State of Iowa v. Diavantae Stepphon Davis

IN THE COURT OF APPEALS OF IOWA

No. 21-1100
Filed October 5, 2022

STATE OF IOWA,
Plaintiff-Appellee,

vs.

DIAVANTAE STEPPHON DAVIS,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Des Moines County, Wyatt Peterson,

Judge.

Diavantae Davis appeals his convictions for murder in the first degree,

intimidation with a dangerous weapon with intent to injure or provoke, and going

armed with intent. AFFIRMED.

S.P. DeVolder of The DeVolder Law Firm, P.L.L.C., Norwalk, and William

L. Kutmus and Trever Hook of Kutmus, Pennington & Hook, P.C., West Des

Moines, for appellant.

Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant Attorney

General, for appellee.

Heard by Bower, C.J., Tabor, J., and Gamble, S.J.*

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

(2022).
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GAMBLE, Senior Judge.

Diavantae Davis appeals his convictions for murder in the first degree,

intimidation with a dangerous weapon with intent to injure or provoke, and going

armed with intent. He argues the district court erred in instructing the jury on his

duties with respect to his justification defense and the evidence is insufficient to

support his conviction for murder in the first degree. We reject his arguments and

affirm.

I. Background Facts and Proceedings

On the evening of September 7, 2019 and into the early morning hours of

September 8, a group of housemates hosted a party at their residence in

Burlington, Iowa. Alexandria, one of the party’s hosts and a resident of the home,

estimated about forty-five people were at the party, including Reynaldo Villarreal.

Most of the partygoers were in the yard of the home. At a certain point, Christian

appeared at the party. Christian was involved in an issue during a previous party

at the home earlier that summer. Alexandria met Christian outside. She told him

he was not welcome at the party and he needed to leave the premises. Christian

then left the party while expressing his disagreement.

Christian soon returned to the party accompanied by Timothy. Alexandria

met the pair outside to tell them to leave the party. She thought Timothy was being

aggressive in refusing to leave. So she asked Villarreal for assistance in

convincing the pair to leave. Villarreal also told the pair that Christian was not

allowed at the party and they needed to leave. Christian and Timothy insisted on

staying and argued with Villarreal. A crowd of partygoers began to form around

them on the landing in front of the house as the argument became more heated.
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Davis and two of his friends arrived at the party during this argument.

Davis’s group joined the crowd, standing behind Christian and Timothy. Davis

inserted himself into the already heated situation, siding with Christian and

Timothy. Christian and Timothy both testified Villarreal showed them he had a

handgun in his belt early in the argument and he later held the handgun at his side

without pointing it at anyone. Arturo, another partygoer, testified Villarreal pulled

out a handgun during the argument, loaded a round in the chamber, and pointed

it straight down at his side. Other partygoers testified they never saw Villarreal

with a firearm—or even knew he had one—during the party. Alexandria testified

Davis was the only one to mention having a firearm during the argument. Arturo

testified Davis made threats during the argument about his group being “killers.”

Another witness similarly testified Davis said “they ain’t no real killers; I’m a real

killer.” Eventually, everyone in Christian’s group—including Davis—started to

leave. Davis slipped down a hill in the yard next to the front steps. As Villarreal

stood on the landing and continued to tell them to leave, Davis fired his handgun

six times. Villarreal fell forward down the hill.

Burlington police responded to the home around 1:40 a.m. on September 8.

Officers found a group of people in front of the home gathered around Villarreal.

Villarreal was on the ground and unresponsive with an apparent gunshot wound.

He was transported to the hospital and pronounced dead at approximately

2:13 a.m. Officers eventually found a handgun with a round in the chamber in the

grass next to the spot where they found Villarreal’s body. After checking serial

numbers, officers determined the handgun belonged to Luis, one of the residents

of the home where the party occurred. Luis testified he did not know how Villarreal
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obtained his handgun that night. An autopsy later confirmed Villarreal sustained a

gunshot wound to his chest. Detectives spent a substantial amount of time over

the next couple of days searching the wooded area near the crime scene using a

metal detector in an attempt to find the firearm used in the homicide. The weapon

used to shoot Villarreal was never recovered.

After speaking to witnesses and reviewing video from the home’s security

system, officers identified Davis as the shooter. On September 9, Davis voluntarily

went to the Burlington police department for an interview. During the interview,

Davis acknowledged walking up to the party. But he claimed he left the party when

he saw a group of people arguing, including one person waving a handgun. He

claimed he was down the street and walking away from the home when he heard

gunshots. He also denied owning or possessing a firearm. At the conclusion of

the interview, officers arrested Davis for Villarreal’s killing.

Davis proceeded to a jury trial on June 15 to 25, 2021. The State’s evidence

included testimony from several witnesses at the party and members of law

enforcement. Davis testified in his defense. During trial, Davis admitted owning

the handgun he used to shoot Villarreal and claimed he was justified in doing so.

According to Davis’s testimony, he and his friends tried going to the party but

Villarreal and others at the party stopped them in the front yard. Villarreal’s group

told Davis’s group they were not welcome. Villarreal specifically said “you n-----s[1]

need to leave” while holding a handgun at his side. After some arguing, Davis and

his group started to leave. Davis slipped and fell. As he got up, Davis heard

1 Davis and his two friends who were with him that night are African American.
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Villarreal cock his handgun. Davis reached in his pocket and grabbed his gun.

When Davis turned to look at him, Villarreal said “you guys need to leave or I’m

going to use it.” Davis was backing up to the street. Villarreal moved his weapon

back and forth like he was turning off the safety. Villarreal then pointed his gun in

the direction of Davis and his group. Fearing Villarreal was about to fire upon his

group, Davis fired multiple rounds, hitting Villarreal.

The jury rejected Davis’s justification claim and found him guilty of murder

in the first degree, intimidation with a dangerous weapon with intent to injure or

provoke, going armed with intent, and possession of a firearm by a felon. The

district court sentenced him to life in prison for murder, ten years in prison for

intimidation, five years in prison for going armed, and five years in prison for

possession of a firearm, with the latter three sentences running consecutively to

each other and concurrently with the life-in-prison sentence. Davis appeals his

convictions for murder, intimidation, and going armed.2

II. Standard of Review

We review “challenges to jury instructions for the correction of legal error.

In conducting our review, we review the instructions ‘as a whole to determine their

accuracy.’” State v. Mathis, 971 N.W.2d 514, 519 (Iowa 2022) (citations omitted).

“We review the trial court’s instructions ‘to determine whether they correctly state

the law and are supported by substantial evidence.’” State v. Walker, 600 N.W.2d

606, 608 (Iowa 1999) (quoting State v. Thompson, 570 N.W.2d 765, 767 (Iowa

1997)).

2 Davis does not appeal his conviction for being a felon in possession of a firearm.
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We review claims a verdict is not supported by substantial evidence for

correction of errors at law. Mathis, 971 N.W.2d at 516. “Substantial evidence is

evidence sufficient to convince a rational trier of fact the defendant is guilty beyond

a reasonable doubt.” Id. at 516–17. “In determining whether the jury’s verdict is

supported by substantial evidence, 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.’” Id. at 517

(quoting State v. Tipton, 897 N.W.2d 653, 692 (Iowa 2017)).

III. Analysis

A. Jury instruction—Justification

1. Substantial Evidence

“Justification is a statutory defense that permits a defendant to use

reasonable force to defend himself or herself.” State v. Lorenzo Baltazar, 935

N.W.2d 862, 869 (Iowa 2019). “A person is justified in the use of reasonable force

when the person reasonably believes that such force is necessary to defend

oneself or another from any actual or imminent use of unlawful force.” Iowa Code

§ 704.3 (2019). “Reasonable force” is

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.

Id. § 704.1(1). The marshaling instructions for murder, intimidation, and going

armed all required the State to prove by evidence beyond a reasonable doubt that
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Davis acted without justification in order to find him guilty of each respective

charge.

“As with any affirmative defense, the district court must instruct the jury on

justification if substantial evidence supports the theory.” State v. Kuhse, 937

N.W.2d 622, 628 (Iowa 2020). “The defendant bears the initial burden of producing

sufficient evidence to support the instruction.” Id. “Once that threshold is met, the

burden shifts to the State to prove lack of justification beyond a reasonable doubt.”

Id. “Iowa law requires a court give a requested instruction as long as the instruction

is a correct statement of law, is applicable to the case, and is not otherwise

embodied elsewhere in the instructions.” State v. Kraai, 969 N.W.2d 487, 492

(Iowa 2022) (citation omitted).

In response to Davis’s claim of justification, the district court issued a series

of instructions on justification. As relevant here, instruction no. 28A states in its

entirety:

After using deadly force, the defendant had the following duties:
1. To not intentionally destroy, alter, conceal, or disguise
physical evidence relating to the defendant’s use of deadly
force;
2. To not intentionally intimidate a witness into refusing to
cooperate with an investigation of the defendant’s use of
deadly force; and
3. To not intentionally induce another person to alter testimony
about the defendant’s use of deadly force.
You may consider whether the defendant complied with these duties
when deciding whether deadly force was justified.

Davis objected to instruction no. 28A, specifically claiming it was not

supported by substantial evidence.3 See State v. Schuler, 774 N.W.2d 294, 297

3 Our supreme court found an instruction based on Iowa Code section 704.2B(1)
impermissibly violated the defendant’s right to remain silent under the Fifth
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(Iowa 2009) (stating jury instructions must be “correct statements of the law

and . . . supported by substantial evidence” (quoting State v. Liggins, 557 N.W.2d

263, 267 (Iowa 1996))).

Instruction no. 28A reflects Iowa Code section 704.2B(2), which states:

The person using deadly force shall not intentionally destroy, alter,
conceal, or disguise physical evidence relating to the person’s use
of deadly force, and the person shall not intentionally intimidate
witnesses into refusing to cooperate with any investigation relating
to the use of such deadly force or induce another person to alter
testimony about the use of such deadly force.

Because section 704.2B and instruction no. 28A are substantively identical, the

instruction is a correct statement of law. See Kraai, 969 N.W.2d at 491.

However, Davis maintains the court erred by giving instruction no. 28A

because there is no evidence he violated any of the enumerated duties. The State

concedes “there was little evidence” Davis either intimidated a witness into refusing

to cooperate or induced another person to alter their testimony. Thus, the State

apparently concedes there was no evidence to support finding Davis violated two

of the three duties enumerated in instruction no. 28A. However, the State argues

Davis’s statements during his interview at the police station violated his duty not to

intentionally conceal physical evidence. And the State contends the district court

Amendment to the United States Constitution. State v. Gibbs, 941 N.W.2d 888,
894–901 (Iowa 2020). To the extent Davis claims instruction no. 28A also violates
his Fifth Amendment rights, he did not raise this argument below so it is not
preserved for our review. See State v. Zacarias, 958 N.W.2d 573, 587 (Iowa 2021)
(refusing to consider the defendant’s constitutional claim after the defendant failed
to raise the claim in district court).
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is required to instruct on the duties of section 704.2B(2) in every case where the

defense of justification involves the use of deadly force.4

In 2017 the Iowa legislature amended the justification statute to include new

stand-your-ground provisions. 4 Robert R. Rigg, Iowa Practice Series: Criminal

Law § 2:21 (Oct. 2021 update). The amendments expanded the defense of

justification by deleting existing language regarding alternative course of action

and adding provisions “for the erroneous estimation of the danger presented and

force necessary as long as there is a ‘reasonable basis for the belief’ and the

person acts ‘reasonably in the response’ to a perceived threat.” Id. (quoting Iowa

Code § 704.1). “Significantly, the amendment provides a person does not have a

duty to retreat as long as a person ‘is not engaged in illegal activity’ and is in a

place where they were ‘lawfully present.’” Id. (quoting Iowa Code § 704.1). In this

context, the legislature added new section 704.2B stating the duties of a person

using deadly force. See 2017 Iowa Acts ch. 69, § 40. Section 704.2B(2) provides:

The person using deadly force shall not intentionally destroy,
alter, conceal, or disguise physical evidence relating to the person’s
use of deadly force, and the person shall not intentionally intimidate

4 The State relies on commentary to the Iowa Criminal Jury Instructions. See Iowa
State Bar Ass’n, Iowa Crim. Jury Instruction 400.1 cmt. (2021) (stating if deadly
force was used, uniform instruction “400.7 (Deadly Force—Duties) must then be
used.”). Unlike other instructions, the comment to uniform instruction 400.7 does
not require the court to “[u]se only that language that is supported by the evidence.”
Compare Iowa State Bar Ass’n, Iowa Crim. Jury Instruction 400.6 cmt. (Deadly
Force—Presumptions), with Iowa State Bar Ass’n, Iowa Crim. Jury Instruction
400.7 cmt. (Deadly Force—Duties). While we are not bound by them, “we are slow
to disapprove of the uniform jury instructions.” State v. Booth-Harris, 942 N.W.2d
562, 580 (Iowa 2020) (quoting State v. Ambrose, 861 N.W.2d 550, 559 (Iowa
2015)). Instruction no. 28A closely tracks section 704.2B(2) and is identical to
uniform instruction 400.7. It is a correct statement of the law. However, as
guidance to the bench and bar, we express our disagreement with the commentary
suggesting 400.7 must be used in every case involving deadly force regardless of
whether it is supported by the evidence.
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witnesses into refusing to cooperate with any investigation relating
to the use of such deadly force or induce another person to alter
testimony about the use of such deadly force.

“The law on giving of jury instructions in Iowa is well developed.” Meck v.

Iowa Power & Light Co., 469 N.W.2d 274, 276 (Iowa Ct. App. 1991). “Jury

instructions are designed to explain the applicable law to the jurors so the law may

be applied to the facts proven at trial. Submission of issues that have no support

in the evidence to the jury is error.” Id. (internal citation omitted). “Requested

instructions that are not related to the factual issues to be decided by the jury

should not be submitted even though they may set out a correct statement of the

law.” See Vachon v. Broadlawns Med. Found., 490 N.W.2d 820, 822 (Iowa 1992).

“Evidence is substantial enough to support a requested instruction when a

reasonable mind would accept it as adequate to reach a conclusion.” Bride v.

Heckart, 556 N.W.2d 449, 452 (Iowa 1996).

“In construing statutes, we assume the legislature is familiar with the

existing state of the law when it enacts new legislation.” State v. Adams, 810

N.W.2d 365, 370 (Iowa 2021). “Further, ‘[a] statute will not be presumed to

overturn long-established legal principles, unless that intention is clearly

expressed or the implication to that effect is inescapable.’” Id. (alteration in

original) (citation omitted). In its codification of the duties of a person using deadly

force in section 704.2B(2), we see no clear expression or implication the legislature

intended that courts must instruct juries on these duties if they are not supported

by substantial evidence. Consistent with long-established principles, we conclude

the legislature intended the violation of a duty imposed by this statute must be
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supported by substantial evidence before it can be properly submitted to a jury

considering the defense of justification.

The State produced no evidence that Davis intimidated a witness into

refusing to cooperate with an investigation of his use of deadly force or that he

intentionally induced another person to alter testimony about his use of deadly

force. Accordingly, we find there is not substantial evidence to support paragraphs

2 and 3 of Instruction 28A.

Further, while there is evidence Davis lied during his police interview about

his use of a firearm and the police never located the gun, that evidence alone is

not sufficient to support a finding that Davis intentionally acted to destroy, alter,

conceal, or disguise physical evidence relating to his use of deadly force as

required by paragraph 1 of instruction no. 28A. See Bride, 556 N.W.2d at 452.

There is no evidence that Davis actively hid or concealed the weapon. Cf. State

v. Thornton, 498 N.W.2d 670, 673–74 (Iowa 1993) (finding substantial evidence

where the defendant “left the scene immediately after the shooting” and “[w]ent

home and hid his gun in the basement,” concluding a “jury could rationally believe

these were not the actions of someone who honestly believed he acted in self-

defense”); State v. Jonas, No. 15-1560, 2017 WL 706204, at *5 (Iowa Ct. App.

Feb. 22, 2017) (noting the defendant’s actions were “inconsistent with someone

who was acting in self-defense” because he “avoided the police . . . by lying to

them throughout the initial interviews,” and “disposed of his weapon by throwing it

over a bridge into the river,”); see also State v. Heckethorn, No. 20-0243, 2021 WL

3392802, at *3 (Iowa Ct. App. Aug. 4, 2021) (applying the stand-your-ground

amendments and finding, “After the shooting, Heckethorn fled the scene,
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concealed the AR-15 in a closet at his mother’s house, and told the police he was

not involved in the shooting. Heckethorn’s behavior after the incident

demonstrates his consciousness of guilt”). Again, “[t]he legislature is presumed to

know the state of the law, including case law, at the time it enacts a statute.” State

v. Jones, 298 N.W.2d 296, 298 (Iowa 1980). Based upon our case law, the

codification of a defendant’s duty to not intentionally destroy, alter, conceal, or

disguise physical evidence relating to his use of deadly force in section 704.2B(2)

requires an affirmative act beyond a false denial of participation in the crime during

a police interview.

The State produced no evidence that Davis did anything to hide or get rid

of the gun. The police did not ask Davis if he hid the gun when he initially denied

involvement in the shooting, and the prosecutor did not cross-examine Davis about

hiding or disposing of the weapon at trial. And the State did not introduce any

other evidence indicating Davis intentionally destroyed, altered, concealed, or

disguised the firearm used in the homicide. Therefore, we conclude instruction no.

28A was not supported by substantial evidence and the district court erred in

submitting it. See Meck, 469 N.W.2d at 276.

2. Harmless Error

The State argues any error in instruction no. 28A was harmless. In Kraai,

969 N.W.2d at 496–97, our supreme court stated the harmless error standard:

“Error in giving or refusing to give a jury instruction does not warrant
reversal unless it results in prejudice to the complaining party.”
When a court erroneously gives or refuses a jury instruction, “we
presume prejudice and reverse unless the record affirmatively
establishes there was no prejudice.” “When the error is not of
constitutional magnitude, the test of prejudice is whether it
sufficiently appears that the rights of the complaining party have
13

been injuriously affected or that the party has suffered a miscarriage
of justice.” The presumption of prejudice is overcome when the jury
received “strong evidence” of a defendant’s guilt.

(Internal citations omitted.)

Instruction no. 28A did not prejudice Davis. While the instruction

enumerated the duties of a person using deadly force, it provided, “You may

consider whether the defendant complied with these duties when deciding whether

deadly force was justified.” The district court allowed the parties to argue the

reasonable inferences to be drawn from this instruction. No inference adverse to

Davis can be reasonably drawn from the lack of evidence that he breached any of

the enumerated duties of instruction no. 28A. To the contrary, compliance with

these duties implies that deadly force was justified.

But more importantly, neither party raised any of the three enumerated

duties during their arguments and Davis’s compliance with these duties was not

the fighting issue at trial. The issue was whether, under the circumstances existing

at the time of the incident, the State proved Davis did not have a reasonable belief

deadly force was necessary to defend himself from imminent danger of being shot

by Villarreal. See Lorenzo Baltazar, 935 N.W.2d at 869. On this point, the State

produced strong evidence Davis was not justified. Davis injected himself into a

heated situation between Timothy, Christian, and Villarreal. During the

confrontation, Davis announced he was armed and he was a “killer.” Arturo

testified Villarreal cocked his gun and pointed it down. Villarreal continued to tell

Davis and his group to leave. Davis slipped on the hill, got up, pulled his gun,

turned around, raised his weapon, lowered it, raised it again, and shot Villarreal.

While Davis testified that after he slipped, he heard Villarreal cock his gun and that
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Villarreal pointed it in his direction as he was leaving, the witnesses did not

corroborate Davis’s version of the events. And the surveillance video

demonstrated that Villarreal was not pointing a gun at Davis’s group when Davis

shot him. See Gibbs, 941 N.W.2d at 900 (“This was the rare case where the

murder was captured on video.”).

We conclude strong evidence established Davis did not have a reasonable

belief deadly force was necessary to defend himself from imminent danger of being

shot by Villarreal. And since this was the fighting issue, we are not convinced the

jury was distracted by the duties of a person using deadly force listed in instruction

no. 28A. See Rivera v. Woodward Res. Ctr., 865 N.W.2d 887, 904 (Iowa 2015)

(finding new trial was not warranted where erroneous instruction did not mislead

or confuse the jury in light of the totality of the instructions). Davis was not

injuriously affected by instruction no. 28A. It did not result in a miscarriage of

justice. See Kraai, 969 N.W.2d at 496-97.

B. Substantial Evidence of Premeditation and Specific Intent

The marshaling instruction for murder in the first degree required the jury to

find Davis “acted willfully, deliberately, premeditatedly and with specific intent to

kill” Villarreal. See Iowa Code § 707.2(1)(a) (setting forth the elements of murder

in the first degree). Davis argues the record does not contain substantial evidence

he acted with premeditation and a specific intent to kill Villarreal.

“To premeditate is to think or ponder upon a matter before action.” State v.

Talbbet, 590 N.W.2d 732, 734 (Iowa Ct. App. 1999). “Our first-degree murder

cases have long held that the use of a deadly weapon supports an inference of

malice, and when accompanied by an opportunity to deliberate, also supports an
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inference of deliberation and premeditation.” State v. Reeves, 636 N.W.2d 22, 25

(Iowa 2001); see also State v. Green, 896 N.W.2d 770, 780 (Iowa 2017) (“[A]

rational juror could infer that one who uses a dangerous weapon intends to cause

physical harm, and even to kill.”); State v. Frazer, 267 N.W.2d 267 N.W.2d 34, 39

(Iowa 1978) (“The use of a deadly weapon accompanied by an opportunity to

deliberate, even for a short time, is evidence of malice, deliberation, and

premeditation.”).

“[T]he term ‘specific intent’ is used to ‘designate a special mental element

which is required above and beyond any mental state required with respect to the

actus reus of the crime.” State v. Buchanan, 549 N.W.2d 291, 294 (Iowa 1996)

(citation omitted). “Specific intent not only requires the defendant to be aware of

doing an act, but doing it with a specific purpose in mind.” State v. Guerrero

Cordero, 861 N.W.2d 253, 259 (Iowa 2015), overruled on other grounds by Alcala

v. Marriott Int’l, Inc., 880 N.W.2d 699 (Iowa 2016). “When a person intentionally

uses a deadly weapon in killing a victim, the jury may infer that he had formed the

specific intent to kill.” State v. Wilkins, 346 N.W.2d 16, 20 (Iowa 1984). “[A]n actor

will ordinarily be viewed as intending the natural and probable consequences that

usually follow from his or her voluntary act. State v. Taylor, 689 N.W.2d 116, 132

(Iowa 2004).

Much of the same evidence that convinces us Davis suffered no prejudice

from the erroneous instruction also provides substantial evidence to support his

conviction for first-degree murder. Davis relies on his testimony that he was

justified in shooting Villarreal. A major part of his justification defense was his claim

Villarreal cocked his gun and pointed it at Davis’s group as they tried to leave.
16

Indeed, police found a handgun with a round in the chamber in the grass next to

Villarreal’s body after the shooting. While the witnesses varied in whether they

saw Villarreal display a firearm during the argument, no witness other than Davis

testified Villarreal pointed a firearm at anyone before the shooting.

The security video also conflicts with critical parts of Davis’s testimony. The

security video shows Davis and Villarreal in a heated argument with each other as

part of their respective groups. The two groups continue arguing as Davis and his

group walk away from the home. Davis slips in the grass while walking away.

When Davis reaches the street, he draws his handgun. Davis is the only person

shown in the video clearly holding a firearm, though we recognize it is possible

Villarreal may have held a firearm in a way not caught on video. Davis raises his

weapon toward Villarreal’s group, lowers his weapon, raises his weapon again,

and fires six times. Villarreal then falls forward and tumbles toward the street.

Despite Davis’s claim Villarreal pointed a handgun in his direction, the video does

not show Villarreal holding—much less pointing—a firearm at any time.

Davis’s testimony conflicted with the other evidence in the record, including

his own statements during his interview with police and the testimony of Villarreal’s

friend Arturo. Thus, “the jury was not required to accept all of defendant’s

testimony.” State v. Hall, 214 N.W.2d 205, 210 (Iowa 1974). Putting the evidence

together and viewing it in the light most favorable to the State, the jury could

reasonably conclude Davis took part in a heated argument with Villarreal’s group,

threatened to kill someone with his handgun, walked away while continuing to

argue, raised his handgun, and hesitated before opening fire on Villarreal and his

group. The witness testimony and security video provide substantial evidence to
17

support finding Davis acted with premeditation and specific intent to kill. See

Mathis, 971 N.W.2d at 516–17. These elements of murder in the first degree are

supported by substantial evidence. Id.

IV. Conclusion

The jury instruction about the duties Davis was required to perform in order

to claim a justification defense is a correct statement of law. While it was not

supported by substantial evidence, the error was harmless. The witness testimony

and security video provide substantial evidence to support finding Davis acted with

premeditation and a specific intent to kill. Therefore, we affirm his convictions.

AFFIRMED.