.2d 294, 297 (Iowa

2009) (quoting State v. Stallings, 541 N.W.2d 855, 857 (Iowa 1995)). When the

jury asks a question or for clarification during deliberations, “the district court has

the discretion to decide whether or not to provide an answer.” State v. Stokes, No.

14-1000, 2016 WL 718969, at *5 (Iowa Ct. App. Feb. 24, 2016); see Iowa R. Civ.

P. 1.925; see also Iowa R. Civ. P. 2.19(5)(g). “A discretionary ruling is

presumptively correct, and on appeal will be overturned only where an abuse of

discretion has been demonstrated. An abuse is found only where the discretion is
16

exercised on grounds or for reasons clearly unreasonable.” State v. McCall, 754

N.W.2d 868, 871 (Iowa Ct. App. 2008) (quoting State v. Watkins, 463 N.W.2d 15,

18 (Iowa 1990)).

During deliberations, the jury submitted the question, “Does the use of a

dangerous weapon automatically equal malice aforethought?” Barber argued the

court should respond with a definitive no. However, the court declined to do so

and instead instructed the jury that “they have all of the applicable law in the

instructions and you should reread the instructions.” “Malice aforethought is

inferred simply from the use of the dangerous weapon.” State v. Green, 896

N.W.2d 770, 781 (Iowa 2017). The disputed instruction accurately states the law

and is not unclear. Therefore, we conclude the district court did not abuse its

discretion when answering the jury’s question with the response to reread the

instructions.

E. Sufficiency of the Evidence

Barber finally contends the jury verdicts were not supported by substantial

evidence. He focuses his claims on the intent elements of both offenses, arguing

the State failed to establish the requisite intent or that he acted without justification

for each offense.

“Sufficiency of evidence claims are reviewed for correction of errors at law,

and we will uphold a verdict if substantial evidence supports it.” State v. Ramirez,

895 N.W.2d 884, 890 (Iowa 2017). We view the evidence “in the light most

favorable to the State, including all reasonable inferences that may be fairly drawn

from the evidence.” State v. Ortiz, 905 N.W.2d 174, 180 (Iowa 2017) (quoting

State v. Huser, 894 N.W.2d 472, 490 (Iowa 2017)). “Evidence is considered
17

substantial if, when viewed in the light most favorable to the State, it can convince

a rational jury that the defendant is guilty beyond a reasonable doubt.” Ramirez,

895 N.W.2d at 890 (quoting State v. Reed, 875 N.W.2d 693, 704–05 (Iowa 2016)).

Such “evidence must do more than raise ‘suspicion, speculation, or conjecture’

regarding defendant’s guilt.” State v. Randle, 555 N.W.2d 666, 671 (Iowa 1996)

(quoting State v. Barnes, 204 N.W.2d 827, 829 (Iowa 1972)). “We consider all the

record evidence, not just the evidence that supports the verdict.” State v. Biddle,

652 N.W.2d 191, 197–98 (Iowa 2002).

1. Perez—Malice Aforethought

To convict on second-degree murder, the instructions required the jury to

find: (1) Barber shot Perez; (2) Perez died as a result of being shot; (3) Barber

acted with malice aforethought; and (4) Barber acted without justification. Barber

argues the State failed to prove the third and fourth elements. The court instructed

the jury:

“Malice” is a state of mind which leads one to intentionally do a
wrongful act to the injury of another or in disregard of the rights of
another out of actual hatred, or with an evil or unlawful purpose. It
may be established by evidence of actual hatred, or by proof of a
deliberate or fixed intent to do injury. It may be found from the acts
and conduct of the defendant, and the means used in doing the
wrongful and injurious act. Malice requires only such deliberation
that would make a person appreciate and understand the nature of
the act and its consequences, as distinguished from an act done in
the heat of passion.

The court also instructed “‘[m]alice aforethought’ is a fixed purpose or design to do

some physical harm to another which exists before the act is committed. It does

not have to exist for any particular length of time.” Further, “malice aforethought

maybe inferred from [Barber]’s use of a dangerous weapon.” The jury was
18

instructed that “[m]urder in the second degree does not require a specific intent to

kill another person.”

Here, the evidence showed, and Barber does not deny, that he shot Perez

with a gun. The use of a gun supports the inference that Barber intended to cause

Perez’s death. “[I]f the jury rejected [Barber]’s [justification] argument, it could, but

was not required to, infer [Barber] acted with malice aforethought from his use of

a dangerous weapon.” Green, 896 N.W.2d at 781. Taken in the light most

favorable to the State, we find the record contained substantial evidence for a

reasonable jury to conclude Barber acted with malice aforethought beyond a

reasonable doubt.

2. Hurley-Boyd—Specific Intent

To convict on assault with intent to inflict serious injury, the instructions

required the jury to find: (1) Barber did an act intended to either (a) cause pain or

injury, (b) result in insulting or offensive physical contact, or (c) place Hurley-Boyd

in fear of immediate physical contact which would be painful, injurious, insulting,

or offensive to Hurley-Boyd; (2) Barber had the apparent ability to do the act; (3)

the act was done with the specific intent to cause a serious injury; and (4) Barber

acted without justification. Barber challenges the third and fourth elements of this

offense.

The court instructed the jury that “‘[s]pecific 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.” The court also instructed the jury that specific intent is “seldom

capable of direct proof” so the jury “should consider the facts and circumstances
19

surrounding the act to determine [Barber]’s intent.” Further, the jury could, “but

[was] not required to, conclude a person intends the natural result of his acts.”

The evidence shows, and Barber admitted, that after firing a warning shot

he took the gun, levelled it at Perez, and shot him. He then claims Hurley-Boyd

swung at him so he shot at Hurley-Boyd. The fact that Barber used a gun and shot

at Hurley-Boyd and, in fact, hit him supports an inference that he had the specific

intent to seriously injure Hurley-Boyd. Based on all of the facts and circumstances

contained in the record, we conclude the jury could reasonably infer that Barber

intended to seriously injure Hurley-Boyd.

3. Justification

As to both shootings, Barber contends he acted with justification, claiming

the group of individuals with Perez and Hurley-Boyd were aggressively coming at

him, after he both retreated into the club to wait for his ride and fired a warning

shot once outside.

The court instructed the jury that “a person may use reasonable force to

prevent injury to a person, including [injury to themselves].” The instructions

defined reasonable force as “only the amount of force a reasonable person would

find necessary to use under the circumstances to prevent death or injury.” The

jury was also instructed “[a] person can use deadly force against another if it is

reasonable to believe that such force is necessary to avoid injury or risk to one’s

life or safety or the life or safety of another, or it is reasonable to believe that such

force is necessary to resist a like force or threat.” Further, “[a] person is justified

in using reasonable force if he reasonably believes the force is necessary to

defend himself from any actual or imminent use of unlawful force.”
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The court also instructed the jury that it should find Barber was unjustified

if the State proved: (1) Barber started or continued the incident which resulted in

injury or death; (2) an alternative course of action was available to Barber; (3)

Barber did not believe he was in imminent danger of death or injury and the use of

force was not necessary to save him; (4) Barber did not have reasonable grounds

for the belief; or (5) the force used by the defendant was unreasonable.

The record contains conflicting evidence on the issue of justification,

specifically the location of Barber, Hurley-Boyd, and Perez in relation to one

another, in addition to the presence of other people ready to fight or not. Further,

there was conflicting evidence as to what options, if any, Barber had available to

him rather than shooting Hurley-Boyd and Perez. There was also conflicting

evidence on whether Perez had a leg injury that prevented him from running or

charging at someone, as Barber contended. Because there was no video of the

actual shooting and what video is available provides only partial information as to

the series of events that night, eyewitness evidence was the crux of the State’s

case against Barber. As the court instructed, the jury members were the “judges

of . . . witnesses’ credibility and the weight to be given their testimony.” “The very

function of the jury is to sort out the evidence presented and place credibility where

it belongs.” State v. Blair, 347 N.W.2d 416, 420 (Iowa 1984). Further, “the jury

was free to reject certain evidence, and credit other evidence.” State v. Hickman,

623 N.W.2d 847, 849 (Iowa 2001). Viewing the evidence in the light most favorable

to the State and drawing all reasonable inferences in favor of the verdict, there was

substantial evidence that Barber had alternative courses available to him that night

other than shooting Perez and Hurley-Boyd and, therefore, Barber acted without
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justification. Consequently, we find the verdicts are supported by substantial

evidence.

III. Conclusion

The 2017 amendments to the justification defense at issue in this case were

prospective, not retrospective, as the amendments were not expressly made

retrospective and were substantive in nature. As such, Barber was not entitled to

argue or have the court instruct the jury based upon the 2017 amendments to the

Iowa Code. Barber was still allowed to assert and argue a justification defense as

defined by statute before the 2017 amendments, and the jury instructions properly

informed the jury of the law on justification in effect at the time of the shooting. We

find the district court did not abuse its discretion in refusing to poll the jury or grant

a mistrial based upon the Las Vegas shooting. The district court also did not abuse

its discretion when responding to the jury’s question with directions to reread the

instructions. We find no prosecutorial misconduct. Finally, we find the verdicts are

supported by substantial evidence.

AFFIRMED.