author: McGIVERIN, Chief Justice.

text:
    Nikki HERBST, Appellant, v. STATE of Iowa, Appellee.
    No. 98-1985.
    Supreme Court of Iowa.
    Sept. 7, 2000.

      Martin A. Diaz of Martin Diaz Law Firm, Iowa City, for appellant.
    Thomas J. Miller, Attorney General, and Joanne Moeller, Assistant Attorney General, for appellee.
   McGIVERIN, Chief Justice.

In this slip and fall case, the narrow question we must consider is whether the district court properly instructed the jury concerning the specifications of negligence as alleged by plaintiff in her action against defendant, the State of Iowa, for personal injuries she sustained while descending from the stage in a University of Iowa music rehearsal hall. After the jury returned a.verdict in favor of defendant and the district court entered judgment thereon, plaintiff moved for a new trial, asserting the district court erred in refusing to instruct the jury concerning certain specifications of negligence. The district court overruled plaintiffs motion. Our court of appeals affirmed. We granted plaintiffs application for further review.

Upon our review, we conclude that the district court erred when it instructed the jury concerning the specifications of negligence alleged by plaintiff. We vacate the decision of the court of appeals, reverse the judgment of the district court, and remand for a new trial.

I. Background facts and proceedings.

After complying with the requirements of Iowa Code chapter 669 (1995) (fifing claim with the State Appeal Board under Iowa Tort Claims Act), plaintiff Nikki Herbst filed a petition in district court against defendant, the State of Iowa. In her petition, Herbst alleged that, she was injured on June 17, 1995 when she fell while descending from the stage in .a music rehearsal hall on the campus of the University of Iowa and that the University’s negligence in connection with access to the stage was the cause of her injuries. The case was tried to a jury.

Evidence presented during trial showed' that the stage in the rehearsal hall is approximately thirty inches high. As is common with most stages, there are no steps directly in front of the stage. There is a set of permanent stairs located in the upper left-hand corner as a person would look at the stage. To get to those permanent stairs, one would have to walk down a hallway along the left side of the stage.

Herbst testified that she went to the University of Iowa Opera Rehearsal Hall at approximately 9:45 a.m. on Saturday June 17 to attend a band rehearsal for the Iowa City community band. Herbst had never been to the opera rehearsal hall before this' date. Herbst explained that upon entering the rehearsal hall, she saw a set of black wooden steps leading up to the left-hand side of the stage and what looked like a bench on the right-hand side of the stage. Herbst walked to the left side of the stage, looking for a set of steps, but she only saw large canvas backdrops stacked on wooden casters. Some people were getting on and off the stage by using the black wooden steps or the bench, while others used neither the steps nor the bench. Herbst walked up the black steps to' reach her seat on the stage.

After an hour or so of rehearsal, the band took a break. Band members again used various means by which to leave the stage. Herbst decided to leave the stage to use the restroom. Herbst saw other people leaving the stage at the center point of the stage, which was the most direct route to exit the stage. Instead of exiting the stage the same way she got up onto the stage, Herbst decided to exit the stage from its center point. As she walked to the front edge of the stage, Herbst looked down and saw what appeared to be two natural wood colored steps resting against the stage. Herbst believed the steps to be approximately seven inches high and approximately twenty-seven inches or one and a half to two feet wide. Other band members had used this means of exiting the stage without problems before Herbst attempted to do so. When Herbst stepped down onto the steps, however, the steps moved out from under her, and she fell to the concrete floor, striking her hip and arms. Herbst later learned that what she thought were steps were actually two wooden boxes that someone had stacked one on top of the other as a means of accessing/exiting the stage. After her fall, the boxes were moved away from the stage but remained in the area.

After her fall, Herbst returned to rehearsal. The next day, Sunday, Herbst played with the band in its Sunday performance. Later that day, Herbst returned to the opera rehearsal hall, but could not find the bench or the wooden boxes she had seen the previous day. On Monday, two days after her fall, Herbst went to her family doctor concerning her injuries from the fall. Herbst reported the incident to the University the following Tuesday.

Robert Brady, the band manager of the Iowa City community band, was in charge of making arrangements for concerts and setting up for concerts and rehearsals. The band is not affiliated with the University, but often practices in the music buildings at the University. On the day of Herbst’s fall, the University did not assist the band with setting up equipment in the opera rehearsal hall and did not inspect the room or otherwise supervise the use of the room.

Brady testified that in the past the band had access to a set of portable stairs for accessing/exiting the stage in the opera rehearsal hall, but that those stairs were not present on the day of rehearsal and he could not find them. When Brady arrived on the morning of the rehearsal, he saw boxes, one larger than the other, already at the center portion of the stage. Brady also testified that he knew a permanent set of stairs existed, but did not know exactly where they were located. Brady did not see Herbst fall from the stage but heard a loud crash.

In her later investigation, Martha Huels-beck, a University music school official, could not locate boxes in the stage area matching Herbst’s description. Huelsbeck stated that props are stored in the hallway leading to the permanent stairs and that props were located in that area at the time of Herbst’s fall. Herbst apparently did not see the hallway leading to the permanent steps because of the props stored in that area.

Dwight Sump, the technical coordinator for the production unit at the University of Iowa, testified that there is a set of portable steps in the opera rehearsal hall. Sump explained that the portable steps were on the rehearsal hall floor on Friday, the day before Herbst’s fall. During the week following Herbst’s fall, Sump went to the opera rehearsal hall and found the portable steps on the stage, one at each back corner, not down on the concrete floor where they normally would be. The steps appeared to be holding back the stage curtains, presumably to create additional space on the stage.

Sump also testified that the opera rehearsal room is used by various groups within the University’s School of Music and by individuals outside the University. The doors to the opera rehearsal room are not locked and there are no rules concerning the use of equipment in the room, such as the portable steps, props, chairs and other items. Persons using the room may set up the room to suit their needs and equipment is usually left wherever it was used; there are no rules requiring that equipment be returned to a certain place after use. The University does not charge a fee for use of the opera rehearsal hall.

After the jury returned a verdict finding the University was not at fault, the court entered judgment in favor of the University. Herbst then filed a motion for new trial, asserting that the district court erred in instructing the jury on the specifications of negligence concerning defendant, but the court overruled the motion.

Upon Herbst’s appeal, we transferred the case to our court of appeals, which affirmed the district court’s judgment. We granted Herbst’s application for further review.

II. Were the jury instructions proper?

A. The issue and standard of review.

The narrow question we must consider is whether the district court adequately instructed the jury concerning the specifications of negligence as alleged by plaintiff Herbst in her action against the defendant University.

Our standard of review concerning alleged error with respect to jury instructions is for correction of errors at law. Iowa R.App. P. 4; Duncan v. City of Cedar Rapids, 560 N.W.2d 320, 325 (Iowa 1997). Error in giving or refusing to give a particular instruction does not warrant reversal unless the error is prejudicial to the party. Sonnek v. Warren, 522 N.W.2d 45, 47 (Iowa 1994); Coker v. Abell-Howe Co., 491 N.W.2d 143, 148 (Iowa 1992).

B. Applicable law.

The rules concerning instructions by the trial court to the jury are well established. Under Iowa law, a court is required to give a requested instruction when it states a correct rule of law having application to the facts of the case and when the concept is not otherwise embodied in other instructions. Gamerdinger v. Schaefer, 603 N.W.2d 590, 595 (Iowa 1999). “Parties to lawsuits are entitled to have their legal theories submitted to a jury if they are supported by the pleadings and substantial evidence in the record.” Sonnek, 522 N.W.2d at 47. “When weighing the sufficiency of the evidence to support a requested instruction, we view the evidence in a light most favorable to the party seeking the instruction.” Duncan, 560 N.W.2d at 325; Sonnek, 522 N.W.2d at 47. Evidence is substantial when a reasonable mind would accept it as adequate to reach a conclusion. Coker, 491 N.W.2d at 150. “Instructions must be considered as a whole, and if some part was given improperly, the error is cured if the other instructions properly advise the jury as to the legal principles involved.” Thavenet v. Davis, 589 N.W.2d 233, 237 (Iowa 1999).

With respect to a negligence claim not involving res ipsa loquitur, a plaintiff must identify the specific acts or omissions relied on to generate a jury issue. Bigalk v. Bigalk, 540 N.W.2d 247, 249 (Iowa 1995). “Jury instructions should be formulated so as to require the jury to focus on each specification of negligence that finds support in the evidence.” Id. We explained in Bigalk

that the requirement for instructing on specific acts or omissions is at least partially designed to assure that the jury will give consideration to each of the alleged acts or omissions in determining the overall question of breach of duty.

Id. On this same point we have said:

The purpose of requiring the jury to consider factual specifications is to limit the determination of facts or questions arising in negligence claims to only those acts or omissions upon which the court has had an opportunity to make a preliminary determination of the sufficiency of the evidence to generate a jury question. Each specification should identify either a certain thing the allegedly negligent party did which that party should not have done, or a certain thing that party omitted that should have been done, under the legal theory of negligence that is applicable.

Cokery 491 N.W.2d at 151 (citations omitted).

The facts of the particular case, of course, determine whether a court’s instructions concerning negligence sufficiently encompass all specifications of negligence alleged by a plaintiff. Por example, in Schuller v. Hy-Vee Food Stores, Inc., 328 N.W.2d 328 (Iowa 1982), plaintiff fell over a canister ashtray in the aisle of a grocery store. Plaintiff sought submission of four specifications of negligence against the defendant: (1) blocking an aisle by placement of the ashtray; (2) placing an ashtray in a concealed location; (3) failing to place the ashtray in a safe location; and (4) failing to warn of the ashtray’s location. Schuller, 328 N.W.2d at 331-32. The court, however, submitted only the issue of whether defendant was negligent “in placing the ashtray stand in an aisle where customers were expected to walk.” Id. at 332. On appeal, we concluded that plaintiffs first three specifications of negligence were all based on the concept of placement of the canister and that this concept was adequately incorporated in the single specification of negligence submitted to the jury. Id.

In Bigalk, plaintiff was injured when she fell into an unguarded stairwell. In her suit against the property owner, plaintiff alleged that defendant was negligent in (1) failing to warn of the danger, (2) providing inadequate illumination in the area of the stairwell, (3) not covering the open stairwell, and (4) not providing a railing around the stairwell. 540 N.W.2d at 248-49. The court, however, advised the jury that the defendant was negligent in failing to make the open stairway safe or in failing to warn the plaintiff of the open stairway and the risk involved. Id. at 249. Plaintiff objected to the court’s instruction, arguing that it failed to advise the jury concerning the specific acts or omissions by defendant relating to failure to provide adequate illumination, failure to cover the opening, or failure to provide a railing. Id. On appeal, we reversed, concluding that the court’s instruction failed to ensure that the jury would give consideration to each of the alleged acts or omissions in determining the overall question of whether defendant breached its duty owed to plaintiff. Id. We said that plaintiff was entitled to have the jury instructed concerning each alleged act or omission that found support in the evidence. Id. at 250.

C. Application of law to facts.

On appeal, defendant does not dispute that it owed Herbst a duty of care in this premises liability case.

As above stated, the main question here is whether the district court adequately instructed the jury concerning Herbst’s requested specifications of negligence that were supported by the evidence.

Like the plaintiff in Bigalk, plaintiff Herbst challenges the manner in which the district court instructed the jury on her specific claims of negligence. Herbst’s theory was that the University breached its duties owed to her in at least three ways, as presented in her requested jury instruction:

a) permitting makeshift stairs to be used for access onto the stage at the Opera Rehearsal Hall.
b) failing to provide a safe and secure set of stairs for access onto the stage at the Opera Rehearsal Hall.
c) failing to provide unimpeded access to the permanent stairs for access to the stage at the Opera Rehearsal Hall.

The district court, however, refused to instruct the jury as requested by Herbst. Over Herbst’s timely objection, the court instructed the jury only on the following specification of negligence:

The defendant, on June 17, 1995, was negligent in failing to provide safe and secure access onto the stage at the Opera Rehearsal Hall.

Herbst asserts that the court’s instruction failed to adequately advise the jury concerning the potential ways in which defendant was negligent, i.e., permitting makeshift stairs to be used for access to the stage, failing to provide a safe and secure set of stairs for access onto the stage, and failing to provide unimpeded access to the permanent stairs. Herbst also contends that the court’s instruction allowed the jury to incorrectly find that the University satisfied its duty owed to Herbst simply by making a permanent set of stairs available.

Upon our review, we generally agree with Herbst’s contentions. First, the parties do not dispute the facts surrounding Herbst’s fall. For instance, the record shows that although a set of portable steps was usually available for use in the opera rehearsal hall, those stairs could not be found on the day of Herbst’s fall. As a result, people used various means to access the stage. Thus, substantial evidence of a negligent act exists in the record to submit Herbst’s requested specification of negligence with respect to whether defendant permitted makeshift stairs to be used for access onto and off the stage. We believe it likewise follows that there was substantial evidence to support submission of Herbst’s theory of a negligent omission in that the University was negligent in failing to provide safe and secure access onto and off the stage. Herbst’s specification of negligence concerning unimpeded access to the permanent set of stairs would be encompassed in the above specifications.

The University argues that Herbst’s theories of negligence were adequately incorporated in the court’s general instruction regarding safe and secure access onto the stage. We conclude, however, that the court’s instruction did not adequately ensure that the jury would give separate consideration to the alleged act or omission by the University as stated above.

Accordingly, we vacate the decision of the court of appeals and reverse the judgment of the district court.

III. Disposition.

We conclude that the district court did not adequately instruct the jury concerning the specifications of negligence as presented in plaintiffs premises liability claim against defendant. We vacate the decision of the court of appeals and reverse the judgment of the district court, and remand for a new trial.

COURT OF APPEALS DECISION VACATED; DISTRICT COURT JUDGMENT REVERSED; CASE REMANDED.

All justices concur except NEUMAN, J., who takes no part.

      . Although the State of Iowa is the properly named defendant, for convenience we will refer to the University of Iowa as defendant.


source: Caselaw Access Project

author: LARSON, Justice.

license: Public Domain

text:
    STATE of Iowa, Appellee, v. Manuel RAMIREZ, Appellant.
    No. 99-0087.
    Supreme Court of Iowa.
    Sept. 7, 2000.

      Jane E. Rósien, Des Moines, for appellant.
    Thomas J. Miller, Attorney General, Richard J. Bennett, Assistant Attorney General, John P. Sareone, County Attorney, and Steve Foritano and Frank Severi-no, Assistant County Attorneys, for appel-lee.
   LARSON, Justice.

Manuel Ramirez was convicted of first-degree murder under Iowa Code sections 707.1, 707.2(1), and 707.2(2) (1997). He appealed, and the court of appeals reversed. The State applied for further review, which we granted. We vacate the decision of the court of appeals and affirm the judgment of the district court.

I. Facts and Prior Proceedings.

This is a companion case to State v. Garcia, 616 N.W.2d 594 (Iowa 2000), also filed today. The facts common to both cases are discussed in Garcia, but we will relate some of the additional facts concerning Ramirez’s conviction as an aider and abettor. We view the evidence in the light most favorable to the verdict.

On the evening of March 28, 1998, Manuel Ramirez, Alejandro Garcia, and three others went out to buy beer. One of them, Isidro Ramirez (Isidro), stopped to talk to a man who told Isidro he wanted to hire the men to beat up a Daniel Hernandez Gonzales (Hernandez), who allegedly owed money for drugs. Each of the group would be paid $100.

The five men discussed a plan and the possibility of Hernandez’s wife or girlfriend being there. All five agreed to participate. Ramirez suggested taking masks, but it was decided not to. While Ramirez was present, Garcia produced a gun and suggested taking it in ease Hernandez had a weapon. Ramirez drove the group to meet the man who had hired them. Isidro again spoke with the man, who told Ramirez to follow him. Ramirez drove to a parking lot near the victim’s mobile home, where his passengers got out of the pickup. Garcia took a baseball bat and a gun; another man took two beer bottles. They forced their way into the mobile home and assaulted Hernandez, kicking him repeatedly in the stomach and back and striking him with the beer bottles and the baseball bat on the head and shoulders. Garcia ultimately shot him four times. The men ran to the pickup and fled, but law enforcement officers soon pulled them over. When the officers searched Ramirez’s vehicle, they found the gun inside a hole in the door panel on the passenger side. Hernandez was transported to a hospital, where he later died.

Ramirez and the four others were charged with first-degree murder. By agreement of counsel, defendants Enrique Garcia, Jaime Mendoza, and Manuel Ramirez, this defendant, were all set for trial together. Prior to trial, the State filed a motion for adjudication of law points and a motion to. exclude evidence of any claim that medical malpractice was an intervening' and superseding cause of the victim’s death. The court sustained the State’s motion and found as a matter of law that medical malpractice was not a superseding cause of death and denied the defendant’s proffered evidence on that point. Ramirez was found guilty of first-degree murder.

II. The Issues.

Ramirez raises four issues: (1) the trial court’s rejection of his theory of medical malpractice as an intervening cause of death, (2) the court’s failure to give his requested instructions, (3) sufficiency of the evidence, and (4) ineffective assistance of counsel.

A. The intervening cause issue. Ramirez contends the court erred in ruling as a matter of law that any medical malpractice on the part of hospital personnel, by removing and attempting to reinsert a tracheotomy tube, was not a superseding cause of death. We discussed this argument at length and rejected it in Garcia, 616 N.W.2d at 596. That case controls on this issue.

B. The proposed instructions. Jaime Mendoza, one of Ramirez’s code-fendants, testified for the State at Ramirez’s trial, pursuant to a plea agreement. On appeal Ramirez complains the jury instructions relating to the credibility of witnesses were insufficient, although he is not specific as to why. He requested the court to give a model federal instruction concerning accomplice testimony but provided the court with no details about why that instruction was more appropriate than the one the court gave. He contends the court should have included his proposed jury-instruction specifically addressing the credibility of accomplice testimony in the context of this case. His proposed instruction would say:

You have heard evidence that Jaime Mendoza has made a Plea Agreement with the State. His testimony was received into evidence and may be considered by you. You may give his testimony such weight as you think it deserves. Whether or not his testimony may have been influenced by the Plea Agreement is for you to determine.
The [witness’s] Guilty Plea cannot be considered by you as any evidence of guilt of Defendants Enrique Garcia or Manuel Ramirez. The witnesses] Guilty Plea can be considered by you only for the purpose of determining how much, if at all, to rely upon the witnesses] testimony.

The court refused to give Ramirez’s instruction, but it did give separate instructions on credibility and accomplice testimony. The credibility instruction stated:

In determining the facts, you may have to decide what testimony you believe. You may believe all, part or none of any witness’s testimony.
There are many factors which you may consider in deciding what testimony to believe, for example:
1. Whether the testimony is reasonable and consistent with other evidence you believe.
2. Whether a witness has made inconsistent statements.
3. The witness’s appearance, conduct, age, intelligence, memory and knowledge of the facts.
4. The witness’s interest in the trial, their motive, candor, bias and prejudice.

Also, the jury was instructed on accomplice testimony:

An “accomplice” is a person who knowingly and voluntarily cooperates or aids in the commission of a crime.
A person cannot be convicted only by the testimony of an accomplice. The testimony of an accomplice must be corroborated by other evidence tending to connect the Defendants with the crime.
Because Jaime Mendoza is an accomplice, the Defendants cannot be convicted only by that testimony. There must be other evidence tending to connect the Defendants with the commission of the crime. Such other evidence, if any, is not enough if it just shows that a crime was committed. It must be evidence tending to single out the Defendant[ ] as one of the people who committed it.

A court need not approve a requested instruction when the substance of it is adequately incorporated into the instructions given to the jury. State v. Spargo, 364 N.W.2d 203, 210 (Iowa 1985). In the general credibility instruction, the jurors were instructed they could believe all, part, or none of any particular witness’s testimony. They were also directed to consider the witness’s interest in the trial, their motive, candor, bias, and prejudice. As to the instruction dealing with accomplice testimony, the jury was instructed Ramirez could not be convicted on Mendoza’s testimony alone, but that other evidence must be shown to connect Ramirez with the crime. It is clear the substance of Ramirez’s requested instruction on accomplice testimony is contained in the instructions actually given. The court did not err in refusing the defendant’s proposed instruction.

C. Sufficiency of the evidence.

We review challenges to the sufficiency of the evidence for errors at law. We uphold a finding of guilt if “substantial evidence” supports the verdict. “Substantial evidence” is evidence upon which a rational finder of fact could find a defendant guilty beyond a reasonable doubt. We review the facts in the light most favorable to the State. Furthermore, we consider not only evidence which supports the verdict, but all reasonable inferences which could be derived from the evidence.

State v. Rohm, 609 N.W.2d 504, 509 (Iowa 2000) (citations omitted).

Ramirez argues there is insufficient evidence to support his first-degree murder conviction. Specifically, he contends there is not substantial evidence to support a finding of willfulness, deliberation, and premeditation in killing the victim or aiding and abetting in the killing. Further, he contends there was insufficient evidence of killing the victim with malice aforethought while participating in a burglary or willful injury, or aiding and abetting the same, under felony murder. He contends the primary evidence against him is Mendoza’s accomplice testimony, which suffers from a lack of credibility, had only minimal corroboration, and offered virtually no evidence of premeditation or malice aforethought.

Killing another with malice aforethought is murder. Iowa Code § 707.1. Murder is first-degree murder when committed willfully, deliberately, and with premeditation or while participating in a forcible felony. Iowa Code §§ 707.2(1), 707.2(2). Among those felonies listed as “forcible” are felonious assault and first-degree burglary. Iowa Code § 702.11.

Ramirez was charged with first-degree murder on the grounds the killing was done willfully, deliberately, and with premeditation “and/or” while participating in the forcible "felonies of willful injury “and/ or” first-degree burglary. Alternatively, Ramirez was charged with aiding and abetting the murder. It is undisputed Ramirez did not pull the trigger.

To sustain a conviction on the theory of aiding and abetting, the record must contain substantial evidence the accused assented to or lent countenance and approval to the criminal act by either actively participating or encouraging it prior to or at the time of its commission. State v. Jefferson, 574 N.W.2d 268, 277 (Iowa 1997). Proof of participation or encouragement need not be established by direct evidence; circumstantial evidence will suffice. State v. Lewis, 514 N.W.2d 63, 66 (Iowa 1994). When intent is an element of the crime charged, a person may be convicted on a theory of aiding and abetting if he participates with the requisite intent or with the knowledge the principal has the intent. State v. Lott, 255 N.W.2d 105, 109 (Iowa 1977); see also State v. Speaks, 576 N.W.2d 629, 632 (Iowa App.1998).

1. Felony murder. Felony murder requires participation in an underlying forcible felony and that a “murder” was committed during participation. State v. Ragland, 420 N.W.2d 791, 793 (Iowa 1988). Felony murder may be proved by showing that one of the persons involved in the underlying felony killed another person with malice aforethought. Id. It is not necessary for the State to prove Ramirez had malice aforethought, so long as it proved the principal did. Id. at 793-94.

Here, the five men agreed to go to the victim’s residence and injure him. That was the condition under which they were hired. Ramirez was part of this discussion and was told they would be paid $100 each. During this discussion, no one voiced dissent. In fact, the evidence indicates Ramirez took an active part in the planning. During these discussions, Garcia showed a gun to the group and suggested taking it with them. Ramirez drove the others to the murder site and waited for them to work Hernandez over with the beer bottles, baseball bat, and gun.

Substantial evidence supports a finding Ramirez aided and abetted the underlying felonies of willful injury and first-degree burglary. A willful injury is an act that is intended to cause and does cause serious injury to another. Iowa Code § 708.4. Serious injury is a bodily injury creating a substantial risk of death, causing serious permanent disfigurement, or causing protracted loss or impairment of the function of any body member or organ. Iowa Code § 702.18. There is evidence the perpetrators acted with the specific intent to inflict an injury creating a substantial risk of death, and their actions indicate an intent to inflict injury creating a “real hazard or danger of death.” State v. Anderson, 308 N.W.2d 42, 47 (Iowa 1981).

There is also substantial evidence of an underlying burglary. Burglary is committed when a person enters an occupied structure with the intent to commit a felony, assault, or theft. Iowa Code § 713.1. It is elevated to first-degree burglary when committed upon an occupied structure in which at least one person is present, and the burglar either has in his possession a dangerous weapon or intentionally or recklessly inflicts bodily injury on any person. Iowa Code § 713.3. Here, Ramirez aided in the planning and execution of first-degree burglary. The group entered Hernandez’s residence while he was in it with the intention of inflicting bodily injury on him. The underlying crime of first-degree burglary was adequately shown.

During the course of this burglary and/or willful injury, Garcia inflicted wounds on Hernandez that later caused his death. There is evidence Garcia possessed the requisite malice aforethought: he acted with the fixed purpose of inflicting an injury on Hernandez and possessed and used a deadly weapon. See State v. Artzer, 609 N.W.2d 526, 529-30 (Iowa 2000) (malice aforethought is fixed purpose or design to do physical harm to another). Malice may be implied by the use of a deadly weapon, accompanied by an opportunity to deliberate. State v. Love, 302 N.W.2d 115, 119 (Iowa 1981). It is immaterial whether the killing was within the contemplation or intention of Ramirez; it is only necessary that the principal had the necessary mens rea and the act was a consequence of carrying out the unlawful common design. Conner v. State, 362 N.W.2d 449, 455 (Iowa 1985). There is evidence in this record to allow a jury to find Ramirez guilty beyond a reasonable doubt of aiding and abetting first-degree murder under a theory of felony murder.

2. Willful, deliberate, and premeditated killing. For the State to prove Ramirez aided and abetted the commission of first-degree murder committed under the willful, deliberate, and premeditated alternative of Iowa Code section 707.2(1), the State was required to show the principal shot Hernandez “willfully, deliberately, with malice aforethought, premeditation, and a specific intent to kill.” The State was also required to show that Ramirez knowingly aided and abetted the principal. State v. Phams, 342 N.W.2d 792, 797 (Iowa 1983).

There was sufficient evidence to support these findings. Garcia shot Hernandez four times. As already discussed, the use of a deadly weapon permits an inference the killing was committed with malice aforethought. See Love, 302 N.W.2d at 119. The use of a deadly weapon permits an inference of a willful and premeditated killing, State v. Mayberry, 411 N.W.2d 677, 682 (Iowa 1987), and an inference of a specific intent to kill, Phams, 342 N.W.2d at 797.

The evidence shows Ramirez knew Garcia was going to beat Hernandez and was going to take a gun with him. He drove Garcia and the others to and from the crime scene. The evidence thus supports a finding he aided and abetted the murder. See State v. Cuevas, 281 N.W.2d 627, 629, 631-32 (Iowa 1979) (defendant was charged with aiding and abetting; sufficient evidence to convict of first-degree murder when she drove car with prior knowledge of planned burglary and killing resulted at the scene of the burglary while she sat in the automobile).

3. Cotroboration. Ramirez argues Mendoza’s accomplice testimony has only minimal corroboration. Iowa Rule of Criminal Procedure 20(3) states:

A conviction cannot be had upon the testimony of an accomplice or a solicited person, unless corroborated by other evidence which shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.

There is sufficient evidence, independent of the accomplice’s testimony, to connect Ramirez to the crime. For example, when police pulled his vehicle over shortly after the killing, he was driving, and the murder weapon was hidden in his vehicle. This evidence sufficiently connects Ramirez to the crime.

D. The ineffective-assistance-of-counsel claims. Ramirez asserts a claim of ineffective assistance of counsel in three respects: (1) not requesting severance of Ramirez’s trial, (2) failing to object to an instruction on attempted murder, and (3) failing to pursue discovery of internal hospital records relating to Hernandez’s medical treatment.

To prevail on an ineffective-assistance claim, Ramirez must prove by a preponderance of the evidence that his trial counsel failed to perform an essential duty, and that prejudice resulted from counsel’s error. State v. Casady, 597 N.W.2d 801, 807 (Iowa 1999). Ordinarily, claims of ineffective assistance of counsel are preserved for postconviction relief. State v. Rubino, 602 N.W.2d 558, 563 (Iowa 1999). This is especially the case when the challenged action implicates trial tactics or strategy that might be explained in a record more fully developed to address those issues. Id. However, when the record on appeal is adequate to address those issues, this court may do so on direct appeal. Id.

As to Ramirez’s claim of ineffective assistance relating to failure to discover hospital documents, we have concluded as a matter of law the hospital s treatment was not a superseding cause of death. Ramirez was not prejudiced by any failure to allow him to pursue discovery to support a claim that has no legal merit. We therefore reject this ground of alleged ineffective assistance of counsel. As to the claim that Ramirez’s attorney rendered ineffective assistance by failing to object to the inclusion of an attempted murder instruction and failing to request a separate trial, we preserve those issues for possible post-conviction proceedings.

We vacate the decision of the court of appeals and affirm the judgment of the district court.

DECISION OF COURT OF APPEALS VACATED; JUDGMENT OF DISTRICT COURT AFFIRMED.

All justices concur except NEUMAN, J., who takes no part.


text:
    STATE of Iowa, Appellee, v. Alejandro Albarran GARCIA, Appellant.
    No. 98-2089.
    Supreme Court of Iowa.
    Sept. 7, 2000.

      Patricia M. Hulting of Roehrick, Hult-ing, Krull & Blumberg, P.C., Des Moines, for appellant.
    Thomas J. Miller, Attorney General, Richard J. Bennett, Assistant Attorney General, John P. Sarcone, County Attorney, and Steve Foritano and Frank Severi-no, Assistant County Attorneys, for appel-lee.
   LARSON, Justice.

Alejandro Garcia was convicted in a jury-waived trial of first-degree murder under Iowa Code sections 707.1, 707.2(1), and 707.2(2) (1997). He appealed, and the court of appeals reversed. We granted the State’s application for further review and now vacate the decision of the court of appeals and affirm the judgment of the district court.

I. Facts and Prior Proceedings.

We recite the facts in the light most favorable to the verdict. Garcia and four others were hired for $100 each to beat up an individual named Daniel Hernandez Gonzales (Hernandez), who allegedly owed money for drugs. The four of them drove to the victim’s home armed with a metal baseball bat, beer bottles, and a gun “just in case” Hernandez was armed. Garcia, with the gun and baseball bat, broke into the victim’s trailer home and pushed him down on the couch. Three others followed, while another man remained in the vehicle. Garcia hit Hernandez with the baseball bat, and the others hit him with beer bottles. The victim was able to get loose and run outside. His attackers followed him and began kicking him. When the victim got up, Garcia shot him four times. Garcia and the others fled the scene but were soon apprehended.

The victim was immediately taken to a hospital. Two bullets had struck him in the leg and were not life threatening. The other two wounds would have been fatal without immediate medical attention. One bullet had entered his abdomen and pierced his stomach, liver, and left lung, coming to rest just outside his rib cage. Dr. Francis Garrity, the Polk County Medical Examiner, characterized this wound as “very serious” and would have resulted in the victim’s death if not treated. The other wound was from a bullet that grazed the victim’s aorta and perforated both lungs. This wound would also have resulted in death if not treated.

Doctors performed surgery on the victim’s abdomen and chest. During surgery, there were problems in repairing the holes in the victim’s stomach, and gastric contents spilled into the belly area. During surgery on his lower left lung, doctors were forced to remove a substantial portion of the lung.

As a result of the trauma to his lungs, the victim developed Adult Respiratory Disease Syndrome (ARDS), a serious condition that results in death in forty to eighty percent of adult cases. With this condition, the lung becomes so dysfunctional that oxygen is unable to properly move from the airways to the blood stream, requiring the use of mechanical devices such as ventilators. The victim was placed on a ventilator when he was no longer able to breathe on his own. As part of his treatment, he was also placed on a large quantity of fluids, causing him to develop severe swelling. Prior to his death, the victim’s condition was steadily and rapidly deteriorating, with a number of organ systems failing.

While the victim was hospitalized and while he was being shaved by a hospital employee, a tracheotomy tube used to connect him to the ventilator was nicked, and the attending physician decided to change the tube to increase the efficiency of the oxygen getting into the lungs. Due to the victim’s swollen neck, as the tube was being changed, his airway closed and the attending physician was unable to replace the tube. As a result, the victim asphyxiated. One doctor believed the victim would have died anyway, notwithstanding the tube change, within three or four days. It was this doctor’s opinion that the gunshot wounds were the proximate cause of the victim’s death and that the medical decisions relating to treatment were part of a chain of events set in motion by the wounds.

Garcia and the others were charged with first-degree murder. Prior to trial, Garcia moved to suppress a letter purportedly written by him while in jail. The letter, written by Garcia to the brother of one of Garcia’s codefendants, was intercepted by the codefendant’s mother, who gave it to her son’s attorney. The letter ultimately reached the State. Garcia moved unsuccessfully to suppress the letter.

As the trial date approached, the State filed a motion for adjudication of law points and a motion to exclude evidence that medical treatment, characterized by Garcia as grossly negligent, was an intervening and superseding cause of the victim’s death. The court sustained the State’s motion and found as a matter of law that the medical treatment was not a superseding cause of death.

Garcia was tried to the bench and convicted. He appealed, raising as issues the district court’s ruling that prevented him from introducing evidence of superseding cause and the court’s refusal to suppress the letter.

II. The Ruling Prohibiting Introduction of Evidence of Intervening Cause.

Garcia argues the district court denied him due process of law by depriving him of a defense to which he was entitled. In an offer of proof his expert, Dr. Lawrence Repsher, testified that the doctors’ actions in removing the tracheotomy tube from the victim was the cause of his death. Garcia argues this creates a jury question as to causation and that the district court erred in ruling prior to trial that he could not present this evidence. This is the basis on which the court of appeals reversed.

Pursuant to Iowa Rule of Evidence 104(a), the court held a hearing on the admissibility of evidence as to intervening and superseding causes of death. Although Dr. Repsher testified that the victim’s death was caused by incompetent medical treatment, the district court held that, even if that were true, it would not “vitiate a causal nexus between the risk [of incompetent treatment] and the act which created it, the shooting.” Citing Dr. Repsher’s testimony, the court stated that “reasonable minds would not differ in concluding that both the medical decision and the shooting [were] contributing causes to the death of [the victim].” The court held because the removal of the tracheotomy tube was not the sole proximate cause of death, a defense of intervening and superseding cause was not relevant and Garcia could not call Dr. Repsher as an expert witness to establish that defense.

The principles of causation normally associated with civil tort litigation are pertinent in criminal cases. State v. Murray, 512 N.W.2d 547, 550 (Iowa 1994). The rules restricting an actor’s responsibility under theories of superseding cause are for the court to apply and not the jury. Id. In determining the legal cause of death, we have endorsed the following principle:

[A]n act is a cause of an event if two conditions are satisfied: the event would not have occurred without the act; [and] the act made the event more likely. The first condition is necessary to distinguish the attempted from the completed crime, the second to rule out cases in which, while the event in question would not have occurred but for the act, the act did not create the kind of dangerous condition that would make such events more likely to occur.

Id. (quoting Brackett v. Peters, 11 F.3d 78, 79 (7th Cir.1993)).

A defendant can be relieved of criminal responsibility if an intervening act breaks the chain of causal connection between the defendant’s actions and the victim’s death. State v. Wissing, 528 N.W.2d 561, 565 (Iowa 1995). However, for an intervening act to relieve a defendant of criminal responsibility for homicide, the intervening act must be the sole proximate cause of death. Id. In deciding whether medical treatments are superseding causes, we have stated:

“The intervention of a force which is a normal consequence of a situation created by the actor’s negligent conduct is not a superseding cause of harm which such conduct has been a substantial factor in bringing about.”

Murray, 512 N.W.2d at 551 (quoting Restatement (Second) of Torts § 443 (1965)).

In the pretrial evidentiary hearing, Dr. Repsher’s opinion as to the cause of death was that it was the result of medical negligence. In fact, he had harsh words for the treatment rendered the victim. Referring to the removal of the tracheotomy tube, he said

it was outrageous. I mean it was— there was just no — -absolutely no reason to do it and all sorts of reasons not to do it. I mean it was just extraordinary.

At another point, the witness testified that removal of the tracheotomy tube (which apparently everyone agrees caused the victim to asphyxiate) was “completely irrational.” On cross-examination, however, the doctor agreed the gunshot wounds were sufficient in themselves to cause death in the absence of medical intervention.

The defendant relies on Restatement (Second) of Torts section 443, quoted above, stating that an intervening force that is a “normal consequence” of a defendant’s act cannot be a superseding cause of death. In this case, however, the intervening act was not normal according to the defendant; it was “outrageous,” and due process demands he be allowed to present it as a defense.

As the Supreme Court has said,

[t]he right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.

Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019, 1023 (1967).

The question is whether Garcia’s superseding-cause defense is one recognized in our law under the facts of this case. He acknowledges several of our cases holding that medical care furnished a crime victim cannot be a superseding cause of death but distinguishes them on the basis they involved ordinary negligence, not gross negligence as he claims here. See, e.g., Murray, 512 N.W.2d at 551 (death of comatose victim following withholding of nourishment and medication held as a matter of law to be normal consequence of criminal assault); Davis v. State, 520 N.W.2d 319, 320 (Iowa App.1994) (placement of feeding tube in victim resulting in bacterial peritonitis and death held to be normal consequence of stabbing).

The defendant cites no cases holding that gross negligence may constitute a superseding cause under the facts of this case. However, in a case not cited by the defendant, the New York Court of Appeals suggested such a rule in dictum. See People v. Eulo, 63 N.Y.2d 341, 482 N.Y.S.2d 436, 472 N.E.2d 286 (1984). The court said:

If victims’ deaths were prematurely pronounced due to a doctor’s negligence, the subsequent procedures [removal of organs for transplant] may have been a cause of death, but that negligence would not constitute a superseding cause of death relieving defendants of liability. If, however, the pronouncements of death were premature due to the gross negligence or the intentional wrongdoing of doctors, as determined by a grave deviation from accepted medical practices or disregard for legally cognizable criteria for determining death, the intervening medical procedure would interrupt the chain of causation and become the legal cause of death. Thus, the propriety of the medical procedures is integral to the question of causation.

Id. at 297 (citations omitted) (emphasis added). This dictum in Eulo was later discussed and impliedly rejected by the New York court, which held that even gross negligence is insufficient to relieve a defendant from criminal liability unless the treatment is the sole cause of death. See People v. Griffin, 80 N.Y.2d 723, 594 N.Y.S.2d 694, 610 N.E.2d 367 (1993). After discussing the dictum in Eulo, the court reaffirmed its traditional rule in such eases by saying:

The test for relief from criminal responsibility for a death applicable to the facts of this case remains whether the death can be attributed solely to the negligent medical treatment.

Griffin, 594 N.Y.S.2d 694, 610 N.E.2d at 369.

The facts of Griffin are strikingly similar to the facts in the present case. In Griffin, as here, the issue was whether the trial court erred in excluding evidence of medical malpractice as a superseding cause of death. In Griffin the victim of the stabbing developed complications during treatment, including ARDS, as in this case. The defense attempted to introduce evidence that medical malpractice was a superseding cause of death. The court held that medical malpractice, even if gross, must be the sole cause of death to be a superseding cause. As a matter of law, the malpractice was held not to be the sole cause of death. Id.

Other cases that have addressed the issue leave no doubt about the legal principle to be applied: even gross negligence will not relieve a criminal actor of liability unless it is the sole cause of death. A recent Connecticut case reaffirmed that principle. In State v. Shabazz, 246 Conn. 746, 719 A.2d 440 (1998), cert. denied, 525 U.S. 1179, 119 S.Ct. 1116, 143 L.Ed.2d 111 (1999), the defendant was charged with stabbing a victim to death. He relied on the defense of intervening medical malpractice and asserted that the medical treatment was grossly negligent. He attempted to use a physician who specialized in anatomic, clinical, and forensic pathology, who testified to that effect. The Connecticut court held that the trial court properly refused to allow that evidence because no rational fact finder could conclude the intervening medical treatment, even if grossly negligent, was the sole cause of death. Shabazz, 719 A.2d at 444.

This is consistent with the general rule. See Carolyn Kelly MacWilliam, Annotation, Homicide: liability where death immediately results from treatment or mistreatment of injury inflicted by defendant, 50 A.L.R.5th 467 (1997).

In that annotation, the author observed:

A person who inflicts a mortal or dangerous wound upon another is generally held criminally liable for the victim’s resulting death, even in those instances where medical negligence or mistreatment also contributed to the victim’s death. The courts have recognized a defense to a charge of homicide only when the treating physician has acted in a grossly negligent manner and that gross medical negligence teas the sole cause of the victim’s death.

Id. at 467 (emphasis added); see also 40 Am.Jur.2d Homicide § 18, at 468-69 (1999):

Negligent treatment or neglect of an injury will not excuse a wrongdoer unless the treatment or neglect was the sole cause of death; gross maltreatment by attending physicians or surgeons which was the sole cause of the alleged victim’s death is a good defense to a charge of homicide. It has also been said that, in order to avoid liability, the defendant must show that erroneous or unskilled medical care became the efficient intervening cause of death and superseded the effect of the wounds inflicted by the defendant so as to become the proximate cause of death.

Obviously, under this restrictive rule of proximate cause, it will be a rare case in which a criminal defendant is relieved from responsibility for the death of the victim, based on intervening medical care. However, one case illustrates when intervening medical treatment can break the connection between the criminal act and the death. See People v. Stewart, 40 N.Y.2d 692, 889 N.Y.S.2d 804, 358 N.E.2d 487 (1976). In that case, during medical treatment for a knife wound, surgeons discovered the victim also had an incarcerated hernia. After they sutured the knife wound and completed surgery on the victim’s stomach, they proceeded to correct the hernia. The patient died. The autopsy report stated death was caused by

a stab wound of the abdomen, stomach, cardiac arrest during surgical correction of a stab wound and another operation ivhich was indicated during the surgical procedure with sepsis, which means infection, and kidney shut down.

Id. at 490 (emphasis added). Because treatment for the hernia was not necessitated by the criminal attack, the court held the prosecution had failed to show the cause of death was the knife wound, and it ordered the manslaughter conviction to be reduced to assault. Id. at 492.

In the present case, the trial court properly ruled that evidence of malpractice, even if it was “outrageous” as the defendant’s witness testified, was inadmissible. No reasonable fact finder could conclude the medical treatment was the sole proximate cause of death. In fact, the defendant’s own witness testified it was not. We therefore affirm the district court on this issue.

III. The Letter From Jail.

Garcia’s second issue concerns a letter he mailed from jail to the brother of a codefendant. The letter was highly in-culpatory because in it he attempted to get the codefendant to lie for him by saying Garcia shot the victim in self-defense. The codefendant’s mother, who received the letter, took it to attorney Melissa Anderson of the Des Moines Adult Public Defender’s Office, who represented another defendant, Jamie Mendoza. Anderson eventually turned it over to prosecutors.

Garcia filed a motion in limine seeking to suppress the letter on the ground Anderson was his lawyer and that, by turning the letter over to the State, she breached their attorney-client relationship. (He did not claim the letter was privileged because it was sent to the codefendant’s brother, not to Anderson.) The district court denied the motion in limine, and although the evidence was not used at trial, Garcia raises this as an issue on appeal.

We reject his argument for two reasons. First, at the time Anderson received the letter she was not Garcia’s lawyer. While she had represented him earlier in an unrelated case, she had withdrawn before she received the letter. Second, Garcia could not claim prejudice because the State never introduced the letter into evidence. Apparently, the State held it in the event Garcia testified. He did not testify. Garcia does not claim, as the defendant did in State v. Brown, 569 N.W.2d 118 (Iowa 1997), that the state’s possession of damaging evidence chilled his right to testify because he feared the evidence would be brought out on cross-examination. See Brown, 569 N.W.2d at 118.

We vacate the decision of the court of appeals and affirm the judgment of the district court.

DECISION OF COURT OF APPEALS VACATED; JUDGMENT OF DISTRICT COURT AFFIRMED.

All justices concur except NEUMAN, J., who takes no part.


author: NEUMAN, Justice.

text:
    STATE of Iowa, Appellee, v. Donald A. CORWIN, Appellant.
    No. 99-207.
    Supreme Court of Iowa.
    Sept. 7, 2000.
    James P. Piazza, Jr., Des. Moines, for appellant.
    Thomas J. Miller, Attorney General, Martha E. Boesen, Assistant Attorney General, John P. Sarcone, County Attorney, and Odell McGhee, Assistant County Attorney, for appellee.
   NEUMAN, Justice.

Donald Corwin stands convicted of two counts of homicide by vehicle. The question is whether, on remand for resentenc-ing from a prior appeal, the district court erred by adding two $150,000 judgments for restitution to Corwin’s sentence pursuant to Iowa Code section 910.3B (Supp. 1997), a statute enacted in the interim. We hold the court’s application of the new statute to Corwin offended constitutional proscriptions against ex post facto laws. We therefore vacate that portion of the judgment and remand for a corrected sentence.

The facts are not disputed. In March 1996, Corwin drove while intoxicated and caused a two-car collision that resulted in two deaths. He subsequently pled guilty to two counts of homicide by vehicle. See Iowa Code § 707.6A(1) (1995). The district court imposed two consecutive ten-year terms of imprisonment. Corwin appealed, claiming the court failed to give adequate reasons for imposing consecutive sentences.

In an unpublished opinion dated November 3, 1997, this court vacated Corwin’s sentence and remanded the case to the district court for resentencing. In the meantime, Corwin had settled the wrongful death and consortium claims brought by the accident victims’ estates. Pertinent to this appeal, the legislature had also enhanced the penalty for vehicular homicide and other felonies involving the death of the victim. Effective July 1, 1997, an offender convicted of a felony causing death was required to pay a minimum of $150,000 in restitution to the victim’s estate. See 1997 Iowa Acts ch. 125, § 11 (now codified at Iowa Code § 910.3B (1999)).

The State moved to amend Corwin’s sentence on remand to include restitution under Iowa Code section 910.3B. Corwin resisted enforcement of the new statute, claiming — among other things — that its application to him would violate fundamental rules prohibiting ex post facto laws. The district court rejected Corwin’s contentions and this appeal followed.

I. Scope of Review.

Because Corwin’s challenge to the applicability of section 910.3B raises a constitutional question, our review is de novo. Hills v. Iowa Dep’t of Transp., 534 N.W.2d 640, 641 (Iowa 1995).

II. Issue on Appeal.

The district court imposed the substantial restitution mandated by section 910.3B over Corwin’s protest that applying the new statute to offenses committed prior to its enactment violated the Ex Post Facto Clauses of our federal and state constitutions. See U.S. Const. art. I, § 10; Iowa Const, art. I, § 21. These constitutional provisions forbid the application of a new punitive measure to conduct already committed. State v. Klindt, 542 N.W.2d 553, 554 (Iowa 1996). The clauses are also violated when a statute makes more burdensome the punishment for a crime after its commission. Id. Purely civil penalties, however, are not subjected to such restrictions. See Hills, 534 N.W.2d at 641 (“civil penalties do not violate ex post facto clauses, even though their penalties may be retroactive and more burdensome”). Thus the controlling question is “whether the legislative aim was to punish that individual for past activity” or merely to impose some restriction on the individual “as a relevant incident to a regulation of a present situation.” State v. Pickens, 558 N.W.2d 396, 398 (Iowa 1997) (quoting De Veau v. Braisted, 363 U.S. 144, 160, 80 S.Ct. 1146, 1155, 4 L.Ed.2d 1109, 1120 (1960)).

The State argued in the district court, and now urges on appeal, that section 910.3B is remedial in nature, not punitive, so the court was correct to reject Corwin’s ex post facto argument. Since the entry of the district court’s decision, however, this court has found that section 910.3B bears the hallmarks of a penal statute. State v. Izzolena, 609 N.W.2d 541, 549 (Iowa 2000). We observed that the statute “reveals several punitive elements,” see id. at 548, and concluded it serves not only a remedial purpose but accomplishes the goals of retribution "and deterrence normally associated with punishment. Id. at 549. We thus characterized the statute’s minimum threshold of $150,000 as a “fine” subject to scrutiny under the Excessive Fines Clauses of our federal and state constitutions. Id.

Our decision in Izzolena controls the case before us. Although focused on an Excessive Fines Clause challenge, our analysis in Izzolena rested on the premise that the legislative aim of section 910.3B was to enhance the punishment for crimes resulting in death, thereby deterring such conduct in others. That analysis applies with equal force to Corwin’s ex post facto challenge. Given section 910.3B’s purpose, the State was not at liberty to seek enforcement of the statute’s penalty in connection with a crime that predated its enactment. See Hills, 534 N.W.2d at 642 (where essential aim of amended sentencing statute is punitive, ex post facto principles prohibit its application to offenses committed before its effective date).

The crimes for which Corwin stands convicted were committed in 1996. Section 910.3B was enacted in 1997. Because section 910.3B makes more burdensome the penalty suffered by Corwin for crimes he committed before the statute was enacted, it cannot be applied to him without violating constitutional norms. We therefore vacate that portion of the district court’s sentence that mandated restitution under section 910.3B and remand for the entry of a corrected judgment.

SENTENCE VACATED; REMANDED WITH INSTRUCTIONS.