State of Iowa v. Montgomery Gerrard McKernan

IN THE COURT OF APPEALS OF IOWA _______________ No. 24-1109 Filed October 21, 2026 _______________ State of Iowa, Plaintiff–Appellee, v. Montgomery Gerrard McKernan, Defendant–Appellant. _______________ Appeal from the Iowa District Court for Story County, The Honorable Adam D. Sauer, Judge. _______________ AFFIRMED _______________ Alexander Smith (argued) of Parrish Kruidenier L.L.P., Des Moines, attorney for appellant. Brenna Bird, Attorney General, and Zachary Miller (argued), Assistant Attorney General, attorneys for appellee. _______________ Heard at oral argument by Tabor, C.J., and Greer and Ahlers, JJ. Opinion by Greer, J. 1 GREER, Judge. Montgomery McKernan entered a Salvation Army seeking food assistance. He became incensed when a staff member asked him if he had scheduled a pickup time and repeatedly called her a “fucking bitch,” referred to her as a “cunt,” and allegedly threatened to “choke the life out of” her. When other patrons intervened, McKernan shoved one woman to the ground, causing bruising. Although McKernan claimed he was attacked and merely stood his ground, the jury convicted him of assault. On appeal, he argues the trial court erred by denying his final motion for a continuance, giving a duty-to-retreat instruction, refusing his requested spoliation instruction, and denying his request for an on-site jury view of the scene. Finding no error on the part of the trial court, we affirm McKernan’s conviction. I. Background Facts and Proceedings. A. Background. By the morning of May 23, 2023, McKernan had endured several difficult months. His family had fallen on hard times, and income from his self-employment had dwindled to the point that putting food on the table became a concern. Seeking assistance, McKernan began visiting a Salvation Army facility to use its public food pantry to help feed his children. A receptionist, an experienced Salvation Army staff member, was working the front desk on May 23. By then, however, McKernan’s relationship with her had deteriorated after months of repeated interactions. McKernan believed the receptionist despised him and that ever since a prior dispute over his request for a larger box of food, she had been “sneering” at him and singling him out by changing the rules, such as requiring only him to 2 call ahead. During the COVID-19 pandemic, however, the Salvation Army had implemented an updated policy asking all individuals seeking food assistance to call ahead and schedule a pickup appointment. Although staff did not strictly enforce the requirement, they strongly preferred it because it helped manage supplies and reduced preparation time. Patrons were notified through signs on the front doors and through reminders during phone calls. McKernan had been reminded to call ahead many times during his visits, but he did not schedule an appointment before arriving on May 23. That afternoon, McKernan walked into the Salvation Army lobby without an appointment. When the receptionist asked whether he had scheduled a pickup, McKernan became angry and responded, “You fucking bitch, I don’t need to make an appointment.” The receptionist told him others were ahead of him in line and he would need to wait his turn, which further upset him. He then began haranguing the receptionist, repeatedly calling her a “fucking bitch.” At that point, a manager heard a commotion from her office. She heard raised voices and the receptionist asking someone to have a seat, followed by profanity and a voice saying, “Why don’t you do your fucking job; I’m here to get food; I need food; you’re denying me food.” Recognizing the speaker as McKernan, the manager went to deescalate the situation. She told him he would receive food, as he had on prior occasions when he arrived without calling ahead, but explained he needed to wait his turn behind others in line. McKernan remained focused on the receptionist and did not respond to the manager’s efforts. Amid continued profanity, the manager recalled hearing McKernan threaten to “choke the life out of [the receptionist].” The manager instructed him to leave the premises, but he refused. Hearing a raised voice calling someone a “fucking bitch,” two other managers from the 3 back of the store went to the lobby to assist. One manager repeatedly instructed McKernan to leave, which he ignored, while the other manager moved a young child away from the confrontation. The situation remained relatively controlled until McKernan escalated his swearing. Another patron was in the lobby with her son to pick up food assistance. Worried that her three-year-old was hearing the profanity, this patron stepped forward to confront McKernan. But when McKernan began calling the receptionist a “cunt,” the patron reported that “everyone kind of snapped” and voices rose across the lobby as multiple people, including the patron, shouted for him to leave. As the patron moved within arm’s reach, McKernan shoved her backward onto the floor. She injured her underarm and right leg in the fall. McKernan’s perception of the incident was slightly different. He testified at trial that when he arrived there was no line, he stood where he normally did, and the receptionist called on him very quickly in a “sneering voice.” He said he asked to use the food pantry and the receptionist told him, “You’ll have to call first,” which prompted him—after “weeks and months of sneering” and “changing up the rules”—to “correct this lady” by calling her a “fucking bitch.” He acknowledged it was “probably not the best language,” but claimed he was trying to make the point that “F’ing is like slang,” comparing it to how “Joe Rogan uses it meaning you’re really an overbearing, hateful woman to kick a man when he’s down when I’m just trying to help my family get food, and I didn’t want her to do it to other people.” He also testified he did not think the receptionist heard him because other women confronting him over his swearing were too loud, so he tried to explain himself to others, saying, “that bitch behind the desk is preventing our family from getting food.” He insisted that, aside from the three swear 4 words, “I don’t swear again. There’s no more swear words that I speak.” He said the confrontation then escalated, with numerous women “chanting” at him like “witches’ antics,” and that he saw the receptionist smirking and believed she had set him up by working in concert with these other women. He testified that one woman, whom he later called a “disgusting witch woman” and repeatedly described as having no teeth, was “triggered” because he swore in front of her children, that she got close, threatened him, and began pushing his chest. He claimed he feared the group was about to attack him, and feeling chest pain, he instinctively turned and pushed this woman away in self-defense. He also claimed that this woman may have tripped. Either way, he reported leaving the Salvation Army after the shove. McKernan denied ever threatening to “choke the life out of” the receptionist. Likewise, the patron denied ever touching McKernan. Neither the receptionist nor the three managers reported seeing the patron touch McKernan at any point during this confrontation. A few hours after Salvation Army staff called police, an officer contacted McKernan and recorded their conversation on his body-worn camera. McKernan described being swarmed and attacked, and he lifted his shirt, pointed to alleged redness on his chest, and asked the officer to photograph his injuries as evidence. The officer did not recall if he took any photos, and his body-worn camera died due to a faulty battery. In any event, McKernan was subsequently placed under arrest for assault. B. Proceedings. McKernan was charged by trial information with assault causing bodily injury on July 3. Trial was initially set for September 6. After multiple continuances—driven by five changes of defense counsel, the original trial judge’s sua sponte recusal following McKernan’s threatening comments toward court staff at a prior hearing, ongoing discovery review and 5 investigation, and scheduling conflicts—the trial date was continued to March 26, 2024. However, on March 12, McKernan again moved for new counsel and raised more defense issues, including renewed demands to take depositions of people not listed as witnesses and for subpoenas to access law enforcement officers’ personal phones. At a March 18 hearing on the motion, the court reset trial for May 7 and ordered McKernan to file a speedy-trial waiver no later than May 1 at 1:00 p.m. This date was the latest deadline possible that accommodated both counsels’ schedules while preserving a possible May 7 trial date if McKernan insisted on speedy trial. McKernan did not file the waiver until May 2 at 3:38 p.m., 26 hours and 38 minutes after the deadline. On May 5, two days before the May 7 jury trial, McKernan filed a ninth motion to continue. The motion represented that counsel had conferred with McKernan and he wished to waive speedy trial, explaining that “[t]he Court set a deadline to complete and file a one-year waiver of speedy trial. [McKernan] thought he had properly returned the waiver within the time allowed by the Court, but he had not succeeded.” The court denied the continuance on May 6, citing the missed waiver deadline. Trial proceeded on May 7. Before evidence was presented, McKernan renewed his motion to continue and personally told the court that he had signed the one-year speedy-trial waiver and believed he had timely emailed it back to counsel, claiming he had received it late at night but, being exhausted from physical work, did not realize his email had not gone through until it was too late. The court again denied the motion, noting the case had been pending for nearly eleven months and McKernan had been warned the court would not entertain a last-minute continuance if the speedy-trial waiver deadline was missed. 6  Trial proceeded, and both sides presented evidence over two days. On the morning of May 9 before closing arguments, the court held a jury- instruction conference. McKernan requested a spoliation instruction related to photographs of his chest, but the court denied the request, finding insufficient evidence that the photos ever existed or that the prosecution intentionally destroyed them. McKernan also objected to a duty-to-retreat instruction, arguing that calling someone a “fucking bitch” or “bitch” was protected speech. The court overruled the objection and gave the following instructions: INSTRUCTION NO. 19 If any of the following is true, the Defendant’s use of force was not justified: 1. The Defendant was not lawfully present in the place where he used force, he made no effort to retreat, and retreat was a reasonable alternative to using force; OR 2. The Defendant committed Disorderly Conduct in the place where he used force, he made no effort to retreat, and retreat was a reasonable alternative to using force. If the State has proved any of these beyond a reasonable doubt, the Defendant’s use of force was not justified. INSTRUCTION NO. 20 For purposes of Instruction No. 19, “Disorderly Conduct” occurs when an individual directs abusive epithets or makes any threatening gesture which the person knows or reasonably should know is likely to provoke a violent reaction by another. 7  INSTRUCTION NO. 21 If any of the following is true, the Defendant’s use of force was not justified: 1. The Defendant initially provoked the use of force against himself by his unlawful acts unless: [The patron] used force grossly disproportionate to the Defendant’s provocation, and it was so great the Defendant reasonably believed he was in imminent danger of death or injury. If the State has proved this beyond a reasonable doubt, the Defendant’s use of force was not justified. The jury returned a general guilty verdict against McKernan on May 9. On June 10, he was sentenced to two days in jail and a $430 fine with a fifteen percent surcharge for the offense. He appeals. II. Analysis. On appeal, McKernan argues the trial court erred in four ways: (A) by denying his final motion for a continuance, (B) by giving a duty-to-retreat instruction, (C) by refusing his requested spoliation instruction, and (D) by denying his request for an on-site jury view of the scene. The State resists. We address each argument in turn. A. Motion to Continue. McKernan first challenges the denial of his motion to continue. He asserts the trial court abused its discretion when it enforced a speedy trial waiver deadline set a week before trial, arguing that the lack of a continuance made it impossible to pursue core defense tools like depositions, subpoenas, or experts. He also argues the district court abused its discretion in denying a continuance because he did not meet trial counsel in person until the day of trial, making the refusal to allow additional 8 preparation time unreasonable and effectively shifting the necessary work to postconviction proceedings by inviting an ineffective-assistance claim. The standard of review for a continuance issue is for abuse of discretion. State v. Clark, 814 N.W.2d 551, 560 (Iowa 2012). “Continuances are discouraged[] and may be granted only upon a showing of good and compelling cause or when necessary to obtain substantial justice.” State v. Melk, 543 N.W.2d 297, 300 (Iowa Ct. App. 1995) (cleaned up). “The decision to grant or deny a motion for continuance rests in the sound discretion of the trial judge” and that decision “will not be disturbed on appeal unless an injustice has resulted.” State v. Artzer, 609 N.W.2d 526, 530 (Iowa 2000); see also State v. Grimme, 338 N.W.2d 142, 144 (Iowa 1983); State v. Berenger, 161 N.W.2d 798, 802 (Iowa 1968). We see no injustice to McKernan because the court had solid reasons to deny the continuance given the number of continuances already granted, and McKernan’s failure to waive speedy trial when offered an opportunity to move the trial date again. By the time the motion was filed, the case had already been continued repeatedly—eight times in total, most at McKernan’s request—and this final request came on the eve of trial. Iowa courts routinely uphold denials in exactly these circumstances: when a party seeks yet another delay after multiple continuances, especially where the reasons could have been raised earlier. Artzer, 609 N.W.2d at 531 (no abuse of discretion where defendant sought continuance shortly before trial after earlier delays); State v. Ware, 338 N.W.2d 707, 714 (Iowa 1983) (affirming denial where motion was filed less than a week before trial and circumstances were foreseeable); State v. Riser, No. 02-1933, 2003 WL 23005274, at *2 (Iowa Ct. App. Dec. 24, 2003) (continuance of trial date not justified when filed two days before trial but alleged evidence known to defense earlier); State v. Teeters, 487 9 N.W.2d 346, 348 (Iowa 1992) (noting a trial court’s sense that a defendant “wish[es] to delay” can support denial). And our courts have made clear that “continuances will not be granted for want of defense preparation in the absence of a showing of good excuse.” Van Hoff v. State, 447 N.W.2d 665, 669 (Iowa Ct. App. 1989). Here, McKernan makes little showing of good cause for yet another continuance, arguing only that denying the request left newly appointed trial counsel without enough time to finish investigation and discovery, and that this set the case up for later postconviction claims. But the substance of his argument is the same as what he raised before (through counsel and on his own)—he wanted more depositions, more subpoenas, and expert help, and he wanted more time to pursue them despite no evidence that he had made any meaningful steps to do so since the court’s last continuance.1 Given McKernan’s lack of action, any alleged detriment to McKernan from the denial of his continuance motion was not unjust. Finally, both McKernan and the State share an interest in a “speedy and fair trial.” Artzer, 609 N.W.2d at 530; see also Iowa R. Crim. P. 2.33(2) 1 McKernan said he needed a continuance to do more discovery—get photos, take depositions (the mayor, police chief, Salvation Army director, and the officer who went to the trailer park), and measure distances in the pantry. But some of these witnesses would not have relevant information, and the existing exhibits and testimony covered the layout of the site and what conversation he had with the officer. Likewise, his four prior appointed lawyers had plenty of time to pursue an expert and more investigation but chose not to. In any event, the things McKernan says he was prevented from doing—deciding what depositions to take, what subpoenas to issue, and whether to hire experts—are routine trial-preparation and strategy decisions. Those calls generally belong to defense counsel, not the defendant. See Iowa Ct. R. 32:1.2(a); McCoy v. Louisiana, 584 U.S. 414, 422 (2018). If McKernan believed counsel was mishandling decisions that mattered to his defense, his remedy was to ask the court to appoint new counsel and then ask for a good-cause continuance, not to just delay trial. 10 (requiring criminal prosecutions to be concluded as early as possible consistent with a fair trial for both parties). And the court has broad discretion to set pretrial deadlines. See Iowa R. Crim. P. 2.11(6). McKernan’s claim that he missed the court’s deadline to file a speedy trial motion because he was too tired or fell asleep is not a valid excuse. The court’s “hard deadline” requiring the motion to be filed before the waiver’s one-year period expired and denying a continuance was reasonable. Overall, the trial court acted within its discretion in denying this eleventh-hour motion to continue. B. “Duty to Retreat” Instruction. Next, we address the jury instruction on McKernan’s justification defense. Justification is a statutory defense that permits a defendant to use reasonable force to defend himself or herself from an imminent use of unlawful force. State v. Stallings, 541 N.W.2d 855, 857 (Iowa 1995). Before 2017, Iowa law generally expected a person to first avoid using force if a safe alternative like retreat was available. State v. Lorenzo Baltazar, 935 N.W.2d 862, 869–70 (Iowa 2019). But Iowa’s stand- your-ground statute, Iowa Code section 704.1(3) (2023), now provides that a person who is lawfully present and not engaged in unlawful activity has no duty to retreat before using reasonable force. McKernan argues the instruction was wrong because he had a right to stand his ground when the patron and the other women confronted him. He says the retreat instruction improperly told jurors his force against the patron was unjustified if his disorderly conduct meant he was engaged in unlawful activity, thus giving him a general duty to retreat before using force. He contends there was no disorderly conduct because his remarks were protected speech, not “fighting words,” and he didn’t intend to provoke imminent lawless action. He adds that even if his remarks rose to disorderly 11 conduct, his use of the objectionable language wasn’t closely connected to his later use of force. The State contends that there was sufficient evidence to support the instruction because McKernan had to retreat if reasonably able before using force “if he was committing disorderly conduct” and the First Amendment does not protect the speech McKernan used. The State also responds that any error was harmless because the jury had other independent reasons to reject justification, and the record supports at least one of them. We address each point below. The parties agreed that our review of challenges to given jury instructions is for correction of errors at law. State v. Thompson, 35 N.W.3d 569, 574 (Iowa 2026). 1. Abusive epithets or protected speech. At issue is the interplay between defining disorderly conduct for the use of abusive language and the stand- your-ground defense. Iowa Code section 723.4(3) makes it disorderly conduct for a person to “[d]irect[] abusive epithets or make[] any threatening gesture which the person knows or reasonably should know is likely to provoke a violent reaction by another.” Arguably, Iowa Code section 723.4 regulates only language unprotected by the First Amendment—true threats or fighting words—because it prohibits only those “abusive epithets . . . likely to provoke a violent reaction by another.” See Gooding v. Wilson, 405 U.S. 518, 524–25 (1972); Cohen v. California, 403 U.S. 15, 20 (1971); Texas v. Johnson, 491 U.S. 397, 409 (1989). McKernan argues the instruction should not have been given because his remarks were not “fighting words.” He says he was not trying to start a fight, and he meant only to complain, albeit crudely, about how he was being treated. Thus, the question on appeal becomes whether the record contained substantial evidence that his words, 12 taken in full context, fell within the narrow category of unprotected speech the statute reaches such that a reasonable jury could find disorderly conduct. First, the State presented evidence McKernan threatened to “choke the life out of [the receptionist].” True threats are outside the bounds of constitutional protection and are never free from criminal prosecution. Counterman v. Colorado, 600 U.S. 66, 72 (2023); State v. Milner, 571 N.W.2d 7, 13–14 (Iowa 1997). That kind of language is exactly the sort of abusive, inflammatory remark the disorderly-conduct statute is aimed at, so a jury instruction addressing disorderly conduct would be entirely proper. Although McKernan argues only one State witness—the first manager— testified that he made that statement, and she arrived partway through the encounter, his assertion was a factor the jury could consider. Because the jury returned a general verdict, the record does not show whether the jury found a true threat, relied on other abusive language, or made its decision on some other theory of unlawful presence. For that reason, we also address McKernan’s argument that his remaining statements were not “fighting words.” Unprotected by the First Amendment, “ʻ[f ]ighting words’ are those personally abusive epithets which ʻby their very utterance inflict injury or tend to incite an immediate breach of the peace.’” State v. Fratzke, 446 N.W.2d 781, 784 (Iowa 1989) (quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942)). “Fighting words” is a narrow class of words limited only to “direct personal insult[s]” clearly “directed to the person of the hearer” who is “actually or likely to be present.” Cohen, 404 U.S. at 20 (quoting Cantwell v. Connecticut, 310 U.S. 296, 309 (1940)); see also Johnson, 491 U.S. at 409. “[S]o long as a lawful purpose for the communication exists, no language short of ʻfighting words’ may serve to defeat or criminalize the 13 sender’s message.” Fratzke, 446 N.W.2d at 785. Mere offensive, profane, or even hateful language does not automatically constitute fighting words. But if the language “is directed to inciting or producing imminent lawless action,” it is unprotected. Id. at 784 (quoting Johnson, 491 U.S. at 409). We apply an objective, context-driven inquiry and ask how a reasonable person would understand the words in the setting in which they were delivered and how that person would react. Id. at 784–85; see also Milner, 571 N.W.2d at 14 (applying an objective standard to true threats). Even though Iowa cases outside the “true threat” context are limited, they point to several common-sense factors: whether it was a heated, face-to-face confrontation, see Fratzke, 446 N.W.2d at 785; whether the parties had a bad history, see State v. Teslik, No. 24-1045, 2025 WL 3654021, at *5 (Iowa Ct. App. Dec. 17, 2025); whether the speaker was loud or especially aggressive, particularly with repeated profanity, see id.; whether the remarks were personal attacks on someone’s character, see Tim O’Neill Chevrolet, Inc. v. Forristall, 551 N.W.2d 611, 617 (Iowa 1996); and whether the language was so extreme that bystanders stepped in to intervene, see Teslik, 2025 WL 3654021, at *5. Those same factors exist here and support a finding that McKernan’s language amounted to abusive epithets. The evidence shows repeated, targeted epithets directed at a specific employee during a heated, face-to-face confrontation in a confined environment. Although McKernan denies threatening to “choke the life out of [the receptionist],” he concedes he repeatedly called the receptionist a “fucking bitch” and called her a “cunt” at least once. These words were meant to personally demean the receptionist because McKernan was “determined to correct her” for what he perceived to be her “hating on [him] and sneering on [him], changing up the rules.” 14 The receptionist testified she was shaken by the confrontation. The disturbance drew three employees from the back of the building, who instructed McKernan to leave roughly six to twelve times. And bystanders reacted strongly to this language: the victim testified she heard repeated use of the “b-word” and that when she heard the “c-word,” “everyone kind of snapped” and intervened. McKernan’s own testimony underscores how extreme that word is even in this day and age—he avoided saying “cunt” in court while freely repeating “fucking bitch.” McKernan’s reliance on State v. Baccala, 163 A.3d 1 (Conn. 2017), is misplaced. In that case, the defendant called a store manager a “fat ugly bitch,” “cunt,” “fuck you, you’re not a manager,” and gesticulated with her cane. Id. at 4. But the Connecticut court’s analysis on the totality of circumstances turned heavily on who the target was. And here, unlike the target in Baccala, the receptionist wasn’t a store manager with the power to remove a disruptive customer or credibly threaten arrest. She was a front- desk employee taking the brunt of a personal, face-to-face tirade. Additionally, unlike McKernan, the defendant in that case left the store when asked. McKernan, by contrast, refused to deescalate or end the confrontation at any point. If persuasive authority is considered, State v. Allcock, 857 A.2d 287 (Vt. 2004), is the closer analogue. There, the Vermont Supreme Court upheld a disorderly conduct conviction under the “fighting words” doctrine after the defendant went into a food pantry, targeted one employee, accused her of having “crabs” and sleeping with the defendant’s ex-husband, and then launched repeated, graphic insults at the employee by calling the employee a “bitch,” telling her to “go fuck yourself,” and cursing out the pantry staff generally. Id. at 288. The outburst escalated when she threw 15 books and a box of bread, told the employee to “stick it up your ass,” and dared staff to “call the fucking police.” Id. On appeal, the defendant argued, as McKernan does here, that the words couldn’t be “fighting words” because the target never testified she felt threatened or ready to fight. Id. at 289. The court rejected that approach, reiterating that the question is not whether this particular employee felt like fighting, but whether an average person in that setting could reasonably be provoked into an immediate violent reaction. Id. Given the targeted, extremely vulgar personal attacks and the disruptive, aggressive behavior that upset other patrons at the food pantry, the evidence supported the finding that the words were likely to provoke a breach of the peace.2 Id. 2 Other courts have likewise found “fighting words” on comparable facts to the case here, especially when that language is repeatedly uttered, made in the presence of bystanders, accompanied by other aggressive behavior, or extremely confrontational towards a single individual. See, e.g., City of Landrum v. Sarrat, 572 S.E.2d 476 (S.C. Ct. App. 2002) (yelling profanities between calling a man’s mother a “bitch” and calling the man a crackhead to their faces were unprotected fighting words); Tucker v. State, 504 S.E.2d 250 (Ga. Ct. App. 1998) (making highly sexualized comments to female bartender and shouting, “these f---ing c--nts in here, I don’t care what they think, I can say whatever I want” “f---in,” “f--- you,” were unprotected fighting words); City of Little Falls v. Witucki, 295 N.W.2d 243 (Minn. 1980) (warning “I let you slip once too many times, I’m not going to let you slip again” before telling a bartender to “get fucked” and calling her a “black-haired witch,” a “cocksucker,” and a “son-of-a-bitch” when told to take a cat outside were unprotected fighting words); State v. Baertsch, 571 P.3d 659 (Mont. 2025) (man calling his girlfriend a “stupid bitch” and “dumb cunt” constituted profane or abusive language for purposes of the disorderly conduct statute); City of Billings v. Oltrogge, No. 13-0517, 2014 WL 1494528 (Mont. Apr. 14, 2014) (flipping off a child, saying “fuck you,” and calling the child an ethnic slur were inherently inflammatory acts and fell within the fighting words doctrine). 16  In any event, both Baccala and Allcock apply an objective standard to their analysis of the relevant language and the context under which it occurred. Likewise, the question in this case is not whether the receptionist was personally prone to react with violence or whether McKernan subjectively meant only to “make a point,” as McKernan urges us to find. The inquiry is instead how a reasonable person would understand McKernan’s words and be likely to react. McKernan’s claimed lack of intent to provoke a breach of the peace is immaterial; what matters is that others found his language threatening and alarming. See State v. Cramer, No. 09- 0957, 2010 WL 2925127, at *3 (Iowa Ct. App. July 28, 2010) (“Even if the defendant had a legitimate purpose in writing to [the target] to express his feelings, this right does not include expressing his feelings in a manner intended to threaten, intimidate, or cause alarm.”). Using an objective standard, McKernan’s statements were not stray, one-off epithets intended for emphasis or to merely make a point. While modern society tolerates much more profanity and objectionable language than in the days of Chaplinsky, the problem with McKernan’s language lies in the fact that his ongoing tirade against the receptionist was so severe that individuals in other parts of the building heard it and felt the need to intervene. Similarly, McKernan refused to disengage from the encounter at any point, greatly increasing the likelihood that he would provoke a violent reaction by another. And if McKernan’s recounting of events is correct, his language prompted at least one individual into attacking him, which itself would be inciting a breach of the peace sufficient to allow a jury to infer disorderly conduct. 17  Our review of the law and record supports giving the instruction and letting the jury decide whether McKernan committed disorderly conduct by uttering “abusive epithets.” 2. “Germane” to the subsequent use of force. McKernan next argues that even if his words were not protected speech, his use of this language was not “germane”—that is, closely connected—to his later use of force against the patron, relying on the Iowa Supreme Court’s decision in Lorenzo Baltazar. There, the court held that the defendant’s unlawful possession of a handgun constituted “illegal activity” that defeated Iowa’s new stand-your-ground law where the handgun was the murder weapon, but the court declined to decide whether the statute always requires the illegal activity to be connected to the resulting use of force to generate a duty to retreat. Lorenzo Baltazar, 935 N.W.2d at 871. McKernan argues that it does. On that view, he contends the district court should not have given a duty-to-retreat instruction in this case because a person committing disorderly conduct by using “fighting words” would not reasonably anticipate the kind of attack he claims the victim initiated, and thus any ensuing self-defense would be unrelated to the underlying disorderly conduct. We disagree. First, the stand-your-ground statute, Iowa Code section 704.1(3), contains no “germaneness” requirement. See Iowa Code § 704.1(3) (“A person who is not engaged in illegal activity has no duty to retreat from any place where the person is lawfully present before using force as specified in this chapter.”). Its plain language requires retreat whenever the defendant is engaged in illegal activity, which arguably encompasses all illegal activity and not just illegal activity connected to the use of force. Second, even assuming arguendo that a germaneness nexus is required, it is satisfied here. The record shows that the confrontation culminating in the shove flowed directly 18 from McKernan’s verbal barrage. On this sequence, his disorderly conduct was both the but-for and proximate cause of the resulting physical encounter. Third, fighting words, by their very nature, are an “invitation to exchange fisticuffs.” Johnson, 491 U.S. at 409. Taking McKernan’s argument to its logical end would produce an incongruous result: a speaker could provoke a volatile confrontation through unprotected fighting words and still claim no duty to retreat on the theory that the ensuing violence was an unforeseeable escalation from the confrontation his words ignited. Again, our review of the law and record supports giving the jury a duty- to-retreat instruction that included a disorderly conduct theory. 3. Sufficient evidence of other types of unlawful presence. Finally, we turn to one final point made by the State. The State argues that we must affirm the conviction because the jury could have found McKernan guilty on any one of the instructed theories. We agree. This jury returned a general verdict, which is a verdict where the jury simply declares the prevailing party without providing a factual basis for its decision. Iowa Code section 814.28 provides that when the State submits multiple or alternative theories to prove an offense and the jury returns a general verdict, an appellate court may not reverse the verdict based on a defective or insufficient theory so long as at least one theory described in the jury instructions is supported by sufficient evidence. The jury in this case was instructed on multiple theories for finding McKernan’s assault was not justified, including unlawful presence with an ability to retreat, engagement in disorderly conduct with an ability to retreat, and lack of a reasonable belief that force was necessary. The jury returned a general guilty verdict without specifying which theory it accepted, and the record contains sufficient evidence to support at least one of the submitted theories. For example, the 19 jury had enough evidence to find McKernan could not reasonably believe force was necessary: every witness aside from McKernan himself said the victim did not touch the defendant before he pushed her. And even ignoring the weight of the witnesses’ testimony, the jury just as readily could have found that he was trespassing at the time of the assault: the record is replete with instances where McKernan was told to leave the Salvation Army but chose to remain unlawfully present. Thus, notwithstanding our finding on the disorderly conduct instruction, we would still be required to affirm the trial court on this matter. C. Spoliation Instruction. McKernan next argues that the trial court erred when it declined to instruct the jury on spoliation of evidence. He contends that the trial court made an improper threshold determination on whether a jury could find that evidence had been destroyed. “We generally review a district court’s refusal to give a requested jury instruction for errors at law; however, if the jury instruction is not required but discretionary, we review for an abuse of discretion.” State v. Brown, 32 N.W.3d 774, 777 (Iowa 2026) (cleaned up). Spoliation instructions, by virtue of their nature as a form of discovery sanction, are discretionary and review is therefore for abuse of discretion. Alcala v. Marriott Int’l, Inc., 880 N.W.2d 699, 707 (Iowa 2016). Thus, the trial court’s refusal to give a spoliation instruction will be reversed only if its decision was unreasonable or untenable. State v. Wilson, 878 N.W.2d 203, 210–11 (Iowa 2016). By its nature, spoliation is the intentional destruction of evidence. State v. Langlet, 283 N.W.2d 330, 333 (Iowa 1979). Any inference of spoliation “should be utilized prudently and sparingly.” Phillips v. Covenant Clinic, 625 N.W.2d 714, 720 (Iowa 2001). As a result, a trial court will give a spoliation instruction only once a moving party shows by substantial evidence 20 that the “(1) evidence exists, (2) it is in the possession or under the control of the State, (3) it would have been admissible at trial, and (4) the State intentionally destroyed the evidence.” State v. Hartsfield, 681 N.W.2d 626, 631 (Iowa 2004). We find no abuse of discretion by the trial court in this case when it declined to give a spoliation instruction. We need look no further than to question whether this evidence existed in the first place. As stated, it is the burden of the moving party to generate a jury question by showing that the evidence existed by substantial evidence. See id. Substantial evidence means evidence sufficient to convince a reasonable mind to accept it as adequate to reach a conclusion. State v. Davis, 988 N.W.2d 458, 466 (Iowa Ct. App. 2022). So to justify a spoliation instruction, McKernan needed to point to record evidence from which a reasonable juror could conclude that photos were actually taken and existed as real items that could be preserved and later destroyed. But the record doesn’t get there. All that exists in this record is testimony about what an officer said he intended to do, generalized “best practices” about what officers often do in other investigations, and McKernan’s disputed account that photos were taken. That mix may raise an inference, but it does not amount to substantial evidence that the photos were actually created. Given that gap, the court reasonably concluded that a spoliation instruction would invite the jur