State of Iowa v. Owen F. Benson , 919 N.W.2d 237 ( 2018 )


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  •                IN THE SUPREME COURT OF IOWA
    No. 17–0650
    Filed October 19, 2018
    STATE OF IOWA,
    Appellee,
    vs.
    OWEN F. BENSON,
    Appellant.
    On review from the Iowa Court of Appeals.
    Appeal from the Iowa District Court for Woodbury County, Jeffrey L.
    Poulson, Judge.
    The defendant seeks further review of a court of appeals decision
    that affirmed his convictions for assault causing bodily injury and child
    endangerment. REVERSED AND REMANDED.
    Priscilla E. Forsyth, Sioux City, for appellant.
    Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant
    Attorney General, Patrick Jennings, County Attorney, and Kristine
    Timmins and Joshua Widman, Assistant County Attorneys, for appellee.
    2
    CHRISTENSEN, Justice.
    In this appeal, Owen Benson contends he did not cross the line from
    lawful corporal punishment to criminal conduct. Benson maintains there
    was insufficient evidence to support his conviction for both assault
    causing bodily injury and child endangerment because the State did not
    prove his actions exceeded the scope of legal corporal punishment.
    Similarly, he contends the district court abused its discretion in denying
    his motion for a new trial because the verdict was contrary to the weight
    of the evidence. For the reasons set forth below, we conclude the evidence
    was sufficient to support Benson’s convictions, and the district court did
    not abuse its discretion in denying the motion for new trial.
    Benson also claims that the jury instructions (1) misled the jury
    because the district court failed to provide a marshaling instruction
    explaining which form of intent applied to which charge, and (2) did not
    adequately describe specific intent. For the reasons set forth below, we
    conclude the jury instructions were prejudicially erroneous, and we
    reverse Benson’s convictions and sentence and remand for new trial.
    I. Background Facts and Proceedings.
    On March 6, 2016, Owen Benson was watching B.B., G.B., and
    Z.B.—three of his fiancé’s children—until their father arrived to take them
    to his home as part of an arranged custody agreement. The children were
    approximately eleven, ten, and eight years old at the time. Benson joined
    the children on the porch carrying the wooden handle from a toy
    broomstick, upset about alleged damage the children caused to some
    furniture.   Benson subsequently hit B.B. and G.B. twice each on the
    buttocks with the broom handle. Next, Benson hit Z.B. twice on the back
    of his upper legs with the broom handle. The children’s father arrived soon
    after to take them to his home.
    3
    The next morning, the children’s father noticed bruises on the back
    of Z.B.’s legs.   G.B. and B.B. did not have bruises.             The father
    photographed the bruises and reported them to a school counselor. The
    school counselor reported the bruises to the Iowa Department of Human
    Services (DHS), and a child protective investigation commenced.
    Ruth Stewart, the DHS investigator, conducted a home visit at
    Benson’s home, where Benson admitted hitting Z.B. but declined to
    answer her questions fully. When Stewart met with Z.B., she observed
    bruises on the back of his legs that were “[a]pproximately three inches
    long, maybe an inch or more in width, and the one specifically on his right
    leg had a dark redness around it” similar to an outline. After observing
    Z.B.’s bruises and speaking with Benson and his fiancé’s children, Stewart
    contacted law enforcement and referred Z.B. to the Child Advocacy Center
    at Mercy Medical Center in Sioux City for a forensic interview.
    The forensic interview with Dr. Michael Jung from the Child
    Advocacy Center revealed that Z.B.’s bruising was a “high-impact
    acceleration/deceleration injury” resulting from an object. Dr. Jung noted
    that the injury “wasn’t from sitting on something [and] it required
    significant velocity or speed to injure the tissue in that manner.” Further,
    he explained,
    The central sparing, where there’s no bruising in the inner
    part of the injury, is less injured than the surrounding tissue,
    and that occurs when tissue is injured in a high-impact,
    accelerating type of injury that actually shears the tissue on
    the edge of the object, and it requires a fairly high velocity or
    impact to do that.
    Following the investigation, the State charged Benson with assault
    causing bodily injury in violation of Iowa Code sections 708.1(2)(a) and
    708.2(2) (2016), a serious misdemeanor, and child endangerment in
    violation of Iowa Code sections 726.6(1)(a) and 726.6(7), an aggravated
    4
    misdemeanor, for hitting Z.B. The State did not charge Benson for hitting
    B.B. or G.B. A jury convicted Benson of assault causing bodily injury and
    child endangerment. Benson filed a motion for a new trial, arguing the
    verdict was contrary to the weight of the evidence, and the district court
    denied this motion at Benson’s sentencing hearing.
    Benson appealed his convictions, presenting multiple claims on
    appeal. First, he claimed there was insufficient evidence to support his
    convictions since the evidence showed his actions were within the bounds
    of legal corporal punishment. Second, he alleged the district court abused
    its discretion in denying his motion for a new trial because the verdicts
    were contrary to the weight of the evidence. Third, Benson argued the
    district court erred by instructing the jury on both general and specific
    intent without providing a marshaling instruction explaining which form
    of intent applied to which charge.          Finally, he asserted the jury
    instructions did not adequately describe specific intent.
    The court of appeals affirmed the judgment of the district court. It
    concluded there was sufficient evidence to support Benson’s convictions,
    especially given Benson’s testimony that he intended for the punishment
    to “sting.” The court of appeals also determined the jury instructions were
    not confusing or misleading since the marshaling instruction “clearly
    stated the specified purpose in mind.”      Benson sought further review,
    which we granted.
    II. Standard of Review.
    We review claims of insufficient evidence 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). Substantial evidence
    supports a verdict “if, ‘when viewed in the light most favorable to the State,
    it can convince a rational jury that the defendant is guilty beyond a
    5
    reasonable doubt.’ ” State v. Wickes, 
    910 N.W.2d 554
    , 563 (Iowa 2018)
    (quoting State v. Reed, 
    875 N.W.2d 693
    , 705 (Iowa 2016)). Moreover, “[w]e
    generally review rulings on motions for new trial asserting a verdict is
    contrary to the weight of the evidence for an abuse of discretion.” 
    Id. at 563–64
    (quoting State v. Ary, 
    877 N.W.2d 686
    , 706 (Iowa 2016)). An abuse
    of discretion occurs when the district court “exercises its discretion on
    grounds clearly untenable or to an extent clearly unreasonable” in such a
    manner that the district court’s decision “is not supported by substantial
    evidence or . . . is based on an erroneous application of the law.” 
    Id. at 564
    (quoting State v. Hill, 
    878 N.W.2d 269
    , 272 (Iowa 2016)).
    “[W]e review challenges to jury instructions for correction of errors
    at law.” Alcala v. Marriott Int’l, Inc., 
    880 N.W.2d 699
    , 707 (Iowa 2016)
    (quoting Anderson v. State, 
    692 N.W.2d 360
    , 363 (Iowa 2005)). Erroneous
    jury instructions warrant “reversal when prejudice results.”         State v.
    Coleman, 
    907 N.W.2d 124
    , 138 (Iowa 2018). Prejudice results when jury
    instructions mislead the jury or materially misstate the law. 
    Id. We also
    “review refusals to give a requested jury instruction for correction of errors
    at law.” 
    Alcala, 880 N.W.2d at 707
    . In doing so, we consider the jury
    instructions as a whole rather than in isolation to determine whether they
    correctly state the law.   State v. Harrison, 
    914 N.W.2d 178
    , 188 (Iowa
    2018).
    III. Analysis.
    A. Sufficiency of the Evidence.         Benson proclaims we should
    reverse his convictions because there was insufficient evidence, and he
    contends the district court abused its discretion when it denied his motion
    for a new trial since the verdicts were contrary to the weight of the
    evidence. To convict Benson of assault causing bodily injury, the State
    had to prove beyond a reasonable doubt that Benson committed an act
    6
    “intended to cause pain or injury to, or which [was] intended to result in
    physical contact which [was] insulting or offensive to [Z.B.], coupled with
    the apparent ability to execute the act,” Iowa Code § 708.1(2)(a), and the
    act caused “bodily injury” to Z.B., 
    id. § 708.2(2).
       Moreover, to convict
    Benson of child endangerment, the State had to prove beyond a reasonable
    doubt that Benson was a “person having custody or control over a child”
    who “[k]nowingly act[ed] in a manner that create[d] a substantial risk to
    [the] child or minor’s physical, mental or emotional health or safety.” 
    Id. § 726.6(1)(a).
    Benson contends the State failed to demonstrate that his conduct
    constituted an act intended to cause pain or injury or to result in offensive
    physical conduct to support his conviction of assault causing bodily
    injury.   Likewise, he argues the State failed to demonstrate that his
    conduct created a substantial risk to Z.B.’s health and safety to support
    his conviction of child endangerment.       Rather, Benson proclaims the
    evidence only demonstrates that his actions constituted “legal corporal
    punishment as allowed by Iowa law.”
    “[P]arents have a right to inflict corporal punishment on their child,
    but that right is restricted by moderation and reasonableness.” State v.
    Arnold, 
    543 N.W.2d 600
    , 603 (Iowa 1996).         When a parent’s conduct
    surpasses “the line of reasonable correction, his or her conduct becomes
    criminal.”    
    Id. “The proper
    test is whether, under the particular
    circumstances, the amount of force used or the means employed by the
    parent rendered such punishment abusive rather than corrective in
    character.”      
    Id. This determination
    “varies with the age, physical
    condition, and other characteristics of a child as well as with the gravity
    of the child’s misconduct.” 
    Id. 7 Viewing
    the evidence “in the light most favorable to the State,” the
    record contains substantial evidence to support the jury’s verdict that
    Benson is guilty beyond a reasonable doubt of assault causing bodily
    injury and child endangerment.      
    Wickes, 910 N.W.2d at 563
    (quoting
    
    Ramirez, 895 N.W.2d at 890
    ).         Benson testified that he used the
    broomstick handle because the children had previously “laughed and said
    that didn’t hurt” when he spanked them with an open hand.
    Consequently, he did more research into spanking and discovered
    guidance from an online article that declared “you should use an object to
    make [a spanking] sting.” Benson testified that he “implemented” that
    guidance when he hit Z.B. with the broom handle, and a reasonable jury
    could conclude from this testimony that Benson intended to cause pain,
    injury, or offensive contact as well as a substantial risk to Z.B.’s health
    and safety.
    Further, there is substantial evidence to support the jury’s
    conclusion that Benson’s use of force on Z.B. was “abusive rather than
    corrective in character.” 
    Arnold, 543 N.W.2d at 603
    . Z.B. was wearing
    jean pants when Benson hit him with the broomstick, yet Z.B. had bruises
    that were still visible four days after the incident. See 
    id. at 603
    (holding
    there was sufficient evidence to support a child endangerment conviction
    when the child’s bruises “were clearly visible three days after the
    incident”). The bruises were “[a]pproximately three inches long, maybe an
    inch or more in width, and the one specifically on his right leg had a dark
    redness around it.” As Dr. Jung explained at trial, Z.B. sustained a “high-
    impact acceleration/deceleration injury” that “required significant velocity
    or speed to injure the tissue in that manner.” Though Benson contends
    he did not spank Z.B. with the intent to injure him because his conduct
    was only to discipline Z.B. for allegedly damaging furniture, “the jury [is]
    8
    free to reject certain evidence, and credit other evidence.”     
    Reed, 875 N.W.2d at 705
    (alteration in original) (quoting State v. Thomas, 
    847 N.W.2d 438
    , 442 (Iowa 2014)). Based on the evidence that Benson used the broom
    handle because he wanted the use of force to “sting” and the severity of
    the bruises, the State presented substantial evidence to “convince a
    rational jury that defendant [was] guilty beyond a reasonable doubt.”
    
    Wickes, 910 N.W.2d at 563
    (quoting 
    Ramirez, 895 N.W.2d at 890
    ).
    Additionally, the district court did not abuse its discretion in
    denying Benson’s motion for a new trial because the verdicts were not
    contrary to the weight of the evidence. “A verdict is contrary to the weight
    of the evidence only when ‘a greater amount of credible evidence supports
    one side of an issue or cause than the other.’ ” 
    Ary, 877 N.W.2d at 706
    (quoting State v. Shanahan, 
    712 N.W.2d 121
    , 135 (Iowa 2006)).            “[A]
    district court should only grant a motion for new trial ‘in the extraordinary
    case in which the evidence preponderates heavily against the verdict
    rendered.’ ” 
    Wickes, 910 N.W.2d at 570
    (quoting 
    Ary, 877 N.W.2d at 706
    ).
    This is not the rare case in which the verdicts run contrary to the
    weight of the evidence. As we have already noted, there was substantial
    evidence to support the jury’s finding that Benson was guilty of assault
    causing bodily injury and child endangerment. This is true even without
    considering the evidence in the light most favorable to the State. Thus,
    the district court did not abuse its discretion by denying Benson’s motion
    for a new trial.
    B. Jury Instructions Regarding Intent. Benson argues the jury
    instructions did not properly inform the jury which form of intent to apply
    to which charges, nor did they adequately convey the definition of “specific
    intent.” The district court included the following marshaling instructions:
    9
    INSTRUCTION NO. 14
    To commit a crime, a person must intend to do an act
    which is against the law. While it is not necessary that a
    person knows that act is against the law, it is necessary that
    the person was aware he or she was doing the act and he or
    she did it voluntarily, not by mistake or accident. You may,
    but are not required to, conclude a person intends the natural
    results of his or her acts.
    INSTRUCTION NO. 15
    “Specific intent” means not only being aware of doing an
    act and doing it voluntarily, but in addition, doing it with a
    specific purpose in mind.
    Because determining the defendant’s specific intent
    requires you to decide what the defendant was thinking when
    an act was done, it is seldom capable of direct proof.
    Therefore, you should consider the facts and circumstances
    surrounding the act to determine the defendant’s specific
    intent. You may, but are not required to, conclude a person
    intends the natural results of his or her acts.
    INSTRUCTION NO. 16
    The State must prove all of the following elements of
    Assault Causing Bodily Injury:
    1. On or about the 6th day of March, 2016, Owen Benson did
    an act which was intended to cause pain or injury to [Z.B.] or
    which was intended to result in physical contact which was
    insulting or offensive to [Z.B.].
    2. Owen Benson had the apparent ability to do the act.
    3. Owen Benson’s act caused bodily injury to [Z.B.] as defined
    in Instruction No. 19.
    ....
    INSTRUCTION NO. 20
    The State must prove all of the following elements of Child
    Endangerment:
    1. On or about the 6th day of March, 2016, Owen Benson was
    a person having custody or control of [Z.B.]
    2. [Z.B.] was under the age of fourteen years.
    10
    3. Owen Benson acted with knowledge that he was creating a
    substantial risk to [Z.B.’s] physical, mental, or emotional
    health or safety.
    ....
    Benson objected to the general-intent instruction, claiming it was
    unnecessary since assault is a specific-intent crime. Benson also objected
    to the instruction on specific intent and requested the court add language
    informing the jury that “[s]pecific intent is present when from the
    circumstances the offender must have subjectively desired the prohibited
    result.” Bacon ex rel. Bacon v. Bacon, 
    567 N.W.2d 414
    , 417 (Iowa 1997)
    (quoting State v. Redmon, 
    244 N.W.2d 792
    , 797 (Iowa 1976)). The district
    court overruled Benson’s objections and refused to submit Benson’s
    requested jury instruction. On appeal, Benson contends the inclusion of
    instructions on both general intent and specific intent without a
    marshaling instruction explaining which intent applied to which charge
    misled the jury. He also challenges the district court’s refusal to include
    his requested language in the instruction on specific intent, reasoning his
    proposed language would have “more appropriately instruct[ed] the jury
    as to the elements of the case.”
    In order to determine whether the jury instructions misled the jury
    or materially misstated the law, we must first examine the form of intent
    required for both assault causing bodily injury and child endangerment.
    Notably, we have never analyzed whether child endangerment requires
    specific or general intent, though the district court appears to have
    instructed the jury that it is a general-intent crime by stating that the State
    had to prove Benson “acted with knowledge.” Specific intent exists “when
    from the circumstances the offender . . . subjectively desired the prohibited
    result,” whereas general intent is present “when from the circumstances
    the prohibited result may reasonably be expected to follow from the
    11
    offender’s voluntary act, irrespective of any subjective desire to have
    accomplished such result.” State v. Fountain, 
    786 N.W.2d 260
    , 264 (Iowa
    2010) (quoting 
    Redmon, 244 N.W.2d at 797
    ). This distinction parallels the
    federal distinction between specific and general intent, as the United
    States Supreme Court has declared, “ ‘[P]urpose’ corresponds loosely with
    the common-law concept of specific intent, while ‘knowledge’ corresponds
    loosely with the concept of general intent.” United States v. Bailey, 
    444 U.S. 394
    , 405, 
    100 S. Ct. 624
    , 632 (1980). Since Benson was charged with
    child endangerment under Iowa Code section 726.6(1)(a), which requires
    a person to act “knowingly,” the district court was correct to instruct the
    jury that child endangerment is a general-intent crime. See Iowa Code
    § 726.6(1)(a).
    In contrast, assault “includes a specific intent component.”
    
    Fountain, 786 N.W.2d at 265
    . “Although in the past we have defined the
    assault alternative in section 708.1(2) as a general intent crime,” we
    overruled those cases and declared it a specific-intent crime in State v.
    Heard, 
    636 N.W.2d 227
    , 231 (Iowa 2001). We based our holding in Heard
    on the language of section 708.1(2), which requires intent to cause pain,
    injury, offensive contact, or fear of injurious and immediate physical
    contact. 
    Id. at 231–32;
    see also Iowa Code § 708.1(2)(a)–(b).
    Following Heard, the legislature amended the language of section
    708.1, adding, “An assault as defined in this section is a general intent
    crime.” State v. Bedard, 
    668 N.W.2d 598
    , 601 (Iowa 2003) (quoting Iowa
    Code § 708.1(1) (2003)).     However, we noted in Bedard that “this
    amendment did not alter the substantive content of the statute as it
    pertains to the element of the crime,” and the language regarding intent in
    the statute remained an element of the offense.     
    Id. at 601.
      We have
    continued to focus “on the elements of the crime,” proclaiming in Fountain
    12
    that assault “includes a specific intent component” because the elements
    “include an act that is done to achieve the additional consequence of
    causing the victim pain, injury[,] or offensive 
    contact.” 786 N.W.2d at 265
    .
    Thus, regardless of the legislature’s designation, assault substantively is
    a specific-intent crime under section 708.1 based upon the language in
    the statute. 
    Id. The issue
    in this case is whether the jury instructions “convey[ed]
    the applicable law in such a way that the jury ha[d] a clear understanding
    of the issues” before it. Rivera v. Woodward Res. Ctr., 
    865 N.W.2d 887
    ,
    892 (Iowa 2015) (quoting Thompson v. City of Des Moines, 
    564 N.W.2d 839
    ,
    846 (Iowa 1997)). That was not the case here. Based on our review of the
    jury instructions as a whole, the district court’s failure to provide a
    marshaling instruction explaining which form of intent applied to which
    charge rendered the instructions confusing and misleading.
    For example, the court of appeals concluded that the language of
    Instruction No. 15 and Instruction No.16 clearly conveyed to the jury that
    assault causing bodily injury required specific intent. In part, Instruction
    No. 15 defined “specific intent” as an act done “with a specific purpose in
    mind,” and Instruction No.16 proclaimed the State had to show Benson
    did an act “intended to cause pain or injury to [Z.B.]” or “intended to result
    in physical contact which was insulting or offensive to [Z.B.]” in order to
    convict Benson of assault causing bodily injury.         (Emphasis added.)
    However, the court of appeals overlooked the impact of Instruction No. 14,
    which instructed the jury that “[t]o commit a crime, a person must intend
    to do an act which is against the law . . . .”     (Emphasis added.)      The
    similarities between “intend[ing] to cause pain or injury to [Z.B.] [or]
    intend[ing] to result in physical contact” and “intend[ing] to do an act”
    create confusion about the form of intent applicable to assault causing
    13
    bodily injury. This confusion could have been resolved with a marshaling
    instruction explaining which form of intent applied to which charge, such
    as:
    INSTRUCTION NO. 15
    [Concerning Instruction 16 only,] “specific intent” means
    not only being aware of doing an act and doing it voluntarily,
    but in addition, doing it with a specific purpose in mind . . . .
    Moreover, the record contains instances in which statements made
    to the jury during Benson’s trial may have created further confusion for
    the jury as to the requisite intent for each charge. In its closing, the State
    began to walk the jury through the elements of assault causing bodily
    injury, noting,
    [T]he State will have to prove that on or about the 6th day of
    March, the defendant did an act which was intended to cause
    pain or injury, the defendant had the apparent ability to do
    the act, and that the defendant caused bodily injury to [Z.B.].
    The State continued to discuss the elements of assault causing bodily
    injury, explaining bodily injury then discussing intent.           The State
    explained,
    [A]nd so going back to our main marshaling instruction,
    looking at the elements we have to consider, the bodily injury
    element is proven. So that leaves us with the question of did
    the act—was the act intended to cause pain or injury?
    You’re going to be instructed on intent in this case.
    You’re going to be given the general criminal intent definition.
    And the things you focus on there, basically was the defendant
    aware that he was doing an act and did he do it voluntarily?
    The Court is also going to instruct you on the specific
    intent instruction under Iowa law. And that is not only
    knowing that the defendant was aware he was doing an act,
    he did it voluntarily, the State also has to show that the
    defendant did the act with a specific purpose in mind.
    By discussing both general and specific intent in its discussion on
    the elements of assault causing bodily injury, the State may have blurred
    14
    the jury’s understanding of the requisite form of intent for assault causing
    bodily injury.
    Similarly, the State argued on rebuttal,
    The State’s argument is that the defendant consciously
    was aware of his actions on March 6th and that those actions
    constituted Assault Causing Bodily Injury and Child
    Endangerment.
    He acted with a specific purpose in mind when he picked
    the stick up and struck [Z.B.] on the buttocks two times . . . .
    (Emphasis added.) While the State argued Benson’s actions constituted
    assault    causing   bodily   injury—a    specific-intent   crime—if   Benson
    “consciously was aware of his actions,” the jury instruction on general
    intent informed the jury that general intent is present when “the person
    was aware he or she was doing the act.” These are essentially the same
    descriptions, yet they discuss two different forms of intent. Thus, the State
    incorrectly described to the jury the form of intent required to convict
    Benson of assault causing bodily injury.
    Upon reading the jury instructions as a whole, it is evident that the
    district court’s refusal to submit Benson’s requested marshaling
    instruction explaining which form of intent applied to which charge was
    erroneous because the submitted jury instructions did not “convey the
    applicable law in such a way that the jury ha[d] a clear understanding of
    the issues.” 
    Rivera, 865 N.W.2d at 892
    (quoting 
    Thompson, 564 N.W.2d at 846
    ).   As a result, Benson was prejudiced because the instructions
    misled the jury. See 
    Coleman, 907 N.W.2d at 138
    .
    In contrast, the district court did not err in refusing to submit
    Benson’s requested jury instruction on specific intent. The district court
    must submit “a requested jury instruction if it correctly states the
    applicable law and is not embodied in other instructions.” Alcala, 
    880 15 N.W.2d at 707
    (quoting Sonnek v. Warren, 
    522 N.W.2d 45
    , 47 (Iowa 1994)).
    Here, Benson’s requested jury instruction that “[s]pecific intent is present
    when from the circumstances the offender must have subjectively desired
    the prohibited result,” 
    Bacon, 567 N.W.2d at 417
    (quoting 
    Redmon, 244 N.W.2d at 797
    ), was already adequately conveyed in the jury instructions.
    The district court instructed the jury that specific intent means “doing [an
    act] with a specific purpose in mind.” This instruction was taken verbatim
    from the Iowa State Bar Association’s Criminal Jury Instructions, and it
    correctly states the law. See Iowa State Bar Ass’n, Iowa Criminal Jury
    Instructions 200.2 (2016) (“ ‘Specific intent’ means not only being aware
    of doing an act and doing it voluntarily, but in addition, doing it with a
    specific purpose in mind.”). Thus, the district court’s denial of Benson’s
    requested specific-intent instruction was not erroneous since the
    submitted instructions already embodied the requested instruction and
    accurately conveyed the law.      Nevertheless, we reverse and remand
    Benson’s case to the district court for a new trial due to the prejudicial
    jury instructions that failed to inform the jury of the applicable form of
    intent for each charge. See, e.g., State v. Hoyman, 
    863 N.W.2d 1
    , 19 (Iowa
    2015) (“[C]ontradictory and confusing instructions will necessitate a new
    trial.”).
    IV. Conclusion.
    We reverse the judgment of the district court and remand for a new
    trial for the aforementioned reasons.
    REVERSED AND REMANDED.