                    IN THE COURT OF APPEALS OF IOWA

                                  No. 16-1366
                            Filed December 6, 2017

STATE OF IOWA,
   Plaintiff-Appellee,

vs.

MATTHEW SHAWN VICTOR BRIDGES,
   Defendant-Appellant.
________________________________________________________________

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

Judge.



      A defendant challenges his conviction for robbery in the first degree, as well

as his convictions for two counts of using a juvenile to commit robbery.

JUDGEMENT AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

FOR NEW TRIAL AND RESENTENCING.



      Mark C. Smith, State Appellate Defender, and Melinda J. Nye, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant Attorney

General, for appellee.




      Heard by Vogel, P.J., and Tabor and Bower, JJ.
                                              2


TABOR, Judge.

          Police determined that twenty-four-year-old Matthew Bridges enlisted two

friends, both under eighteen years of age, to help rob a convenience store. The

State charged Bridges with aiding and abetting robbery in the first degree and two

counts of using a juvenile to commit robbery. A jury convicted Bridges of all three

crimes.

          On appeal, Bridges first seeks dismissal of all three convictions on the basis

of insufficient evidence. Because we find substantial evidence to corroborate the

accomplice testimony, we affirm on that ground. Alternatively, Bridges seeks a

new trial on the first-degree robbery count, alleging his attorney should have

objected to jury instructions outlining the elements of conspiracy when the State

had not charged Bridges with conspiracy under Iowa Code section 706.1 (2015).

Because those jury instructions—combined with a flawed trial information and the

prosecutor’s closing argument—allowed the jury to consider a form of vicarious

liability not charged, we find a breach of duty and resulting prejudice. Accordingly,

we reverse and remand for a new trial on the robbery conviction. We reject

Bridges’s remaining grounds for reversal, and affirm his convictions on the two

counts of using a minor to commit robbery.

           I.      Facts1 and Prior Proceedings

          In November 2015, Bridges was forced to leave his father’s home in Eldora

because a no-contact order prohibited him from interacting with his brother, who

also lived there. When Bridges moved out both his girlfriend, T.H., then seventeen



1
    A reasonable jury could have found the following facts based on T.H.’s trial testimony.
                                        3


years old, and his friend, G.C., then sixteen years old, left with him. The three

checked into the AmericInn in Iowa Falls. After a couple nights at that hotel, they

ran out of money, and Bridges’s father paid for one night’s stay at the Super 8.

      After their funds were depleted, Bridges concocted a plan to rob a

convenience store and suggested G.C. act as the gunman. According to T.H.,

Bridges provided G.C. with a ski mask and BB gun. But G.C. expressed concern

about getting into a shootout and preferred to have more imposing weaponry

before moving forward. So they drove back to Eldora to get “a real gun” from the

home of Bridge’s father. Bridges sent G.C. into the house, telling him where to

find the weapon.

      Bridges next instructed T.H. to drive to State Center where he pointed out

the Casey’s General Store for G.C. to rob. T.H. recalled that G.C. objected to the

location as having too much “open space,” fearing he would be easily caught. So

Bridges diverted the operation to Newton, where he had previously lived. In fact,

Bridges had rented an apartment behind the Casey’s General Store and was

familiar with that Newton neighborhood. Bridges assured G.C. the new location

would be easier to rob.

      As part of the planning, Bridges walked with his two associates down a

neighborhood bike path where he advised G.C. to “ditch” the gun and apparel after

the robbery. T.H. testified Bridges assigned her to be the lookout because G.C.

“didn’t want to go in if there was customers” in the store. Back at the convenience

store parking lot, T.H. gave the all-clear signal to Bridges and G.C. once the area

was deserted. T.H. and Bridges then walked around the front of the building and
                                             4


across the street to the Newton 66, another convenience store, while G.C. robbed

the Casey’s.2

       After the threesome reunited, Bridges directed them to a friend’s apartment

where they divided up piles of crumbled bills between Bridges and G.C. They left

once word of the robbery spread. According to T.H., Bridges eventually collected

the cash and hid it along a gravel road. Later, Bridges and T.H. retrieved the

money and spent it on restaurant meals, marijuana, clothing, and various other

expenses.

       Police arrested Bridges on November 6, two days after the Casey’s robbery.

A detective interviewed Bridges after his arrest and suggested several times during

the recorded interview that Bridges was lying.3 The State charged Bridges with

robbery in the first degree, a class “B” felony, in violation of Iowa Code sections

711.1(a) and 711.2.         The trial information alleged Bridges “either directly

committed, or aided and abetted in the commission of, or conspired with or entered

into a common scheme or design with one or more others to unlawfully commit a

robbery against Casey’s General Store.” The State also charged Bridges with two

counts of using a juvenile to commit certain offenses, class “C” felonies, in violation

of Iowa Code section 709A.6.

       Facing her own robbery charge and hoping to work out a plea deal, T.C.

testified for the State at the jury trial, describing Bridges as the driving force behind

the robbery. Bridges also testified, claiming ignorance of G.C.’s plan to rob the




2
   The State offered security camera video footage from the Newton 66 showing Bridges
and T.H. walking in front of the Casey’s and G.C. entering the store before it was robbed.
3
  The State played an audio-recording of the interrogation at trial over Bridges’s objection.
                                           5


Casey’s and attributing the cash haul to his marijuana dealing. The jury convicted

Bridges on all three counts.

       The district court sentenced Bridges to concurrent indeterminate ten-year

terms on the class “C” felonies and ran those consecutively with the twenty-five-

year term for robbery. Bridges now appeals his convictions and sentences.

         II.    Scope and Standards of Review

       We employ varied standards of review to address the claims raised by

Bridges on appeal.      We review for errors at law Bridges’s challenge to the

sufficiency of the evidence corroborating accomplice testimony and the district

court’s refusal to submit a requested lesser-included-offense jury instruction. See

Herbst v. State, 616 N.W.2d 582, 585 (Iowa 2000); State v. Bugley, 562 N.W.2d

173, 176 (Iowa 1997). We also review sentencing challenges for legal error;

sentences within the statutory limits will only be set aside for an abuse of discretion.

State v. Thomas, 547 N.W.2d 223, 225 (Iowa 1996).

       We review de novo Bridges’s claims of ineffective assistance of counsel.

See State v. Ondayog, 722 N.W.2d 778, 783 (Iowa 2006). And we look for an

abuse of discretion when evaluating his evidentiary challenge to the admissibility

of an audio recording of a police interview. See State v. Harrington, 800 N.W.2d

46, 48 (Iowa 2011). Although to the extent the evidence claim is based on the

hearsay rules, we review for the correction of errors at law. See State v. Plain,

898 N.W.2d 801, 810 (Iowa 2017).
                                             6


           III.   Analysis

           A. Evidence Corroborating T.H.’s Accomplice Testimony

         Bridges alleges the State offered insufficient evidence to corroborate T.H.’s

testimony connecting him to the armed robbery. 4 He contends he was effectively

convicted based on her word alone.

         The State must corroborate accomplice testimony “by other evidence which

shall tend to connect the defendant with the commission of the offense.” See Iowa

R. Crim. P. 2.21(3). “[T]he corroboration is not sufficient if it merely shows the

commission of the offense or the circumstances thereof.”              Id.   We view

corroborating evidence in the light most favorable to the State, including every

legitimate inference that may be deduced. See Bugely, 562 N.W.2d at 176. “[T]he

corroboration of an accomplice’s testimony need not be strong, nor must it confirm

every material fact testified to by the accomplice. It need only tend to connect an

accused with the commission of a given crime.” State v. King, 256 N.W.2d 1, 10

(Iowa 1977). Corroborating evidence may be direct or circumstantial. State v.

Brown, 397 N.W.2d 689, 695 (Iowa 1986). But corroborative evidence must do

more than “merely raise a suspicion the accused is the guilty party.” State v.

Gillespie, 503 N.W.2d 612, 617 (Iowa Ct. App. 1993).

         Bridges discounts two potential sources of corroboration—the testimony of

his brother, Zakk, concerning the gun taken from their father’s house and used in

the robbery and security camera footage showing Bridges outside the Casey’s

moments before the robbery.



4
    The State does not contest T.H.’s status as an accomplice.
                                          7


       Zakk testified his brother expressed a desire to pick up the gun and later

disclosed he had “already grabbed it” and was headed to Newton.                Police

discovered the gun south of the Casey’s following the robbery. According to

Bridges, his brother’s testimony was inadequate corroboration because Zakk

disliked him and was good friends with T.H. But it was for the jury to weigh the

witness’s motivation for testifying when considering the value of the corroborating

evidence. See Bugely, 562 N.W.2d at 176 (noting sufficiency of corroborating

evidence is question for the jury not the court).

       Bridges also argues the security footage does not corroborate his

participation in the crimes because he does not deny being in the vicinity. But the

footage shows more than Bridges’s presence outside the Casey’s; it reveals

conduct that T.H. described as reconnaissance. The jury could see Bridges and

T.H. circling the building, T.H. peering around the corner waiting for possible

witnesses to leave, and the pair reappearing after the area is clear, followed closely

by G.C., who enters Casey’s and robs it at gunpoint. The jury was entitled to

interpret the footage and decide if Bridges’s conduct was consistent with a clueless

bystander, as he claims, or an active participant, as T.H. claims.

       Even setting aside the corroboration provided by Zakk and the security

footage, the State offered other evidence to bolster T.H.’s testimony. T.H. testified

that before the robbery, the threesome walked a nearby bike trail and Bridges told

G.C. to “ditch” his clothes along the trail after the robbery. An officer testified to

finding sweatpants and a sweatshirt along the trail shortly after the robbery. The

State also introduced several photos of the bike trail, strewn with clothing

consistent with that worn by G.C. during the robbery.
                                          8


       The State also presented evidence to corroborate Bridges’s financial motive

for planning the robbery. T.H. testified Bridges was broke. His father testified he

gave Bridges money for a hotel room. T.H. testified, when the threesome met up

after the robbery, they went to the apartment of Bridges’s friend and divided the

proceeds in a bedroom. Bridges’s friend testified he walked into his bedroom and

saw the three sorting “small dominations of crumpled-up cash” shortly after the

Casey’s was robbed.

       The State offered sufficient evidence to corroborate T.H.’s testimony from

multiple sources—Zakk’s testimony, the security footage, and the discarded

clothing, as well as the testimony about Bridges’s financial motivation. The jurors

were free to review the totality of the evidence and determine if it connected

Bridges to the crimes independently from T.H.’s testimony. See id. The district

court properly denied the motion for judgment of acquittal on all three offenses

because the jury’s verdicts were supported by substantial evidence.

       B.     Counsel’s Failure to Object to Conspiracy Instructions

       The State charged Bridges with robbery, either as the principal5 or an aider

and abettor. The trial information—which the prosecutor read to the jury at the

start of the trial—included a third alternative: Bridges “conspired with or entered

into a common scheme or design with one or more others” to commit the robbery.




5
 The State did not present any evidence showing Bridges acted as the principal, but
Bridges does not challenge the sufficiency of the evidence for that alternative theory.
                                             9


On appeal, the State admits that passage was “erroneous” because the State did

not charge Bridges with conspiracy under section 706.1.6

       Against that backdrop, Bridges challenges his trial counsel’s failure to object

to a series of jury instructions setting out the law of conspiracy.7 To prove he


6
   “A conspiracy to commit a public offense is an offense separate and distinct from any
public offense which might be committed pursuant to such conspiracy.”                  Iowa
Code § 706.4 (emphasis added).
7
  At issue are the following six instructions:
        Instruction No. 19
        The State alleges that [Bridges], [G.C.], and [T.H.] were co-conspirators. The State
must prove all the following elements in order to prove that [Bridges] participated in a
conspiracy:
    1. On or about the November 4, 2015, [Bridges] agreed with [G.C.] and [T.H.]
            a. that one or more of them would commit a robbery, or solicit another to
                commit the robbery; or
            b. attempt to commit the robbery
    2. [Bridges] entered into the agreement with the intent to promote or facilitate a
        robbery.
    3. [Bridges], or [G.C.], or [T.H.] committed an overt act.

        Instruction No. 20
        In order to prove that [Bridges] conspired to commit a robbery with [G.C.] and
[T.H.], the State must prove [Bridges] and [G.C.] and [T.H.] came to a mutual
understanding that a robbery would be attempted or committed. The agreement can be
oral or written, informal or formal, and need not be detailed. It may be proven by direct or
circumstantial evidence of a person’s words, actions or gestures.

     Instruction No. 21
     Merely because two or more persons associate with each other, or meet to discuss
common interests or goals does not, by itself, establish an agreement or make one a
member of a conspiracy.

       Instruction No. 22
       An “over act” is any act indicating a person’s intent to accomplish the robbery. The
overt act itself does not prove a conspiracy. A person who commits an overt act cannot
be a conspirator unless that person also agreed and intended the robbery would be
committed.

         Instruction No. 23
         The State does not have to prove [Bridges] knew all the details of the conspiracy
nor all the other persons who had agreed to commit a robbery. However, the State must
prove [Bridges] knowingly participated in the agreement at some time. If a person
performs an act that promotes or facilitates the purpose of the conspiracy without
knowledge of the conspiracy, he or she is not a conspirator.
                                           10


received ineffective assistance of counsel, Bridges must show (1) trial counsel

breached an essential duty when he lent his approval to the proposed jury

instructions on conspiracy and (2) Bridges suffered prejudice as a result. See

Strickland v. Washington, 466 U.S. 668, 687–88 (1984). Here, the record is

adequate to address the claim on direct appeal. See State v. Soboroff, 798 N.W.2d

1, 8 (Iowa 2011).

       1.     Breach of Duty

       We turn first to the performance prong. Bridges argues his attorney had a

duty to “know the applicable law” and to protect him from a conviction stemming

from a mistaken application of the law. He contends counsel was remiss in not

objecting to the conspiracy instructions because they had “no relevancy” to his

robbery case and would have been “confusing and misleading” to the jurors.

       The State insists counsel had no duty to object to the conspiracy

instructions. Citing State v. Tonelli, 749 N.W.2d 689, 691–92 (Iowa 2008), the

State argues the court may instruct the jury on concepts of conspiracy even when

the State has not charged the defendant under section 706.1. The State also

asserts the disputed instructions gave the jury “particularized directives on what

evidence of the conspiracy they could use to find Bridges guilty of robbery and

when they could do so.”




       Instruction No. 24
       Whether a person is a conspirator depends upon his or her own conduct or
statements. If, however, you find [Bridges] agreed the robbery would be committed, then
the conduct or statements of the others who agreed to commit robbery may be considered
as evidence against him, providing the conduct or those statements promoted or facilitated
the purpose of the conspiracy and occurred before the conspiracy ended. It is not
necessary the conduct or statement of the others occurred in Bridges’s presence.
                                         11

       The State reads Tonelli too broadly. Tonelli addresses what constitutes a

“conspiracy” sufficient to trigger the rule of evidence concerning the admissibility

of co-conspirator statements.     749 N.W.2d at 691 (discussing Iowa Rule of

Evidence 5.801(d)(2)(E)). Tonelli held the definition of “conspiracy” for purposes

of rule 5.801(d)(2)(E) was distinguishable from the definition of criminal conspiracy

under section 706.1.     Id. at 693.    The court further concluded the rule on

admissibility of co-conspirator statements would apply where the record included

“evidence of a conspiracy to accomplish a criminal or unlawful act, or to do a lawful

act in an unlawful manner, but not to combinations or agreements in furtherance

of entirely lawful goals advanced by lawful means.” Id. at 694. But Tonelli did not

hold that a trial court may instruct a jury on the elements of an uncharged

conspiracy.

       The State further argues counsel was not obliged to object because “the

jury instruction package as a whole” did not mislead the jurors as to the availability

of the conspiracy alternative. The State points out neither the robbery marshalling

instruction nor the verdict form mentioned a conspiracy alternative.

       A defense counsel’s failure to recognize an instructional error breaches an

essential duty.    See State v. Hopkins, 576 N.W.2d 374, 379–80 (Iowa

1998). Here, counsel had a duty to object to these free-floating conspiracy

instructions—which had no valid connection to the robbery charge—though they

immediately preceded the robbery marshalling instruction. Instructing the jury

regarding a separate crime, not charged, creates a troubling due process question:

How can the accused adequately prepare a defense against a phantom offense?

The short answer is the accused cannot and due process protections ensure he or
                                            12

she is not placed in that precarious position. See State v. Hernandez–Lopez, 639

N.W.2d 226, 241 (Iowa 2002) (“At the very least, due process requires the

defendant to receive formal notice of the charges against him and an opportunity

to be heard at a meaningful time in a meaningful manner.”); State v. Griffin, 386

N.W.2d 529, 531 (Iowa Ct. App. 1986) (noting due process requires a defendant

to be “apprised of the crime charged with sufficient certainty to enable him to

prepare his defense”). By not objecting to the conspiracy instructions, defense

counsel failed to perform an essential duty. See Ondayog, 722 N.W.2d at 785.

       2.      Prejudice

       Next, we must determine if counsel’s failure to object to the conspiracy

instructions resulted in prejudice to Bridges. See id. (“The question becomes

whether there was a tactical reason for not objecting to the instruction.”). The State

suggests the record is “foggy” as to counsel’s motivations for not objecting. The

State contends even if the conspiracy instructions were inapplicable to the robbery

charge, they “could only have worked to Bridges’ advantage” by placing “an

additional hurdle” in front of the prosecution.8 The State further argues Bridges

was not prejudiced because the prosecution offered “overwhelming evidence” to

support his conviction for aiding and abetting the robbery, “for which the jury was

given a correct instruction.”




8
 The State asserts the instructions created “a prerequisite that the jury had to reach the
conclusion that a conspiracy existed prior to considering T.H.’s testimony or G.C.’s out-of-
court statements.” We disagree with this assertion. The instructions placed no
parameters on the jury’s consideration of T.H.’s in-court testimony and the admissibility of
G.C.’s coconspirator statements was a threshold legal question for the court. See Iowa
R. Evid. 5.801(d)(2)(E).
                                         13


       We address the State’s last point first. Flawed jury instructions “cannot

necessarily be overcome” by giving other instructions that correctly state the law.

State v. Hanes, 790 N.W.2d 545, 552 (Iowa 2010). Here, the jury returned a

general verdict finding Bridges “guilty of robbery in the first degree, as charged in

count one of the trial information” without specifying which theory or theories each

juror relied upon.    Of course, the trial information mistakenly included the

conspiracy alternative, as well as aiding and abetting.        Moreover, the court

instructed the jurors that “[w]here two or more theories are presented, or where

two or more theories would produce the same result, the law does not require each

juror to agree as to which theory leads to his or her verdict.” On the available

record, we are left to guess whether the jury improperly gravitated to the State’s

conspiracy theory of robbery.

       Aiding-and-abetting liability and conspiracy liability, while both allowing

vicarious responsibility for another’s actions, are distinct concepts governed by

separate code sections. Compare Iowa Code § 703.1 with § 706.1; see State v.

Huser, 894 N.W.2d 472, 504 (Iowa 2017) (noting “aiding and abetting and

conspiracy are different concepts”). Our court has explained “[t]he law of aiding

and abetting must be differentiated from a charge of conspiracy.” Shelton v. State,

No. 08-1962, 2011 WL 441932, at *4 (Iowa Ct. App. Feb. 9, 2011). “In conspiracy,

a defendant engaged in a criminal act is liable for the acts of his coconspirators

which were done in the furtherance of the common plan. However in aiding and

abetting, the guilt of each person must be determined alone from the part he played

in the transaction.” Id. In other words, even though a defendant may be found

guilty under a theory of conspiratorial liability based solely on an agreement to
                                         14


commit a crime and a coconspirator’s overt act, a defendant may not be convicted

of aiding and abetting unless the State offers proof he has engaged in conduct

designed to assist another in the commission of a crime. See Iowa Code § 703.1

(“The guilt of a person who aids and abets the commission of a crime must be

determined upon the facts which show the part the person had in it, and does not

depend       upon      the      degree        of   another       person’s      guilt.”)

       The jury could have concluded Bridges was guilty of conspiring with G.C.

and T.H. from evidence that he secured their agreement to commit a robbery and

then they engaged in acts indicating their intent to accomplish the crime, for

example, obtaining a weapon or casing convenience store locations. The burden

to prove robbery by aiding and abetting was arguably more onerous. The State

was required to prove Bridges “lent countenance and approval” to G.C.’s criminal

act “either by active participation in it or by some manner encouraging it prior to or

at the time of its commission.” See State v. Vesey, 241 N.W.2d 888, 891 (Iowa

1976). “[N]either knowledge nor proximity to the scene is—standing alone—

enough to prove aiding and abetting.” State v. Lewis, 514 N.W.2d 63, 66 (Iowa

1994). Because Bridges offered a counter-narrative that he had proximity to the

robbery without knowledge or participation, we cannot be confident all of the jurors

settled on the aiding-and-abetting theory rather than latching onto the alternative

theory of conspiracy. Instructing the jury on the elements of conspiracy thus posed

a risk that Bridges would be convicted of an uncharged crime.

       The prosecution injected the theory of conspiracy liability into the trial—from

the reading of the trial information to closing arguments. In closing, the prosecution

made at least nine references to conspiracy as a method of convicting Bridges of
                                          15


robbery.9 The prosecutor highlighted the conspiracy instructions: “In this case the

State has presented two separate theories as the Judge has read the jury

instructions to you. One is conspiracy. . . . The second theory has to do with Mr.

Bridges and his aiding and abetting of what happened.” When reviewing the

specific intent element of the robbery marshalling instruction, the prosecutor told

the jurors that it was proven if Bridges “conspired with” G.C. The prosecution’s

closing arguments contribute to our finding of prejudice.

       Competent counsel should have lodged an objection to the conspiracy

instructions, especially considering the defense pursued by Bridges—which

attempted to thread the needle between associating with the gunman both before

and after the robbery, yet disclaiming liability. We find no strategic reason for trial

counsel not to object to the irrelevant series of instructions on conspiracy.

       A party is prejudiced when the district court’s instructions materially misstate

the law or confuse and mislead a jury. See Anderson v. Webster City Cmty. Sch.

Dist., 620 N.W.2d 263, 267–68 (Iowa 2000). When reviewing instructions in the

context of an ineffective-assistance-of-counsel claim, we require the defendant to

show a reasonable probability the outcome of the trial would have been different if

the jury had not been led astray. We find Bridges has satisfied that burden here.



9
  On appeal, the State argues any misstatements by the trial prosecutor are of no
consequence because the court instructed the jurors that closing arguments are not
considered evidence. But the concern is not that the arguments would be viewed as
evidence, the concern is the prosecutor misstated the law and exacerbated the faulty
instructions on conspiracy. See State v. Clay, 824 N.W.2d 488, 497 (Iowa 2012)
(“A prosecutor can argue the law, but cannot instruct the jury on the law.”).
                                           16


       While the State offered substantial evidence Bridges aided and abetted in

the robbery, it was also within the jurors’ prerogative to believe Bridges’s version

of events. Even if the jury rejected Bridges’s story, it could have found the State

proved conspiracy liability—rather than accomplice liability—and rendered its

guilty verdict on a faulty basis. Had the jury not been instructed on the elements

of conspiracy, we think there is a reasonable probability the outcome of his trial

would have been different. See Soboroff, 798 N.W.2d at 9–10 (quoting language

from Strickland that reasonable probability test for prejudice requires only a

showing that the probability of a different result is “sufficient to undermine

confidence in the outcome”).

       Because our confidence in the jury’s verdict is shaken, we conclude

counsel’s failure to object resulted in prejudice and Bridges is entitled to relief. We

reverse his conviction for first-degree robbery and remand for a new trial.

        C.      Requested Lesser-Included-Offense Instruction

       Having concluded Bridges was not entitled to judgment of acquittal on any

of the three offenses, and having also determined a new trial is warranted on his

first-degree robbery conviction, we turn to his claims involving the two remaining

convictions for using a juvenile to commit robbery. He again attacks the jury

instructions.

       Bridges requested a jury instruction on contributing to the delinquency of a

minor10 as a lesser included offense to using a juvenile to commit certain


10
  “It shall be unlawful: . . . To knowingly encourage, contribute, or in any manner cause
such child to violate any law of this state, or any ordinance of any city.” Iowa Code
§ 709A.1(3).
                                            17


offenses.11 The trial court refused to submit the requested instruction, relying on

our unpublished case of State v. Rockwood, No. 15-0289, 2016 WL 2745906, at

*2 (Iowa Ct. App. May 11, 2016). On appeal, Bridges argues the district court was

mistaken in not giving the jury the option of finding he was only guilty of contributing

to the delinquency of a minor, which is a simple misdemeanor.

         Iowa courts use the “impossibility test” to determine if one crime qualifies as

a lesser included offense of another. State v. Miller, 841 N.W.2d 583, 588 (Iowa

2014). Under the impossibility test, we ask if the offender can commit the greater

offense without also committing all elements of the lesser included offense. Id.

We don’t require the legislature to have described the elements of the two offenses

in an identical manner. See State v. Waller, 450 N.W.2d 864, 866 (Iowa 1990)

(equating elements statutorily described differently in greater and lesser offenses).

To determine the existence of a lesser included offense, we first look at the

elements of the marshaling instruction submitted to the jury. See Miller, 841

N.W.2d at 590. We then compare the elements described in the marshalling

instruction to the statutory elements of the proposed lesser included offense. Id.

         The marshalling instructions submitted at Bridges’s trial for using a minor to

commit certain indictable offenses under section 709A.6(2) required the State to

prove:

         1.      That on or about November 4, 2015, [Bridges] acted with, or entered
         into a common scheme or plan with, or conspired with, or recruited or used;
         2. A person under age 18, namely [T.H. or G.C.];

11
   “It is unlawful for a person to act with, enter into a common scheme or design with,
conspire with, recruit or use a person under the age of eighteen, through threats, monetary
payment, or other means, to commit an indictable offense for the profit of the person acting
with, entering into the common scheme or design with, conspiring with, recruiting or using
the juvenile.” Iowa Code § 709A.6(2).
                                          18


       3. To commit a robbery;
       4. Through threats or monetary payment or other means;
       5. For the profit of [Bridges].
       By comparison, it is unlawful under section 709A.1(3) (the proposed lesser

included offense of contributing to delinquency) (1) to knowingly encourage,

contribute, or in any manner cause (2) a child under eighteen years of age (3) to

violate any law of this state, or any ordinance of any city.

 Offense         Elements

 709.6(2)/     Entered       Through           A person    To commit     For the
 Marshalling   into a        threats or        under age   a robbery     profit of the
 Instruction   common        monetary          eighteen                  defendant
               scheme or payment
               plan with,    or other
               or            means
               conspired
               with, or
               recruited
               or used
 709A.1(3)     Knowingly encourage,            Any child   To violate
 (Contributing contribute or in any            under       any law of
 to the        manner cause                    eighteen    the state,
 delinquency                                   years of    or any city
 of a minor)                                   age         ordinance


       Bridges contends it was impossible for him to violate section 709A.6(2), as

marshaled at his jury trial, without also contributing to the delinquency under

section 709A.1(3). He points out both crimes involve enlisting (recruiting or using

through threats or payment vs. encouraging or in any manner causing) someone

under the age of eighteen to commit a crime (here robbery). The extra element in

the greater offense is the profit motive for the defendant.

       The State defends the district court’s decision not to submit the proposed

lesser included offense instruction.       The State claims contributing to the
                                           19


delinquency is not a lesser included offense of using a minor to commit robbery

because the proposed lesser included offense requires proof of an extraneous

element—knowledge that the other participant is under eighteen.              The State

asserts the phrase “knowingly encourage . . . such child” in section 709A.1(3)

means the defendant must have knowledge the other person is a child. The State

contends the absence of the word “knowingly” in section 709A.6(2) creates strict

liability for the age element of the greater offense. Under the State’s reasoning, a

defendant could be convicted of the class “C” felony—using a juvenile to commit

an indictable offense—regardless of whether the defendant knew the “used”

person was a juvenile, but a defendant could not be convicted of the simple

misdemeanor—contributing to the delinquency—without proof the defendant knew

the “encouraged” person was a juvenile.

       We are skeptical the legislature intended such a strange dichotomy—

requiring knowledge of age for the non-indictable offense, but not for the felony.

Iowa—like all other states—enacted its “contributing to delinquency” statute “to

eliminate any variety of Fagin-Oliver Twist relationship” in our society. See James

N. Kourie, Annotation, Mens Rea or Guilty Intent as Necessary Element of

Contributing to the Delinquency of a Minor, 31 A.L.R.3d 848 (1970).                 The

legislature enacted a forerunner of section 709.6A.1(3) in 1921. State v. Simpson,

118 N.W.2d 606, 609 (1962). The legislature “made this offense practically all

inclusive to cover the field of all possible acts or series of acts that would contribute

to or cause the delinquency of a child under 18 years of age . . . it took in the entire

field of criminal law, both state and local.” Id. “The intent of the legislature was to

protect children.” Id. Given that clear motivation for the law, we cannot read the
                                         20


term “knowingly” as requiring proof that the defendant knew the age of the victim.

Cf. State v. Tague, 310 N.W.2d 209, 212 (Iowa 1981) (rejecting mistake of fact as

to victim’s age as a defense to the charge of sexual abuse in the third degree and

describing People v. Atchison, 583 P.2d 735 (Cal. 1978), which held that trial court

erred in instructing jury that knowledge of age is immaterial to the charge of

contributing to the delinquency of a minor, as minority view). To do so would

provide less protection for children.

       Moreover, when the legislature wants to make knowledge of age an element

of the offense, it knows how to do so explicitly.       See Iowa Code § 123.47

(prohibiting a person from selling, giving or otherwise supplying “alcoholic liquor,

wine, or beer to any person knowing or having reasonable cause to believe that

person to be under legal age” (emphasis added)). In the absence of such clear

language, we decline to find the proposed lesser included offense requires a

greater showing of mens rea than the greater offense. Contrary to the State’s

position, neither section 709A.6(2) nor section 709A.1(3) requires proof that a

defendant knew the person that he encouraged or recruited person was a minor.

       The State pulls an additional arrow from its quiver. It asserts section 709A.1

is not subject to a lesser included offense analysis because of the anti-merger

language in section 709A.2.      Section 709A.2 provides “A violation of section

709A.1 is a simple misdemeanor. A conviction does not bar a prosecution of the

convicted person for an indictable offense when the acts which caused or

contributed to the delinquency or dependency of the child are indictable.” See

Simpson, 118 N.W.2d at 609 (describing legislature’s recognition that conviction

of contributing to delinquency, a non-indictable misdemeanor, “should not bar a
                                           21


prosecution for an indictable offense”). The State interprets section 709A.2 as

allowing convictions under both 709A.1 and 709A.6, thus foreclosing a lesser-

included-offense structure. We disagree with the State’s interpretation. When

discussing the possibility of two prosecutions, section 709A.2 is referring to the

“indictable offense” the child is encouraged to commit. It is not referring to the

later-enacted, indictable offense of using a minor in section 709A.6.12 Section

709A.2 is not relevant to our lesser-included-offense analysis.

       The only case examining whether contributing to delinquency should be

instructed as a lesser included offense of using a juvenile to commit certain

offenses is Rockwood, 2016 WL 2745906 at *1–2 (concluding contributing to

delinquency under Iowa Code section 709A.1(1) is not a lesser included offense

of using a juvenile to commit certain offenses). That case involved subsection (1)

rather than subsection (3) of section 709A.1. Id. at *2. Subsection (1) makes it a

crime “[t]o encourage any child under eighteen years of age to commit any act of

delinquency defined in chapter 232.” Iowa Code § 709A.1(1). Rockwood asserted

the verb “encouraged,” as used in subsection (1), fell within the using “other

means” language in section 709A.6(2). Rockwood, 2016 WL 2745906, at *2. Our

court concluded while “encouraging” the commission of a delinquent act could

qualify as “other means” under section 709A.6(2), it was still possible to commit



12
   Section 709A.6 was originally enacted in 1992 as part of an omnibus juvenile justice
package, much of which was vetoed by the governor due to budgetary and staffing
limitations. H.F. 2452, 74th Gen. Assemb., 2d Sess. (Iowa 1992). The legislature
criminalized using a minor to commit certain offenses as part of the Juvenile and Criminal
Justice Act. Id. The act was intended to establish and increase penalties for offenses
involving minors. See id. Originally, the legislature classified using a minor to commit
certain offenses as a class “D” felony, but in 1995 it was amended and reclassified as a
class “C” felony. Compare id., with H.F. 528, 76th Gen. Assemb., Reg. Sess. (Iowa 1995).
                                         22


the greater offense by means other than encouragement, thus the simple

misdemeanor under section 709A.1(1) was not a lesser included offense. Id.

       We find Rockwood distinguishable because subsection (3), at issue here,

features more all-encompassing terminology than subsection (1). Subsection (3)

prohibits a person from knowingly encouraging, contributing, or in any manner

causing such child to violate any state law or city ordinance.          Iowa Code

§ 709A.1(3). We believe it would be impossible to commit the greater offense of

using a juvenile to commit a robbery without also knowingly encouraging,

contributing, or in any manner causing that juvenile to violate a state law.

Accordingly, we find the district court erred in not submitting the lesser included

offense to the jury.

       But that finding does not end our inquiry. An instructional error does not

automatically warrant reversal. State v. Negrete, 486 N.W.2d 297, 298 (Iowa

1992). The omission of the proffered instruction is considered prejudicial if selling

the jury on the reduced culpability offered by the lesser included offense formed “a

primary part” of the defense. Miller, 841 N.W.2d at 596 (in prosecution for escape,

finding omission of lesser included offense instruction on absence from custody

was prejudicial because Miller’s primary defense was that he failed to check back

into facility after furlough).

       Here, the difference between the proposed lesser included offense and the

marshalled offense was the “for profit” element. See Iowa Code § 709A.6(2).

Within section 709A.6 “‘profit’ means a monetary gain, monetary advantage, or

monetary benefit.” Id. at § 709A.6(1). Bridges’s defense did not center on that

element. Instead he denied any involvement in the robbery and claimed the cash
                                         23


came from his marijuana sales.        Because Bridges pursued an all-or-nothing

defense, and the State offered substantial evidence from which the jury could find

Bridges profited from G.C.’s robbery of Casey’s, we find the instructional error to

be harmless.

       D.      Prosecution’s Use of Interrogation Recording

       1. Admission of Recording Over Bridges’s Objection

       Bridges filed a motion in limine to exclude the audio recording of his

interrogation—arguing his statements were inadmissible hearsay. While arguing

the motion, counsel for Bridges asserted his client was prejudiced by Detective

Wing repeatedly calling Bridges a liar during the interrogation. The district court

admitted the recording, and it was played for the jury during trial.

       On appeal, Bridges focuses on the detective’s statements during the

interrogation, claiming they constituted impermissible commentary on Bridges’s

credibility. Our supreme court rejected a similar argument in State v. Enderle. See

745 N.W.2d 438, 442–43 (Iowa 2007) (concluding officer statements provide

context for defendant’s answers). In Enderle, the court concluded police officer

statements “made during interrogations are not ‘testimony’ given by witnesses at

trial and [are] not offered to impeach the defendant.” Id. at 443. The officer

statements provide context for the defendant’s responses. Id.

       The district court properly allowed the jury to hear Bridges’s statements on

the audio recording. See Iowa R. Evid. 5.801(d)(2)(A); State v. Odem, 322 N.W.2d

43, 47 (Iowa 1982) (“It is basic that a party may place into evidence the admissions

of a party-opponent.”). And the detective’s statements were admissible to provide
                                            24

context for Bridges’s statements. See Iowa R. Evid. 5.106;13 Enderle, 745 N.W.2d

at 443.

       The district court also properly weighed the probative value of the recording

against the risk of undue prejudice as required by Iowa Rule of Evidence 5.403.14

See State v. Davis, No. 13-1099, 2014 WL 5243343, at *7 (Iowa Ct. App. Oct. 15,

2014) (noting district court must consider rule 5.403 after applying rule 5.106). The

jury was entitled to assess how Bridges responded to the detective’s assertions

Bridges was reformulating his account as the interview progressed. As the State

argues on appeal, the detective’s accusations were the necessary “connective

tissue” to explain Bridges’s shifting recollections. We afford district courts broad

discretion in conducting the rule 5.403 balancing test. See State v. Taylor, 689

N.W.2d 116, 124 (Iowa 2004) (recognizing “wise judges may come to differing

conclusions” and giving “much leeway to trial judges who must fairly weigh

probative value against probable dangers” (citation omitted)). We do not believe

the district court abused its discretion in allowing the jury to hear the twenty-two

minute recording.

       2. Failure to Request a Limiting Instruction



13
   “When [a] . . . recorded statement, or part thereof, is introduced by a party, any other
part . . . is admissible when necessary in the interest of fairness, a clear understanding,
or an adequate explanation.” Iowa R. Evid. 5.106. Recordings of police interrogations
may be presented in whole to place statements by the defendant in context. See State v.
Esse, No. 03–1739, 2005 WL 2367779, at *3 (Iowa Ct. App. Sept. 28, 2005).
14
    “The court may exclude relevant evidence if its probative value is substantially
outweighed by a danger of one or more of the following: unfair prejudice, confusing the
issues, misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” Iowa R. Evid. 5.403.
                                              25


       Bridges next argues his trial attorney was ineffective for not requesting a

limiting instruction to address the purpose for which the jurors could consider the

detective’s statements on the audio recording. A limiting instruction is required

when evidence is admissible for one purpose but not another. See Iowa R. Evid.

5.105.15    Bridges contends the jury should have been cautioned to use the

detective’s statements only for context and not for the truth of the matter asserted.

In a factually similar case, our court concluded a limiting instruction was necessary.

See State v. Esse, No. 03-1739, 2005 WL 2367779, at *3 (Iowa Ct. App. Sept. 28,

2005) (holding defendant was entitled to a new trial when district court denied a

request for limiting instruction and appellate court couldn’t determine if jury relied

on the interrogator’s repeated claims Esse was lying about his involvement in the

crime).

       Because his counsel did not request a limiting instruction, Bridges must

demonstrate counsel omitted an essential duty and Bridges was prejudiced by the

omission. See Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001). Assuming

competent counsel should have requested a limiting instruction as described in

Esse, we find Bridges is unable to establish prejudice on this record.

The test for prejudice is whether “there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.” Strickland, 466 U.S. at 694.




15
  “If the court admits evidence that is admissible . . . for a purpose—but not . . . for another
purpose—the court, on timely request, must restrict the evidence to its proper scope and
instruct the jury accordingly.” Iowa R. Evid. 5.105.
                                          26


       We find no reasonable probability of a different outcome had counsel

requested a limiting instruction concerning the proper use of the detective’s

statements accusing Bridges of lying during the interrogation. Bridges admitted

at least six times during his own testimony that he lied to the detective. Bridges

claimed he lied to hide his marijuana dealings, but nevertheless he confirmed the

detective’s accusations that he was not being truthful.          Even with a limiting

instruction concerning the detective’s statements, the jurors would have been able

to consider the truth of the matter asserted in Bridges’s own admissions. Bridges

is not entitled to relief on this claim of ineffective assistance of counsel.

       E. Sentencing

       1. Imposition of Consecutive Sentences

       The district court sentenced Bridges to an indeterminate term of prison not

to exceed twenty-five years for first-degree robbery and indeterminate terms of ten

years each for two counts of using a minor to commit robbery. The later counts

were to run concurrently to each other but consecutively to the robbery count. On

appeal, Bridges challenges the district court’s consecutive sentencing. Because

we reverse Bridges’s first-degree robbery conviction, his particular challenge to the

consecutive sentences is moot. We remand for resentencing on the remaining two

counts. See State v. Nall, 894 N.W.2d 514, 525 (Iowa 2017) (“When only one of

several convictions is reversed on appeal, an appellate court may remand the

entire case for resentencing.”).

       2. Consideration of Juvenile Record

       The presentence investigation (PSI) report, which the district court reviewed

before the sentencing hearing, contained information related to delinquency
                                         27


adjudications received by Bridges. On appeal, Bridges contends the district court

should have weighed the mitigating factors set out in State v. Lyle, 854 N.W.2d

378, 404 n.10 (Iowa 2014) when considering his juvenile record. We find no

mandate in Lyle for Bridges’s contention. In fact, Lyle specified: “This case does

not move any of the lines that currently exist in the sentencing of adult offenders.”

Id. at 403. We decline to get ahead of our supreme court on this issue. See State

v. Bruegger, 773 N.W.2d 862, 886 (Iowa 2009) (acknowledging “Bruegger’s

conduct as a juvenile” was relevant to sentencing).

       F. Conclusion

       To recap, we find the district court properly denied the motion for judgment

of acquittal on all three counts. But we conclude Bridges received ineffective

assistance of counsel when his attorney failed to object to the conspiracy

instructions impacting the first-degree-robbery conviction.       We reverse and

remand for a new trial on the robbery count of the trial information.

       As for the other appellate claims, we conclude the court should have

submitted the lesser included offense of contributing to delinquency, but we find

the error was harmless considering Bridges’s defense denying any involvement in

the robbery.   The district court properly admitted the audio recording of the

interrogation, and while counsel should have requested a limiting instruction in

relation to the detective’s statements on the recording, Bridges cannot show

prejudice as a result of counsel’s inaction. We remand for resentencing on the two

remaining counts and express no requirement that the district court apply the Lyle

factors when considering Bridges’s juvenile history.
                           28


    JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND

REMANDED FOR NEW TRIAL AND RESENTENCING.
