According to the Iowa Supreme Court’s ruling in State of Iowa vs Orlando Rodriquez of Des Moines the answer is yes, a passenger who is guilty of the co-commission of a crime can be guilty of a crime committed by the driver of the get-a-way car. (Des Moines Register, Reporter Jeff Eckhoff, October 22, 2011, Non-drivers can be guilty of vehicular homicide ) The facts indicate that Rodriquez, a passenger, and his brother who was driving sped away from a convenience store after stealing $27 in gasoline, then crashed into a motorcyclist who later died from his injuries. Rodriguez entered an Alford plea to vehicular homicide and was given a 10-year sentence in the big house. Prosecutors argued both brothers shared in the criminal enterprise and therefore equally guilty of the crimes. The Iowa Supreme Court agreed and found the lawyers not ineffective.

• Decision on Lombardi Law Firm website: State of Iowa vs Orlando Rodriguez, 10-1223.
• Date of Activity: September 23, 2009, 5 p.m.
• Crime: Reckless vehicular homicide
• Jurisdiction: Iowa District Court in and for Polk County
• Judge: Joel D. Novak, Iowa District Court Judge
• Supreme Court Docket Number: 10-1223
• Date of Decision: October 21, 2011
• Supreme Court of Iowa on review from the Iowa Court of Appeals.
• Opinion written by Justice Mansfield

Charge: Count I: homicide by vehicle-OWI, a class “B” felony in violation of Iowa Code section 707.6A(1) (2009); Count II: homicide by vehicle-reckless, a class “C” felony in violation of Iowa Code section 707.6A(2); and Count III: involuntary manslaughter, a class “D” felony in violation of Iowa Code section 707.5(1). The information accused each brother of committing these crimes “individually by joint criminal conduct, or by aiding and abetting another.” Both accomplice theories were mentioned by the prosecution again during the October 13, 2009 preliminary hearing.

Attorneys: Mark C. Smith, State Appellate Defender, and Dennis D. Hendrickson, Assistant State Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Linda J. Hines, Assistant Attorney General, John P. Sarcone, County Attorney, and Steve Foritano and David Porter, Assistant County Attorneys, for appellee.

…

A. Recklessness. Rodriguez pled guilty to homicide by vehicle-reckless in violation of Iowa Code section 707.6A(2), which states:

2. A person commits a class “C” felony when the person unintentionally causes the death of another by any of the following means:

a. Driving a motor vehicle in a reckless manner with willful or wanton disregard for the safety of persons or property, in violation of section 321.277.

Iowa Code Section 321.277 defines recklessness for driving purposes:

Any person who drives any vehicle in such manner as to indicate either a willful or a wanton disregard for the safety of persons or property is guilty of reckless driving.

Every person convicted of reckless driving shall be guilty of a simple misdemeanor. See also Iowa Code § 702.16 (2009) (“A person is ‘reckless’ or acts recklessly when the person willfully or wantonly disregards the safety of persons or property.”).

In finding recklessness “we do not condition guilt on an intent to cause harm. We simply look to whether the actor embarked on an activity which is known, or should be known, to pose a substantial risk to others.” State v. Conroy, 604 N.W.2d 636, 638 (Iowa 2000). “[R]eckless driving is not an intentional wrong in the sense that resulting harm is intended.” State v. Baker, 203 N.W.2d 795, 796 (Iowa 1973). A driver is reckless when he knows or should know that his driving puts others at an unreasonable risk of harm. State v. Conyers, 506 N.W.2d 442, 444 (Iowa 1993).

Criminal culpability requires more than merely negligent behavior. State v. Sutton, 636 N.W.2d 107, 111 (Iowa 2001).

To prove recklessness sufficient to support a conviction for vehicular homicide under section 707.6A(2)(a), the State must prove that the defendant engaged in conduct “fraught with a high degree of danger,” conduct so obviously dangerous that the defendant knew or should have forseen that harm would flow from it.

Id. at 112 (quoting State v. Torres, 495 N.W.2d 678, 681 (Iowa 1993)).

No. 10–1223 STATE OF IOWA v. RODRIGUEZ
Appeal from the Iowa District Court for Polk County, Joel D. Novak, Judge.

Orlando David Rodriguez appeals his conviction on a guilty plea for reckless vehicular homicide and the part of his sentence requiring payment of a law enforcement initiative surcharge. COURT OF APPEALS DECISION AFFIRMED; DISTRICT COURT JUDGMENT AFFIRMED IN PART AND VACATED IN PART.

I. Background Facts and Proceedings.

According to the minutes of testimony, the evidence presented at the preliminary hearing, and the transcript of what became the guilty plea hearing, on September 23, 2009, at approximately 5 p.m., defendant Orlando Rodriguez (Rodriguez) and his brother Santos committed a drive-away theft of gasoline from the Casey’s General Store located in the 4300 block of Park Avenue in Des Moines. A Casey’s security camera captured the theft in detail as well as the subsequent fatal collision that occurred during their attempt to flee the gas station. The video shows Rodriguez pumping gas while Santos remained ready at the wheel, with the vehicle’s brake lights flashing on and off. When Rodriguez finished pumping, instead of paying, he quickly jumped back into the car which immediately sped onto Park Avenue without slowing down to check for or yield to traffic. Rodriguez admitted to an investigating officer that it had been the brothers’ intention to steal gas.

The security video shows that the vehicle’s brake lights never illuminated after it left the pumping area, the vehicle was driven at a faster speed than the other cars that departed the gas station before it, and the vehicle appeared to be accelerating as it turned out of the gas station onto a busy street at a busy time of day. Eyewitnesses confirmed that the brothers’ Ford Explorer was traveling at a high rate of speed.

According to witnesses, as the brothers’ Explorer raced out onto Park Avenue, it pulled directly into the path of a motorcyclist, Bruce Mundy. A witness reported that Mundy was driving his motorcycle along Park Avenue at a safe and appropriate speed; if anything, Mundy was causing traffic to slow behind him. Although Mundy tried to swerve to avoid a crash, he was unsuccessful, and the fast-moving Explorer struck and killed him.

Rodriguez immediately jumped out of the Explorer and briefly checked on Mundy. He helped his brother Santos, who has only one leg, out of the Explorer and handed him his walker. Rodriguez then fled the scene of the accident on foot. Rodriguez was arrested soon afterward while hiding in the nearby neighborhood. After Rodriguez was apprehended, personal identification papers that he had apparently thrown away while fleeing were also retrieved.

An arresting officer observed signs of marijuana intoxication on both Rodriguez and his brother: bloodshot, watery eyes; white coatings on their tongues; and poor performance on a horizontal gaze nystagmus test. The officer therefore requested urine samples from each brother. Both of them tested positive for marijuana at the time of the crash. When apprehended, Rodriguez told police that he, not his brother, had been the driver at the time of the collision with the motorcycle. The Casey’s video later confirmed otherwise.

…

We think this case fits into a joint criminal conduct paradigm without much difficulty. Rodriguez admitted he and his brother went to the gas station with the intent of stealing gasoline, and the security video 15

recording confirmed they followed through on their plan. This satisfies the first two elements under section 703.2, demonstrating that Rodriguez acted “in concert with another” and “knowingly . . . participat[ed] in a public offense.” Smith, 739 N.W.2d at 294 (interpreting Iowa Code § 703.2).

4 Santos then committed the “different crime” of vehicular homicide. His collision with Mundy was “in furtherance of the defendant’s offense” of theft, in the sense that it occurred while Santos was “furthering” the offense by speeding away from Casey’s. See Satern, 516 N.W.2d at 844. Furthermore, section 703.2 specifically provides that an act done in “escape” from the original offense is sufficient by itself to link the anchor crime to the secondary crime, making a participant in the former equally guilty of the latter.

Also, high-speed, reckless driving away from the scene of a gas theft that occurs during the day can be “reasonably foreseen,” Smith, 739 N.W.2d at 294, and so the unintentional homicide that resulted from that flight was also reasonably foreseeable. Indeed, rapid flight by vehicle is arguably inherent in drive-away thefts of gasoline. Such thefts occur in open areas frequented by the public that are typically under surveillance. The stolen merchandise (i.e., the gasoline) goes directly into the vehicle and is inseparable from it. Hence, it can be expected that the perpetrators will drive away in their vehicle at a high rate of speed.

4See Iowa Code §§ 701.2 (defining “public offense” as “that which is prohibited by statute and is punishable by fine or imprisonment”), 701.8 (providing that misdemeanors are “public offenses”), 714.2(5) (providing that a theft of property not exceeding two hundred dollars in value is a simple misdemeanor); see also State v. Klawonn, 609 N.W.2d 515, 518 (Iowa 2000) (noting that a public offense that serves as the predicate for involuntary manslaughter may be a simple misdemeanor traffic offense).