                    IN THE COURT OF APPEALS OF IOWA

                                  No. 14-0970
                            Filed December 9, 2015

ARON MICHAEL MOSS,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________

      Appeal from the Iowa District Court for Boone County, Timothy J. Finn,

Judge.



      An applicant appeals the district court’s denial of his application for

postconviction relief. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Shellie L. Knipfer, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Kevin Cmelik and Kelli Huser,

Assistant Attorneys General, for appellee.



      Considered by Vogel, P.J., and Potterfield and Mullins, JJ. Danilson, C.J.,

takes no part.
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MULLINS, Judge.

       Aron Michael Moss was convicted of second-degree murder for the death

of Shane Hill.    The facts of the crime and the underlying proceedings are

appropriately detailed in our opinion in Moss’s direct appeal and need not be

repeated here. See State v. Moss, No. 08-1224, 2009 WL 3381053, at *1, *5-6

(Iowa Ct. App. Oct. 21, 2009). Following our decision, Moss filed an application

for postconviction relief (PCR) asserting eighteen claims of error. The district

court denied his application, and Moss appeals claiming his appellate counsel

and postconviction counsel were ineffective (1) for not challenging the trial court’s

refusal to admit impeachment testimony against an accomplice and (2) for not

challenging the court’s failure to provide the jury more instruction in response to

the jury’s questions regarding the definition of aiding and abetting.

       Daniel Blair was first convicted of first-degree murder for the killing of

Shane Hill—the husband of Blair’s lover, Jessica Hill.        Blair then testified at

Moss’s trial that it was Moss who pulled the trigger killing Shane Hill. In this PCR

appeal, Moss claims the trial court should have admitted testimony from Lisa

Lewis as impeachment evidence against Blair. Lewis would have testified Blair

told her that he helped aim the gun for Moss, who pulled the trigger. Moss

claims the trial court should have permitted this testimony as it impeached Blair’s

testimony and both appellate counsel and PCR counsel should have raised the

issue. Because, in his opinion, the case hinged on whether the jury believed him

or Blair, Moss claims he was prejudiced by counsel’s errors.
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       The trial court did permit the testimony of two other witnesses for

impeachment purposes, each of whom testified Blair admitted he was the one

who shot Shane Hill.       Unlike these other two witnesses, the district court

excluded Lewis’s testimony on the basis it was not materially different from

Blair’s testimony and was irrelevant.      Lewis’s testimony was consistent with

Blair’s testimony with respect to who pulled the trigger—Moss—but varied from

Blair’s testimony in that Lewis would have testified Blair told her he helped aim

the gun for Moss. This was inconsistent with Blair’s testimony that he was in

another room when Moss fired the gun. The district court determined the issue

of what room Blair was in when the gun was fired was not material to the case

and Lewis’s testimony of who fired the gun was not inconsistent with Blair’s

testimony. Therefore, the court ruled Lewis’s testimony was not admissible for

impeachment purposes.

       Moss claims his counsel in the direct appeal was ineffective for not raising

this issue and claims his PCR counsel should have made the claim at the PCR

proceeding that appellate counsel was ineffective.        Both claims boil down to

whether the district court abused its discretion in excluding Lewis’s testimony. If

there was no abuse of discretion, appellate counsel cannot be found ineffective

for failing to raise the issue, and as a result, PCR counsel cannot be found

ineffective for not challenging appellate counsel’s effectiveness. See State v.

Halverson, 857 N.W.2d 632, 635 (Iowa 2015) (“Counsel, of course, does not

provide ineffective assistance if the underlying claim is meritless.”).
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       “[A] witness may be impeached by showing his testimony upon a material

matter is inconsistent with a prior statement made by him.” State v. Bishop, 387

N.W.2d 554, 559 (Iowa 1986). But, “[t]he subject of the inconsistent statement, if

it is to be admissible, must be material and not collateral to the facts of the case.”

State v. Fowler, 248 N.W.2d 511, 520 (Iowa 1976). We conclude the district

court did not abuse its discretion in excluding Lewis’s testimony by concluding

the inconsistent aspect of Blair’s statement to Lewis (where Blair was located

when Moss fired the gun) was not material to the case. Therefore, appellate

counsel was not ineffective in failing to raise this issue on direct appeal, and PCR

counsel was not ineffective in failing to challenge appellate counsel’s

effectiveness at the PCR hearing.

       Moss also claims trial counsel and PCR counsel were ineffective in not

challenging the trial court’s failure to further instruct the jury when the jury asked

for insight or further definition on the aiding and abetting instruction. The jury

was instructed on aiding and abetting but asked the judge,

              We are struggling [with] 1 thing.
              [1] It states that “mere knowledge of the crime is not enough
       to prove [‘]aiding and abetting[’].” Does this refer to knowledge of
       the crime before it happened? Does it need to be joined with proof
       that he encouraged or gave consent? Could you offer insight or
       further define aiding and abetting?

The judge responded, “You have inquired regarding the language in the

instruction relating to ‘aiding and abetting.’ The jury instructions embody the law

necessary for your deliberations.     You are advised to review the instructions

previously given to you and continue your deliberations.” Moss’s trial counsel

and the State agreed the judge’s response was appropriate. On appeal in this
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PCR action, Moss claims trial counsel was ineffective in not requesting the judge

further instruct the jury on aiding and abetting. He also claims his PCR counsel

was ineffective in not presenting this claim at the PCR trial. Again, the issue

boils down to whether the court properly responded to the jury’s question. If the

response was correct, trial counsel cannot be found ineffective at the criminal

trial, and thereby, PCR counsel cannot be found ineffective at the PCR hearing

for failing to challenge trial counsel’s effectiveness.

       The jury’s question indicates it was confused as to the implication of the

timing of Moss’s knowledge of the commission of the crime. The original jury

instruction for aiding and abetting provided:

               “Aid and abet” means to knowingly approve and agree to the
       commission of a crime, either by active participation in it or by
       knowingly advising or encouraging the act in some way before or
       when it is committed. Conduct following the crime may he
       considered only as it may tend to prove the Defendant’s earlier
       participation. Mere nearness to, or presence at, the scene of the
       crime, without more evidence, is not “aiding and abetting.”
       Likewise, mere knowledge of the crime is not enough to prove
       “aiding and abetting.”

(Emphasis added.) The jury instruction given clearly says mere knowledge of the

crime is not enough to prove aiding and abetting. In addition, the instruction

provides the approval, agreement, participation, advice, or encouragement must

come before or at the time the act is committed. We conclude the court did not

abuse its discretion in telling the jury to reread the instructions already given as

the instructions contained the answers to the jury’s questions. See Iowa R. Civ.

P. 1.925 (“While the jury is deliberating, the court may in its discretion further

instruct the jury, in the presence of or after notice to counsel.” (emphasis
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added)). Because any objections by trial counsel would have been meritless,

any claim PCR counsel would have made against trial counsel’s actions would

likewise have been meritless. See State v. Brothern, 832 N.W.2d 187, 192 (Iowa

2013) (“We will not find counsel incompetent for failing to pursue a meritless

issue.”).

       We affirm the district court’s denial of Moss’s PCR application.

       AFFIRMED.
