State of Iowa v. Dana Elizabeth Kirgan

IN THE COURT OF APPEALS OF IOWA

No. 22-0699
Filed May 24, 2023

STATE OF IOWA,
Plaintiff-Appellee,

vs.

DANA ELIZABETH KIRGAN,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Warren County, Terry R. Rickers,

Judge.

Following a bench trial, the defendant argues there is insufficient evidence

to support her convictions for intimidation with a dangerous weapon and going

armed with intent. REVERSED AND REMANDED.

Austin Jungblut of Parrish Kruidenier Dunn Gentry Brown Bergmann &

Messamer L.L.P., Des Moines, for appellant.

Brenna Bird, Attorney General, and Timothy M. Hau, Assistant Attorney

General, for appellee.

Heard by Bower, C.J., and Tabor and Greer, JJ.
2

GREER, Judge.

Following a trial to the bench, Dana Kirgan appeals her convictions for

intimidation with a dangerous weapon and going armed with intent. 1 She

challenges each conviction, arguing it is not supported by substantial evidence.

I. Background Facts and Proceedings.

After a domestic disturbance took place at the family home on May 3, 2020,

Kirgan was charged by trial information with intimidation with a dangerous weapon

(count I), going armed with intent (count II), and domestic abuse assault with a

dangerous weapon (count III). Kirgan was also charged with the simple

misdemeanor of reckless use of a firearm. She pled not guilty to each of the four

charges and waived her right to a jury trial.

The case was tried to the bench in July 2021; the facts were largely

undisputed. Travis (Kirgan’s husband) and Briston (Kirgan’s adult daughter) were

home preparing a Sunday meal on May 3. Travis and Briston had recently learned

that Kirgan was engaged in an affair, and Kirgan had not come home the night

before. When she returned to the family home that Sunday afternoon, Travis and

Briston were unwelcoming and wanted her to leave. The three argued inside the

1 The court also found Kirgan guilty of domestic abuse assault with a dangerous
weapon; the court merged this conviction with Kirgan’s conviction for intimidation
with a dangerous weapon. Because we do not know how the district court will
resolve the case involving the charge of going armed with intent, we note merger
may apply again. We remind the district court that it earlier correctly said:
However, if there’s a conviction on that [aggravated domestic
assault] charge, its sentence would merge into either going armed
with intent or intimidation with a dangerous weapon or both
depending on the ultimate verdict of the case. So while it’s possible
that a conviction for aggravated domestic assault could occur, in
terms of sentencing the Court could not impose additional sentence
time or additional fine on the aggravated domestic assault case.
3

home. At some point Travis took Kirgan’s car keys, and he and Briston went

outside to retrieve his debit card from Kirgan’s purse, which was in the car. Kirgan

went outside too, and the verbal fighting continued. Briston dumped lemonade on

Kirgan’s car and, eventually, Travis and Briston went back inside the home; they

locked Kirgan outside.

At that point, Kirgan went to her car, which was parked to the west of the

house in the driveway, and got her .38 revolver. Travis was standing in one of the

doorways at the back of the home, and he watched Kirgan walk back around the

side of the house with the revolver at her side, pointed to the ground. Then, with

the family home behind her, Kirgan lifted her arm and fired the gun toward the

outbuilding and cornfield south of the family home. We include defendant’s exhibit

A, which shows the layout of the Kirgan property (the Kirgan home has the green

roof):
4

While looking at Travis, Kirgan asked “Now what?” and then walked toward him—

still holding the gun. Travis took off running through the home; he called a friend

to contact 911 on his behalf and shouted to Briston, “She’s got a gun, she’s going

to kill me, run!” Briston and Travis exited the home through the front door; they

continued down the road on foot until they encountered Deputy Sheriff Jon Wilbur,

who had been dispatched to the Kirgan home based on a 911 call. According to

Deputy Wilbur’s testimony at trial, both Briston and Travis appeared scared when

he came upon them.

After speaking with Briston and Travis, Deputy Wilbur went to the Kirgan

home, where Kirgan was sitting in her still-parked vehicle drinking an alcoholic

beverage. Kirgan initially lied about discharging a firearm but later admitted she

walked around the southwest corner of the home, saw Travis standing in one of

the doorways, and fired a shot to the south before walking toward Travis with the

gun still in her hand.

In a written ruling read in open court, the district court found Kirgan guilty of

each of the four charges.

Kirgan moved in arrest of judgment and for new trial, which the district court

denied before sentencing. When entering judgment, the court merged count III

with count I. Kirgan was sentenced to a term of incarceration not to exceed ten

years with a five-year mandatory minimum on count I, a term of incarceration not

to exceed five years on count II, and thirty days on the reckless-use-of-a-firearm
5

conviction. She was ordered to serve the three sentences concurrently. Kirgan

appeals.2

II. Discussion.

Kirgan challenges the sufficiency of the evidence supporting her

convictions. “In determining whether there was substantial evidence, we view the

evidence in the light most favorable to the State.” State v. Abbas, 561 N.W.2d 72,

74 (Iowa 1997). “Substantial evidence means such evidence as could convince a

rational trier of fact the defendant is guilty beyond a reasonable doubt.” Id. “In

determining if there was substantial evidence, we consider all of the evidence in

the record, not just the evidence supporting a finding of guilt.” Id. That said, we

review the district court’s interpretation of a statute for correction of errors at law.

State v. Green, 680 N.W.2d 370, 372 (Iowa 2004). And we are not bound by the

district court’s conclusions of law. Id.

A. Intimidation with a Dangerous Weapon.

The district court set out the elements the State had to prove for Kirgan to

be properly convicted of intimidation with a dangerous weapon:

1. On or about May 3, 2020, [Kirgan] discharged a firearm
within an assembly of people.
2. The firearm was a dangerous weapon, as defined in Iowa
Code Section 702.7 [(2020]).
3. The victim(s) actually experienced fear of serious injury and
their fear was reasonable under the existing circumstances.
4. [Kirgan] discharged the firearm with the specific intent to
injure or cause fear or anger in the victim(s).

2Kirgan asked for discretionary review of her misdemeanor conviction for reckless
use of a firearm. Our supreme court denied her request before transferring the
case to us, so that conviction is not part of this appeal.
6

Kirgan challenges the evidence supporting two of the four elements, arguing the

State failed to prove (1) she discharged a firearm “within an assembly of people”

and (2) that her husband and daughter “experienced fear or serious injury and their

fear was reasonable.” See State v. Williams, 674 N.W.2d 69, 71 (Iowa 2004) (“At

trial, the State must prove every element of the crime charged beyond a

reasonable doubt.”).

We start by considering whether there is substantial evidence Kirgan

discharged the weapon within an assembly of people. The district court reasoned

she did, though Briston and Travis were inside the home and not in the direction

that Kirgan fired, because:

The Britannica dictionary defines an “assembly,” among other things,
as “a group of people who have gathered together.” Travis, Briston,
and [Kirgan] were clearly gathered together on the afternoon of
May 3, 2020. During any family gathering, regardless of how
dysfunctional it may be, stepping outside to a backyard while
remaining on the premises does not exclude someone from being
part of the ongoing gathering.

(Internal footnote omitted.) The district court did not need to turn to the dictionary

to define “assembly.” In State v. Bush, our supreme court held that a person

discharges a firearm within an assembly of people when the person discharges

the gun “into or through two or more persons at the same place.” 518 N.W.2d 778,

780 (Iowa 1994). The district court’s definition seems to turn on the subjective

mental state of the people in the area—whether they voluntarily gathered at the

same location at some point in time for a common purpose. But this misses the

point of the supreme court’s interpretation, which focuses on the location of the

people in relation to the projectile—whether the firearm was discharged “into or

through two or more persons at the same place.” Id. (emphasis added). As a
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panel of this court explained before, “The statutory focus is where the shot is

directed, not on the location of the shooter. The harm to be avoided is the aiming

and firing of a dangerous weapon ‘into or through two or more persons at the same

place.’” State v. Jefferson, No. 07-1839, 2008 WL 5235170, at *2 (Iowa Ct. App.

Dec. 17, 2008) (quoting Bush, 518 N.W.2d at 780). And, of course, we are required

to apply the law as interpreted by the supreme court. See Atchison v. Shaffer,

No. 14-1555, 2016 WL 5929999, at *2 (Iowa Ct. App. Oct. 12, 2016) (“[W]e are

bound by supreme court precedent.”).

Here, it is undisputed Kirgan did not shoot into or through any persons; she

shot toward a cornfield, which was empty and in the opposite direction of Briston’s

and Travis’s locations. Briston was in the kitchen of the home and Travis was in a

doorway at the back of the home. The home was to the north of where Kirgan

stood when she fired the shot. Briston did not see it, but Travis did; he testified

Kirgan fired the gun “towards [his] shop, south” where there is “the garage, an

outbuilding, and a cornfield.” Kirgan testified similarly, stating she “shot one shot

kind of in between two buildings south of the house. . . . It was into a cornfield.”

As Travis admitted, Kirgan never even pointed the weapon in his direction.

While Briston, Travis, and Kirgan were all on the same property at the time

Kirgan discharged the gun, the shot was not in the direction of any person.3 There

3 The State also urges us to rely on Deputy Wilbur’s testimony that, when deciding
to charge Kirgan with intimidation with a dangerous weapon, he considered that “it
was unknown how many people were to the south in those properties where the
round was discharged towards. . . . There is a field off to the south and the east,
correct. But where their street goes back there are other houses back going farther
south.”
But these “unknown persons” cannot satisfy the statutory elements either.
First, there is no evidence how many people were present at these properties at
8

is not substantial evidence to support Kirgan’s conviction for intimidation with a

dangerous weapon. Cf. Bush, 518 N.W.2d at 780 (holding substantial evidence

supported the defendant’s conviction when a jury could reasonably find he “fired

the shot through [the] ring of people, thereby subjecting them to the obvious risk

of severe injury and even death”); State v. Jennings, No. 14-2098, 2016 WL

3269545, at *5 (Iowa Ct. App. June 15, 2016) (finding substantial evidence the

defendant discharged his weapon within an assembly of people when he shot into

the air while “surrounded by other people in the crowded pedestrian mall” and

recognizing that “a bullet shot into the air may still be dangerous”); In re N.W.E.,

564 N.W.2d 451, 454 (Iowa Ct. App. 1997) (affirming trial court’s determination the

juvenile discharged a weapon in an assembly of people “because there were four

persons in front of him and two on each side of him. All persons were placed at

risk when the gun was fired”).

the time Kirgan discharged the firearm, and the statute is not met unless there are,
at a minimum, two. See State v. Ross, 845 N.W.2d 692, 701 (Iowa 2014)
(recognizing that an assembly requires “two or more persons” and so, “to meet the
statutory requirement, at a minimum the State must prove that when [the
defendant] discharged his firearm he placed two persons in the assembly in
reasonable fear”); cf. State v. Rivas, No. 03-0511, 2004 WL 57660, at *4 (Iowa Ct.
App. Jan. 14, 2004) (finding there was insufficient evidence to support a conviction
for intimidation with a dangerous weapon in regard to a neighbor who, “during the
actual incident . . . had no idea a gun was being fired or that he was potentially in
danger,” and concluding the neighbor’s delayed fear “the next day, when he
discovered what had occurred,” did not satisfy the element). And because these
“unknown persons” are unaccounted for (and possibly nonexistent), we are without
evidence that any “unknown persons” “actually experienced fear of serious injury.”
See Ross, 845 N.W.2d at 701 (“[T]he question is whether there was sufficient
evident to support a finding that [the defendant’s] action of shooting objectively and
subjectively placed two people in the assembly in reasonable apprehension of
serious injury.”).
9

Because the State failed to prove Kirgan discharged her firearm within an

assembly of people, her conviction for intimidation with a dangerous weapon

cannot stand.4 We reverse Kirgan’s conviction on this charge. See State v.

Dullard, 668 N.W.2d 585, 597 (Iowa 2003) (providing that Double Jeopardy

principles prohibit a retrial “when the defendant’s conviction is reversed on grounds

that the evidence was insufficient to sustain the conviction”).

B. Going Armed with Intent.

The district court also set out the elements the State had to prove to

establish Kirgan’s guilt for going armed with intent:

1. On or about May 3, 2020, [Kirgan] was armed with a
weapon.
2. The weapon was a dangerous weapon as defined in Iowa
Code Section 702.7.
3. [Kirgan] was armed with the specific intent to use the
weapon against another person.
4. While armed with the weapon [Kirgan] moved from one
place to another.

Kirgan challenges the third element, arguing there is not substantial

evidence she was armed with the specific intent to use the weapon against another

person. “Intent to use the weapon against another person” means “intent to shoot

another person.” State v. Slayton, 417 N.W.2d 432, 434 (Iowa 1987); see also

State v. Gipson, No. 17-1359, 2018 WL 3650337, at *2 (Iowa Ct. App. Aug. 1,

2018) (“[A] conviction for going armed with intent requires proof that the defendant

carried a dangerous weapon with the specific intent to inflict serious injury.”

(alteration in original) (citation omitted)). But here, as the State recognizes in its

4 We need not reach Kirgan’s argument that the State failed to prove both Travis
and Briston actually experienced reasonable fear of serious injury—the third
element of intimidation with a dangerous weapon.
10

appellate brief, the district court convicted Kirgan based on its finding she had

specific intent to use the weapon “to intimidate” Travis and Briston. Intimidation is

not enough to satisfy the elements for going armed with intent. See Slayton, 417

N.W.2d at 434 (“If we adopt the State’s position that the ‘intent to use’ element of

708.8 is satisfied by proof that defendant intended to use the gun to intimidate or

harass his parents by pointing it toward or displaying it to them we would arrive at

an unreasonable result.”). So, we cannot affirm Kirgan’s conviction on appeal.

However, because it is possible—based on the evidence already provided

by the State—that a rational factfinder could conclude Kirgan intended to shoot

Travis or Briston, we remand to the district court for new findings and conclusions

as to this charge on the existing record. See, e.g., State v. Showens, 845 N.W.2d

436, 449–50 (Iowa 2014) (reversing the judgment of conviction below and

remanding for new findings, conclusions, and judgment on the existing record

when “substantial evidence could support a finding” the defendant violated the

statute and it was unclear whether the district court “applied the appropriate legal

standard”); State v. Pexa, 574 N.W.2d 344, 347 (Iowa 1998) (vacating the

judgment and remanding for further proceedings on the existing record when the

district court misapplied the statute and “an issue of fact remain[ed] concerning the

defendant’s guilt”).

III. Conclusion.

Because there was insufficient evidence to convict Kirgan of intimidation

with a dangerous weapon, we reverse that conviction. A reasonable factfinder

could find evidence to convict Kirgan of going armed with intent but, because the

district court applied the wrong standard in reaching its decision, we reverse
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Kirgan’s conviction and remand to the district court for new findings and

conclusions as to that charge on the existing record.

REVERSED AND REMANDED.