Full Opinion

IN THE COURT OF APPEALS OF IOWA _______________ No. 25-1143 Filed November 4, 2026 _______________ State of Iowa, Plaintiff–Appellee, v. Brandon James Kasemeier, Defendant–Appellant. _______________ Appeal from the Iowa District Court for Allamakee County, The Honorable Alan Heavens, Judge. _______________ AFFIRMED _______________ Martha J. Lucey, State Appellate Defender, and Rachel C. Regenold (argued), Assistant Appellate Defender, attorneys for appellant. Brenna Bird, Attorney General, and Adam Kenworthy (argued), Assistant Attorney General, attorneys for appellee. _______________ Heard at oral argument by Badding, P.J., and Chicchelly and Buller, JJ. Opinion by Chicchelly, J. 1 CHICCHELLY, Judge. Brandon Kasemeier appeals his conviction for first-degree murder. Kasemeier claims the district court erred by refusing to instruct the jury on voluntary manslaughter and by admitting other bad acts evidence. After reviewing Kasemeier’s arguments, we affirm his conviction. BACKGROUND FACTS AND PROCEEDINGS Brandon and Jami Kasemeier had a tumultuous marriage. Testimony was consistent at trial that the two had a history of verbal arguments and physical altercations. The two had broken up and got back together many times over the course of their marriage. In December 2023, Kasemeier assaulted their twenty-two-year-old son, Bradley. Jami and Bradley moved out of the family home that day, taking nothing with them but clothes. Following the assault, Jami communicated to Kasemeier and others that she planned to get a divorce and began to raise money to do so. Jami and Bradley later returned to the family home with a police officer to collect their things. While there, Jami asked Kasemeier if “it” was there. Jami was referring to a handgun that had belonged to her grandfather. 1 Kasemeier lied and said that it was not there because it had been sold. Jami was concerned about what Kasemeier would do with the gun. In the month that followed, Jami further communicated her desire to get a divorce and pawned property to raise money to hire an attorney. 1 Jami referred to the handgun as “it” because she asked the question in front of the police officer. Because Kasemeier was a convicted felon, it was illegal for him to possess a gun. 2 Meanwhile, Kasemeier, a self-admitted methamphetamine addict, engaged in conduct that caused Jami to fear for her life. For example, one night Jami was on a video call with Kasemeier. During the call, Kasemeier brandished the handgun and ammunition while threatening himself.2 On January 21, 2024, Jami was at the family home, having spent the weekend there after falling ill. That morning, Jami’s sister, Sarah, had called her to check in. Jami had her phone on speakerphone. Kasemeier, high on methamphetamine and gummy mushrooms, interrupted the call, believing they were “talking shit” about him. Jami tried to calm Kasemeier down and said they were not talking about him. Sarah then heard Kasemeier take the phone away from Jami as Jami screamed “no, Brandon, no.” Sarah described hearing noises as if someone was being hit before the phone call disconnected. Sarah tried to call Jami back to no avail. Roughly two minutes later, Kasemeier called Sarah from Jami’s phone. Sarah asked to talk to Jami, but Kasemeier said that she was fine and that he would never hurt her. However, this was not true, as Kasemeier had shot Jami in the head two times between the phone calls. Kasemeier contends that during the argument, Jami provoked him and that is why he killed her.3 Kasemeier was arrested and charged with first-degree murder. Trial was held over five days in May 2025. The jury returned a guilty verdict of first-degree murder. The district court sentenced Kasemeier to life in prison without the possibility of parole. Kasemeier appeals. 2 Kasemeier had a friend get him ammunition for the gun after Jami moved out of the family home. Further factual details will be provided below, as Jami’s alleged provocation is 3 why Kasemeier argues the jury should have been instructed on voluntary manslaughter. 3 DISCUSSION I. Voluntary Manslaughter Instruction Kasemeier first argues that the district court erred by refusing to instruct the jury on voluntary manslaughter. At trial, Kasemeier requested the jury instruction, which the State resisted. The district court denied Kasemeier’s request. Kasemeier then objected to the final jury instructions. Thus, any error is preserved. See State v. Davis, 951 N.W.2d 8, 16 (Iowa 2020). “We review challenges to jury instructions for correction of errors at law.” State v. Bynum, 937 N.W.2d 319, 324 (Iowa 2020) (citation omitted). “To warrant a voluntary-manslaughter submission, the defendant must set forth enough evidence to support voluntary manslaughter’s legal and factual test.” State v. Love, No. 23-1836, 2025 WL 1177455, at *12 (Iowa Ct. App. Apr. 23, 2025); see also State v. Ware, 338 N.W.2d 707, 714 (Iowa 1983) (“Lesser offenses must be submitted to the jury as included within the charged offense if but only if they meet both the appropriate legal and factual tests.”). The legal test was met, as “[v]oluntary manslaughter is an included offense under an indictment for murder in the first or second degree.” Iowa Code § 707.4(3) (2024). But whether the factual test was met is disputed. “Determining whether a lesser included offense meets the factual test involves ‘an ad hoc determination whether there is a factual basis in the record for submitting the included offense to the jury.’” State v. Thompson, 836 N.W.2d 470, 477 (Iowa 2013) (quoting State v. Sangster, 299 N.W.2d 661, 663 (Iowa 1980)). “A factual basis exists if the defendant has produced ‘substantial evidence of each necessary element of the lesser-included offense[].’” Id. (alteration in original) (quoting State v. Royer, 436 4 N.W.2d 637, 643 (Iowa 1989)). “Substantial evidence means that which a reasonable mind would accept as adequate to reach a conclusion.”4 State v. LeGrand, 442 N.W.2d 614, 615 (Iowa Ct. App. 1989). Under Iowa law: A person commits voluntary manslaughter when that person causes the death of another person, under circumstances which would otherwise be murder, if the person causing the death acts solely as the result of sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a person and there is not an interval between the provocation and the killing in which a person of ordinary reason and temperament would regain control and suppress the impulse to kill. 4 In his brief, Kasemeier argues this is the same requirement for determining sufficiency of the evidence claims in which the court views the evidence in the light most favorable to the State. See State v. Canady, 4 N.W.3d 661, 673 (Iowa 2024). Thus, Kasemeier urges us to view the evidence in the light most favorable to him in determining whether substantial evidence exists to give a voluntary manslaughter instruction. We refuse to do so. Kasemeier conflates two separate tests into one. Existing precedent makes clear that the test is one of substantial evidence. Moreover, our supreme court has rejected a similar argument. See State v. Reese, 259 N.W.2d 771, 778 (Iowa 1977) (“[W]e must determine whether there is sufficient evidence to establish a factual basis in the record for submitting the included offense to the jury. It is the State’s contention we must view the evidence in a light most favorable to the State . . . . The State refers to a case in which we said, in reviewing guilty convictions, that the court will review the evidence in a light most favorable to the State. Such principle is not applicable to the issue under consideration presently, that is to say, whether an instruction should have been given by the trial court where there is sufficient evidence to support the verdict on a lesser included offense. . . . In applying such test, we must determine whether there was sufficient evidence in the record . . .” (cleaned up)). Adopting Kasemeier’s argument would require us to alter supreme court precedent, which we cannot and will not do. See State v. Beck, 854 N.W.2d 56, 64 (Iowa Ct. App. 2014) (“We are not at liberty to overrule controlling supreme court precedent.”). 5 Iowa Code § 707.4(1) (emphasis added). In considering the factual requirements: Voluntary manslaughter includes one subjective and two objective parts. The subjective part is that the defendant must act solely as a result of sudden, violent, and irresistible passion. The first objective part requires that the defendant’s sudden, violent, and irresistible passion must result from serious provocation sufficient to excite such passion in a reasonable person. The second objective part requires that there is not an interval between the provocation and the killing in which a person of ordinary reason and temperament would regain his or her control and suppress the impulse to kill. Love, 2025 WL 1177455, at *12 (citation omitted). Kasemeier asserts that the two objective elements are at issue because the district court ruled there was not sufficient provocation and that there was a cooling off period. “Provocation is the linchpin of the crime of voluntary manslaughter.” State v. Ambrose, 861 N.W.2d 550, 558 (Iowa 2015). Kasemeier concedes that words alone are not sufficient to establish the factual basis for serious provocation. See Thompson, 836 N.W.2d at 478. However, Kasemeier argues that offensive words coupled with an assault by the victim is sufficient provocation. According to Kasemeier’s testimony, upon confronting Jami about what she was talking to her sister about on the phone, she shoved him and he shoved her back. Then Jami struck him on his arm and side, so he backhanded her. After a struggle for the phone, Kasemeier got it and began pacing back and forth. It was at that point Kasemeier claimed Jami called 6 him a homophobic slur, causing him to see red and go for the gun. 5 Kasemeier retrieved the gun from the top drawer of the dresser and shot Jami twice. Jami’s actions of shoving Kasemeier, striking him, and then calling him a slur, are not sufficient evidence of serious provocation. See id. (“We agree with the district court that [the victim’s] actions in slapping [the defendant] and insulting him with obscene gestures fell short of the objectively serious provocation required to submit a voluntary manslaughter instruction.”); State v. Self, No. 24-1727, 2026 WL 43636, at *5 (Iowa Ct. App. Jan. 7, 2026) (“Even if the district court believed [the defendant’s] testimony that [the victim] punched him, that action fell short of the serious provocation required for reducing the offense to voluntary manslaughter.”). Furthermore, “because [Kasemeier] used a gun, ‘the provocation must be great, indeed, to lower the offense from murder to manslaughter.’” State v. Seley, No. 22-0419, 2023 WL 2148800, at *6 (Iowa Ct. App. Feb. 22, 2023) (quoting State v. Holder, 20 N.W.2d 909, 914 (Iowa 1945)). Based on Kasemeier’s testimony, the physical altercation ended once he got the phone. What’s more, on cross-examination, Kasemeier testified he was in front of the dresser when he went to grab the gun while Jami remained on the bed. And it was only after Jami called Kasemeier a homophobic slur that he got the gun from the dresser drawer and shot her. Based on the record, there was no ongoing physical altercation, and it was Jami’s act of calling Kasemeier a homophobic slur that led him to shoot her. 5 Kasemeier testified at trial that in January 2024, he revealed to Jami that a relative’s boyfriend had sexually abused him when he was a child. Kasemeier further testified that this was something he wanted Jami to keep private and believed that he heard Jami telling her sister about the sexual abuse during the phone call. Thus, Kasemeier stated that being called the homophobic slur was a “major trigger” for him. 7 But it is well-established that words alone are not sufficient to establish serious provocation. See, e.g., Thompson, 836 N.W.2d at 478; State v. Rutledge, 47 N.W.2d 251, 259 (Iowa 1951); State v. Hockett, 30 N.W. 742, 748–49 (Iowa 1886). Thus, there was no serious provocation, and therefore there was not a sufficient factual basis in the record to submit a voluntary manslaughter instruction. And because we find there was insufficient evidence of a serious provocation, we need not address Kasemeier’s argument that there was not an adequate cooling off period. See Thompson, 836 N.W.2d at 478 (“[G]iven our holding that provocation was insufficient, we need not decide whether [there] was a sufficient interval for a ‘person of ordinary reason and temperament [to] regain his or her control and suppress the impulse to kill.” (third alteration in original) (quoting State v. Inger, 292 N.W.2d 119, 122 (Iowa 1980))). Lastly, we note that even if the district court had erred in refusing to give the jury instruction, Kasemeier was not prejudiced. The jury was instructed on both first and second-degree murder and convicted Kasemeier of first-degree murder. “Where both first and second-degree murder verdicts are submitted and a first-degree murder conviction is returned there is no prejudice for failure to instruct on manslaughter.” State v. Nowlin, 244 N.W.2d 591, 596 (Iowa 1976); see also State v. Coffee, 182 N.W.2d 390, 394 (Iowa 1970) (“We have held several times that when one is convicted of a higher degree of crime, an error in instructing on the lower is not prejudicial error.”). Moreover, by convicting Kasemeier of first-degree murder, the jury found that he acted with malice, which is a mental state incompatible with the heat of passion required for a voluntary manslaughter conviction. See State v. Tolbert, 31 N.W.3d 746, 751 (Iowa 2026) (“[W]e have long settled that acting in the ‘heat of passion’ involves a temporary loss of control sparked by a serious provocation, which is a mental state incompatible with the 8 deliberation that leads to the ‘fixed purpose’ required for malice.”); see also id. at 753–54 (approving the use of acquittal-first jury instructions which direct “the jury not to consider a lesser included offense unless it first finds the defendant not guilty of the greater offense”). II. Other Bad Acts Evidence Kasemeier next argues that the district court erred in admitting other bad acts evidence. “We review rulings on the admission of evidence of prior bad acts for an abuse of discretion.” State v. Goodson, 958 N.W.2d 791, 798 (Iowa 2021) (quoting State v. Reyes, 744 N.W.2d 95, 99 (Iowa 2008)). “We reverse a district court’s admission as an abuse of discretion if the grounds or reasoning for admission were ‘clearly untenable or clearly unreasonable.’” Id. (quoting State v. Plain, 898 N.W.2d 801, 811 (Iowa 2017)). However, Reversal is not required for the erroneous admission of evidence unless prejudice results. In determining the prejudicial effect of evidence, the court reviews the other evidence presented and weighs it against any prejudicial effect. To establish prejudice, the defendant must show a reasonable probability that but for the error the outcome of the trial would have been different. . . . Where the other evidence overwhelmingly establishes the defendant’s guilt, we have applied the harmless error doctrine. State v. Rodriguez, 636 N.W.2d 234, 244 (Iowa 2001) (cleaned up). Before trial, Kasemeier filed a motion in limine, seeking among other things, to exclude evidence of prior assaultive incidents between himself and Jami. Kasemeier also sought to exclude evidence he assaulted Bradley. At trial, Kasemeier objected to three of the State’s exhibits. The first exhibit was the bodycam footage of the police officer who was present when 9 Jami and Bradley went to the family home to collect their belongings. Kasemeier objected to the exhibit, claiming that it was unfairly prejudicial because it showed that he was not being nice to and belittling Jami while she was trying to move items out of the home. Kasemeier’s objections to the other two exhibits relate to the aftermath of the video call with Jami, in which he threatened self-harm with the gun. One of the exhibits was the call Kasemeier made to 911 immediately after ending the call with Jami, in which he told the 911 operator that Jami would be calling to falsely report he was suicidal and had a gun. The other exhibit was bodycam footage from a police officer who called to check in on Kasemeier due to the incident. At trial, Kasemeier argued the two exhibits were unfairly prejudicial because they again showed he was “not a very nice guy.” Kasemeier further contends on appeal the exhibits could have been limited to references about the gun. On appeal, the State raises problems with error preservation. However, we choose to bypass any problems with error preservation. See State v. Taylor, 596 N.W.2d 55, 56 (Iowa 1999). We also assume without deciding that the evidence was erroneously admitted to reach the question of whether the admission of the evidence was harmless. See Rodriguez, 636 N.W.2d at 244 (“We will not engage in an analysis of the relevancy of this evidence nor will we review the trial court’s balancing of the probative value of the evidence against its prejudicial effect. We do not do so because we think that even if the evidence was improperly admitted, such admission was harmless error.”). Based on our review of the record, any error in admitting the evidence was harmless. Even in the absence of the other bad acts evidence, there was overwhelming evidence of Kasemeier’s guilt. At trial, the State offered evidence of Kasemeier’s motive, as he testified he was upset when Jami left 10 him. Furthermore, Kasemeier testified that he lied about having the gun, how he had a friend get him ammunition for the gun, and that he practiced shooting the gun for the first time. This showed the jury that he took affirmative steps so that he could shoot the gun after Jami moved out of the family home. Most damningly, Kasemeier admitted to backhanding Jami and shooting her. And on cross-examination, he admitted that to shoot the gun, he had to pull the hammer back, point the gun at Jami, and pull the trigger. Moreover, the physical evidence showed that in addition to the gunshots, Jami was severely beaten. The jury heard testimony from the medical examiner about the severity of Jami’s injuries. And after killing Jami, Kasemeier fled the scene and was later arrested out of state. While fleeing, he made stops to withdraw cash from ATMs and bought a new cell phone. See State v. Mong, 988 N.W.2d 305, 314 (Iowa 2023) (reaffirming that evidence of flight may be used as evidence of consciousness of guilt). For these reasons, the admission of the other bad acts evidence, even if erroneous, was harmless. CONCLUSION We hold that because there was no serious provocation, the district court did not err in denying Kasemeier’s request to instruct the jury on voluntary manslaughter. Additionally, assuming without deciding that the admission of other bad acts evidence was erroneous, we hold that the admission amounts to harmless error. Accordingly, we affirm Kasemeier’s conviction. AFFIRMED. 11