               IN THE SUPREME COURT OF IOWA
                              No. 08–0623

                           Filed May 20, 2011


STATE OF IOWA,

      Appellee,

vs.

JEFFREY ALAN SOBOROFF,

      Appellant.



      Appeal from the Iowa District Court for Clinton County, J. Hobart

Darbyshire, Judge.



      Jeffrey Soboroff appeals his conviction for making threats in

violation of Iowa Code section 712.8 (2007).          REVERSED AND

REMANDED FOR NEW TRIAL.



      Mark C. Smith, State Appellate Defender, and Martha J. Lucey,

Assistant State Appellate Defender, for appellant.



      Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant

Attorney General, and Michael L. Wolf, County Attorney, for appellee.
                                     2

MANSFIELD, Justice.

      Jeffrey Soboroff was convicted following a jury trial of the offense of

“threats” in violation of Iowa Code section 712.8 (2007) after posting on

his website a slideshow entitled “Target for Tonight.” The slides included

a photograph of a city’s water tower, references to putting Thorazine in

the city’s water supply, and photographs of certain residents of the city

with a caption expressing the view that these individuals “could use

some medication.”

      On appeal, Soboroff argues that section 712.8, which prohibits

threats to place “any destructive substance” where it will endanger

people, does not apply to the potential contamination of a city water

supply with a psychotropic drug.         Soboroff also contends his trial

counsel was constitutionally ineffective for not moving for a judgment of

acquittal because Soboroff did not make a “true threat,” i.e., a threat that

a reasonable person of ordinary intelligence would have understood as

such. Additionally, Soboroff argues his counsel should have requested

an instruction that would have required the jury to find the elements of a

“true threat.”

      We hold section 712.8 can cover threats to contaminate a water

supply with a psychotropic drug. Also, there was substantial evidence

Soboroff made statements that would be understandable as threats by a

person of reasonable intelligence. However, we agree with Soboroff that

he received ineffective assistance when his counsel failed to ask for an

instruction requiring the jury to find a “true threat.”    While there was

evidence that Soboroff’s threats were real, there was also evidence from

which a jury could have concluded his statements were not real threats,

and this issue should have been squarely presented to the jury.

Therefore, we reverse and remand for a new trial.
                                    3

      I. Background Facts and Proceedings.

      Based upon the testimony and other evidence presented at trial, a

jury could have found the following facts.

      The City of Calamus water system serves approximately 400

residents and an additional 350 people when the elementary school

located in the city is in session. In November 2007, the Calamus water

system included a 128-foot tall water tower and a reservoir tank.

      Duane Levien managed public works for Calamus.                In that

position, Levien oversaw the water system for Calamus. Levien checked,

recorded, and refilled the chlorine, phosphate, and residual levels within

the water supply daily. He also measured the amount of water pumped

daily and maintained the necessary paperwork for the State.          Levien

usually injected about a half gallon of chlorine into the water system a

day, but if he was in the process of “shocking the system,” he could

“dump a hundred pounds of granule in . . . just a matter of twenty

minutes.”

      On the morning of Monday, November 12, 2007, Levien was

approached by an unnamed citizen and handed a printout from an

internet website known as “freeworldkgb.”       The printout was of a

slideshow entitled “Target for Tonight.”     The first slide contained a

photograph of the Calamus water tower with the text, “I am thinking that

if we drop enough Thorizine (sic) in the city water supply it might calm

the population down enough so that they wont (sic) call us n-----s

anymore, or dumb Jew n-----s.” The second slide had a photograph of a

toad and said that “with his help, freeworldkgb has procured 500 pounds

of Thorizine (sic).” Subsequent slides contained candid photographs of

three city residents with various comments, including a statement, “I
                                         4

have decided that they could use some medication.” It was stipulated

that the “freeworldkgb” website belonged to Soboroff.

      Levien knew Soboroff as someone who had both made and been

the subject of numerous complaints within the community. Levien had

signed a petition to have Soboroff civilly committed in June or July 2007.

It was also fairly common knowledge in Calamus that “freeworldkgb” was

Soboroff’s website.

      Levien believed that “Target for Tonight” was a reference to the

previous night. He contacted the Clinton County Sheriff’s Office and the

regional field office for the Iowa Department of Natural Resources.

Levien then flushed the entire Calamus water system and drained all of

the water out of the tower and the reservoir tank, a process that took

approximately five to six hours.         Levien did not take a sample of the

water to test whether any Thorazine had actually been placed into the

water tower or the reservoir tank.

      Clinton County Deputy Tom Christoffersen responded to Levien’s

initial call.   After being shown the slideshow printout, Deputy

Christoffersen went to speak with Soboroff at his residence in Calamus.

Deputy Christoffersen recorded his conversation with Soboroff using the

audio from his in-car camera. This recording was played for the jury.

The recording began with Soboroff stating, “I’m not f---ing around with

anybody    anymore.        I’m   tired   of   these   a--holes.”   When   Deputy

Christoffersen later disclosed that someone had made a complaint,

Soboroff said, “F---’em! I put that on there to irritate them, and I’m glad

they’re irritated.” The recording then ended with Soboroff stating that he

did not believe he had crossed the line and, if the sheriff’s office did, they

could call his attorney.
                                           5

        On November 14, 2007, a search warrant was executed at

Soboroff’s residence. Soboroff was present and recorded the events with

a handheld video camera. Later, he posted the recording on the internet,

and it was played for the jury as well.               During the video, Soboroff

acknowledged twice that the officers were looking for 500 pounds of

Thorazine.     When the officers informed Soboroff they were seizing his

computer, Soboroff questioned why, and then stated, “Look, that is a

satirical article, that’s all that that is.”          The background image on

Soboroff’s computer was a picture of the Calamus water tower.                       The

officers did not find any Thorazine during the search.

        On November 20, 2007, the State charged Soboroff by trial

information with threats in violation of Iowa Code section 712.8. 1                  On

March 7, 2008, Soboroff moved to dismiss the trial information on the

ground there was no evidence in the minutes of testimony that he had

made a threat involving “any incendiary or explosive device or material,

or any destructive substance or device in any place where it will

endanger persons or property” as required by section 712.8. The district

court denied the motion, ruling that it was untimely and, alternatively,

that section 712.8 was not limited to incendiary or explosive types of
devices and materials. The case proceeded to trial on March 10 and 11,

2008.

        In addition to presenting the testimony of Levien and the two

sheriff’s deputies who had handled the investigation, the State also

introduced the testimony of a pharmacist, Cynthia Ryan. Ryan testified

that Thorazine is a psychotropic drug commonly used to treat mental or

mood disorders, especially schizophrenia. She stated the common side

        1The  State also charged Soboroff with unlawful possession of a prescription drug
in violation of Iowa Code section 155A.21, but this charge was dismissed before trial.
                                    6

effects for Thorazine include drowsiness, dizziness, blurred vision, and

constipation, with less common side effects including a malignant

syndrome that can cause a high temperature, muscle rigidity, irregular

heartbeats, tardive dyskinesia (involuntary muscle spasms), and possibly

even death. Ryan testified it would be impossible to predict what would

happen if Thorazine were added to a city’s water supply, but it was her

opinion that “any use of a drug that is improper I would consider

dangerous . . . .   Drugs are only appropriate when prescribed for a

particular patient for a particular condition.”    Ryan further testified

Thorazine is not a controlled substance, but is restricted to “purchase by

order of prescription.” Ryan estimated that a single prescription would

provide about 30 tablets of Thorazine ranging from 10 to 100 milligrams.

Ryan further opined that it would be “near impossible” to obtain 500

pounds of Thorazine even with a relatively long period of time to do so.

      After the State rested its case, Soboroff’s counsel moved for a

judgment of acquittal, renewing his arguments in the motion to dismiss

and asserting there was “no evidence presented by the State” to establish

the alleged threat involved a substance covered by section 712.8. The

district court denied the motion. After further discussion, the following

dialogue ensued:
      MR. VILMONT:      And are we to conclude, Your Honor, that
      the State has proven in this case up to this point in time that
      Thorazine is a destructive substance?
      THE COURT:         The Court finds the State has provided
      sufficient evidence to make a prima facie case so that the
      jury should consider the issue, yes.

      Soboroff then took the stand in his own defense and testified in a

rambling way. Soboroff maintained that the slideshow was “a story” and

“a metaphor.” Soboroff gave the jury the following explanation for why

he had posted the slideshow:
                                     7
            I wrote this story about a toad who is down at the river
      mourning the loss of his friend because some individual,
      either an adult or a child, took a firecracker, put it in the
      animal’s cloaca and blew it up. Now I – I like animals. One
      of my things in college was herpetology. I saw this there.
      My dog – I got this Rottweiler who wouldn’t hurt a soul, and
      he’s there, and he’s looking at this thing blown up, and he’s
      looking at me, and he’s just really puzzled.
            This was right after I got out – out of Mercy Hospital.
      And I’m sitting on my stoop, and out comes Mr. Toad. And
      he would sit with me at night, and I started imagining this
      dialogue between me and Mr. Toad. And Mr. Toad wants to
      get even for the death of his friend . . . .

      Soboroff further testified that he used the title “Target for Tonight”

because “Toads come out at night.”       Soboroff also stated that he had

suffered a closed head injury and for the last twelve years had been

seeing a psychologist, Dr. Frank Gersch, but had not been prescribed

any medications by him.

      The case was submitted to the jury.             In the marshalling

instruction, the jury members were told they had to find the following

elements to convict Soboroff:
      1. On or about November 12, 2007, Defendant threatened to
         place a destructive substance in the water supply for the
         city of Calamus, Iowa.
      2. The destructive substance was of a type that would
         endanger persons or property.
      3. Defendant made the threats willfully and unlawfully.

      A jury instruction, to which Soboroff objected, defined “destructive”

as meaning “damaging, harmful, detrimental or injurious.”          Another

instruction, to which Soboroff did not object, defined “threaten” to mean

“intimidate, bully, pressure, menace, warn, terrorize or make threats.”

      On March 11, 2008, the jury returned a guilty verdict. Soboroff

was sentenced to a term of incarceration not to exceed five years. See

Iowa Code § 902.9(5). The sentence was suspended, and Soboroff was

placed on probation for two years. See id. § 907.3(3).
                                      8

      Soboroff appeals.     He contends there is insufficient evidence to

sustain his conviction because section 712.8, which is part of the “arson”

chapter of the Iowa Code (chapter 712), applies only to threats or

attempts involving materials that might cause fires or explosions, not to

materials whose harmful effects occur when they are consumed within

the human body.       He further alleges his counsel was ineffective for:

(1) failing to move for a judgment of acquittal on the grounds that the

State failed to prove Soboroff made a “true threat,” i.e., a threat that

would have been interpreted by a reasonable person as such; (2) failing

to request a jury instruction defining the legal requirements of a “true

threat”; and (3) failing to call Dr. Gersch as a witness.

      II. Standard of Review.

      We review challenges to the sufficiency of the evidence for the

correction of errors at law.    State v. Hennings, 791 N.W.2d 828, 832

(Iowa 2010). We will uphold the jury’s verdict if supported by substantial

evidence.      State v. McCullah, 787 N.W.2d 90, 93 (Iowa 2010).

“Substantial evidence is evidence that ‘would convince a rational trier of

fact the defendant is guilty beyond a reasonable doubt.’ ” Id. (quoting

State v. Jorgensen, 758 N.W.2d 830, 834 (Iowa 2008)).            We view the

evidence in the light most favorable to the State, including all legitimate

inferences and presumptions that may fairly and reasonably be deduced

from the record. Hennings, 791 N.W.2d at 832–33. The evidence must

at least raise a fair inference of guilt and do more than raise mere

suspicion, speculation, or conjecture. McCullah, 787 N.W.2d at 93. To

the   extent   the   insufficiency   claim   involves   the   district   court’s

construction of a statute, our review remains for the correction of errors

at law. Id.
                                     9

      III. Applicability of Section 712.8 to Thorazine in Drinking

Water.

      Iowa Code section 712.8 provides:
            Any person who threatens to place or attempts to
      place any incendiary or explosive device or material, or any
      destructive substance or device in any place where it will
      endanger persons or property, commits a class “D” felony.

      Soboroff maintains he did not violate section 712.8 because

Thorazine is not a “destructive substance.” Soboroff insists that the term

“destructive substance” as used in the second part of section 712.8
should be limited to items that might be used to commit the crime of

arson as defined in section 712.1. He urges that “destructive substance”

should be construed as something similar to “incendiary or explosive”

material as referenced in the first part of section 712.8. By contrast, the

State argues Thorazine was a “destructive substance or device” in this

case because it could ruin the water supply and endanger people.

      The primary goal in interpreting a statute is to ascertain and give

effect to the legislature’s intent. State v. Anderson, 782 N.W.2d 155, 158

(Iowa 2010).   When determining legislative intent, we look first to the

language of the statute.   State v. Sluyter, 763 N.W.2d 575, 581 (Iowa

2009).   We also consider “ ‘the statute’s “subject matter, the object

sought to be accomplished, the purpose to be served, underlying policies,

remedies provided, and the consequences of various interpretations.” ’ ”

State v. Dohlman, 725 N.W.2d 428, 431 (Iowa 2006) (quoting Cox v. State,

686 N.W.2d 209, 213 (Iowa 2004)). Legislative intent is gleaned from the

words chosen by the legislature, not what it should or might have said.

State v. Stone, 764 N.W.2d 545, 549 (Iowa 2009).         When a statutory

definition is absent, “ ‘[w]e may refer to prior decisions of this court and

others, similar statutes, dictionary definitions, and common usage’ to
                                       10

determine its meaning.” State v. Shanahan, 712 N.W.2d 121, 142 (Iowa

2006) (quoting State v. Kellogg, 542 N.W.2d 514, 516 (Iowa 1996)).

      We assess a “ ‘statute in its entirety, not just isolated words or

phrases,’ and we will seek to interpret it so that no part of it is rendered

redundant or irrelevant.” McCullah, 787 N.W.2d at 94 (quoting State v.

Gonzalez, 718 N.W.2d 304, 308 (Iowa 2006)).             We strive for “ ‘an

interpretation that is reasonable, best achieves the statute’s purpose,

and avoids absurd results.’ ”       State v. Spencer, 737 N.W.2d 124, 130

(Iowa 2007) (quoting State v. Bower, 725 N.W.2d 435, 442 (Iowa 2006)).

      The General Assembly has not told us what they meant by

“destructive substance or device.” But the word “destructive” is broad. It

is defined by one dictionary as “having the capability, property, or effect

of destroying.” Webster’s Third New International Dictionary 615 (unabr.

ed. 2002). “Destroy” is then defined as: “to ruin the structure, organic

existence, or condition of.” Id.

      Many things are thus potentially “destructive.” The statute does

not limit the definition to substances that cause harm through a

chemical reaction outside the human body, as opposed to a metabolic

reaction within it. Destruction can result from contamination as well as

from burning or wrecking.          See 18 U.S.C. § 31(a)(3) (2006) (defining

“destructive substance” to mean “an explosive substance, flammable

material, infernal machine, or other chemical, mechanical, or radioactive

device or matter of a combustible, contaminative, corrosive, or explosive

nature”) (emphasis added); United States v. Jones, 308 F.3d 748, 749–50

(7th Cir. 2002) (holding that real anthrax spores would have been a

“destructive substance” within the meaning of this statute and, therefore,

an individual who staged phony anthrax incidents violated the federal

“Bomb Hoax Act”).
                                    11

      Soboroff’s argument also runs contrary to the principle that we try

to avoid construing statutory language as superfluous.           See Iowa

Code § 4.4(2); State v. Pickett, 671 N.W.2d 866, 870 (Iowa 2003) (stating

statutes are interpreted in a manner to avoid rendering any part of the

enactment superfluous). If the second part of section 712.8 were limited

to the kinds of materials covered by the first part, there would be no need

for it. In fact, the second part is worded as an alternative to the first

part. Threats involving “any incendiary or explosive device or material, or

any destructive substance or device,” are prohibited. Iowa Code § 712.8

(emphasis added); Cole v. Laucamp, 213 N.W.2d 532, 535 (Iowa 1973)

(“[T]he word ‘or’ . . . has a commonly accepted and well-known meaning.

In ordinary usage it signifies an alternative . . . .”). Hence, we do not

discern within the statutory language a basis for limiting its scope to

materials that might cause fires or explosions; rather, we see the

opposite. Some materials are destructive but not incendiary or explosive;

some incendiary materials might not be considered destructive; but

regardless, the legislature intended that all be covered when there was a

threat or attempt to place them in a location where they would endanger

persons or property.

      It is true that section 712.8 is part of a chapter entitled “Arson,”

and what Soboroff did would not have been considered a threat to

commit common law arson. Veverka v. Cash, 318 N.W.2d 447, 450 (Iowa

1982) (noting that the common law definition of arson required a “willful

and malicious burning”). Section 712.8’s presence in the arson chapter,

however, is largely a historical accident. When the threats statute was

first enacted in 1967, it was placed in chapter 697, entitled, “Injuries by

Explosives—Bomb Threats.” See 1967 Iowa Acts ch. 412, § 2 (codified at

Iowa Code § 697.7 (1971)).    Later, during the complete revision of the
                                         12

Iowa Criminal Code effective January 1, 1978, the threats statute was

modified and moved to the arson chapter. 1976 Iowa Acts ch. 1245, ch.

1, § 1208 (codified at Iowa Code § 712.8 (Supp. 1977)). 2

       Thus, the present arson chapter (712) includes not only sections

712.1 through 712.6, which appear to be arson-related laws that address

only fires, explosions, and “incendiary or explosive” materials and

devices, but also sections 712.7 and 712.8, covering “false reports” and

“threats.” Unlike the preceding provisions in chapter 712, sections 712.7

and 712.8 apply to materials that are “destructive,” as well as those that

are “incendiary or explosive.”         If anything, the difference in wording

between sections 712.1 through 712.6, on the one hand, and sections

712.7 and 712.8, on the other, not to mention their separate ancestry,

supports a broader interpretation of the latter provisions.

       For these reasons, we agree with the district court that section

712.8 can cover a threat to put large quantities of a psychotropic drug

into a town’s water supply. This kind of threat, like a threat to release

radioactive—but not incendiary or explosive—matter, can be viewed by a

fact finder as involving a “destructive substance.” Substantial evidence

therefore supports a jury finding that Soboroff’s statements on his

website related to the placement of a destructive substance in a place

where it would endanger people.




       2Because   of this history, we believe it would be inappropriate to draw an
inference about what section 712.8 means from the chapter in which it is located. Cf.
Rolfe State Bank v. Gunderson, 794 N.W.2d 561, 567 (Iowa 2011) (expressing the view
that a provision added to a division of the Iowa Banking Act dealing with bank mergers
was meant to apply to bank mergers and not to bank transactions more generally).
                                   13

      IV. Sufficiency of Evidence that Soboroff Made a “True

Threat.”

      Soboroff next argues his counsel was constitutionally ineffective

when he failed to move for a judgment of acquittal on the ground that the

evidence failed to show his website communications were a “true threat,”

i.e., “understandable as a threat by a reasonable person of ordinary

intelligence.” State v. Milner, 571 N.W.2d 7, 10 (Iowa 1997). Soboroff

must make this appellate argument under the ineffective assistance

rubric because, although his counsel argued for a judgment of acquittal

based on the lack of a “destructive substance,” his motion in the district

court did not claim the absence of a “true threat.” See State v. Crone,

545 N.W.2d 267, 270 (Iowa 1996) (holding a motion for judgment of

acquittal does not preserve error when counsel does not make reference

to the specific elements of the crime on which the evidence was claimed

to be insufficient). Before us, Soboroff now contends that no reasonable

juror could conclude he had made a “true threat” and that his slideshow

was not meant to be taken seriously.

      To establish ineffective assistance of counsel, Soboroff must

demonstrate by a preponderance of the evidence: (1) his counsel failed to

perform an essential duty, and (2) prejudice resulted.    State v. Vance,

790 N.W.2d 775, 785 (Iowa 2010); see also Strickland v. Washington, 466

U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984).

      Generally, claims of ineffective assistance of counsel are preserved

for postconviction relief proceedings. State v. Biddle, 652 N.W.2d 191,

203 (Iowa 2002). We do this so an adequate record of the claim can be

developed and the attorney charged with providing ineffective assistance

may have an opportunity to respond to defendant’s claims. Id. However,

if we determine the record is adequate, we may resolve the claim on
                                      14

direct appeal. State v. Johnson, 784 N.W.2d 192, 198 (Iowa 2010). We

believe the record is adequate to address this claim. We decide de novo

whether Soboroff’s trial counsel was constitutionally ineffective. State v.

Canal, 773 N.W.2d 528, 530 (Iowa 2009).

      In Milner, we were called upon to review section 712.8 in the

context of an angry citizen who had been denied unemployment benefits

and repeatedly said he would drive his truck to the Department of

Employment Services Office and blow it up.          571 N.W.2d at 9.       The

incident occurred shortly after the 1995 Oklahoma City bombing and

Milner at one point referred to that bombing. Id. In upholding Milner’s

conviction for violating section 712.8, we held the statute covered only

“true threats,” that is, statements that would be viewed as a threat by a

reasonable person of ordinary intelligence when the statement is viewed

in light of the surrounding circumstances. Id. at 10. We made clear that

the statute “does not reach expressions that a reasonable person would

understand as a joke, idle talk, or mere statements of political

hyperbole.”   Id.   In addition to finding sufficient evidence to support

Milner’s   conviction,   we   also   held   that   section   712.8   was   not

constitutionally infirm, since it extended only to “true threats” and such

threats were not protected by the First Amendment. Id. at 13–14.

      We do not believe Soboroff’s trial counsel failed to perform an

essential duty here. Even if he had moved for a judgment of acquittal on

the ground that his client had not made true threats, the motion would

have had to be denied.        In this case, the State presented “sufficient

evidence for a reasonable jury to find ‘a reasonable person of ordinary

intelligence would interpret [Soboroff’s] statement as a threat . . . in light

of the surrounding circumstances.’ ”        State v. Lane, 743 N.W.2d 178,

183–84 (Iowa 2007) (quoting Milner, 571 N.W.2d at 10).
                                     15

      Although Soboroff claimed at trial that his “Target for Tonight”

slideshow was not to be taken literally, a reasonable jury could have

found otherwise.    The initial slide showed a photograph of the water

tower with a specific comment about contaminating the city water supply

with Thorazine.     Next, there was a photograph of a toad with an

indication that “with his help [Soboroff] has procured 500 pounds of

Thorizine (sic).”   The toad photograph could have been viewed as a

reference to a confidential source of the material. Several candid shots of

citizens followed, with the last slide including the statement, “I have

decided that they could use some medication.”            The State’s most

compelling piece of evidence, perhaps, was Levien’s testimony that, after

he saw the slideshow, he flushed out the city’s entire water supply, a

process that took five to six hours. This shows, at a minimum, that he

took the threat seriously.

      Hence, the district court properly submitted the section 712.8

charge to the jury, and Soboroff’s counsel was not ineffective for failing to

move to acquit on the ground that a reasonable person could not have

viewed Soboroff’s statements as a threat.       See State v. Dudley, 766

N.W.2d 606, 620 (Iowa 2009) (“[C]ounsel has no duty to raise an issue

that has no merit.”).

      V. Jury Instruction Defining “Threat.”

      Soboroff also contends his counsel was ineffective for not

requesting a jury instruction that defined threat and made it clear to the

jury that he could be found guilty only if he committed a “true threat.”

The State concedes that such an explanation should have been provided

to the jury.   However, it argues that Soboroff did not suffer prejudice,

because the evidence that a reasonable person would view Soboroff’s

statements as a threat was overwhelming.
                                        16

        We disagree. While there was substantial evidence of a real threat,

there was also evidence from which a jury could have concluded that

Soboroff’s statements were “idle talk.” Milner, 571 N.W.2d at 10. The

State’s own expert testified that Thorazine is available only by

prescription and in small quantities. It would be “near[ly] impossible” to

obtain 500 pounds of it. Someone who claimed to have such a quantity

might not have deserved to be taken seriously.            Also, there was no

evidence that Soboroff intentionally disseminated his statements to

anyone, apart from putting them on his website. And, although it is a

double-edged sword, Soboroff’s reputation for instability could have

supported a jury finding that a reasonable person would not take his

statements seriously (although it could have potentially warranted the

opposite conclusion).       In short, had the jury been instructed on the

“reasonable person” standard for illegal threats, we think there is a

reasonable probability the outcome of Soboroff’s trial would have been

different. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at

698; State v. Palmer, 791 N.W.2d 840, 850 (Iowa 2010) (noting also that

the reasonable probability test for prejudice requires only a showing that

the probability of a different result is “sufficient to undermine confidence

in the outcome”) (quoting Strickland).

        Accordingly, we hold that Soboroff received ineffective assistance of

counsel when his attorney failed to request an instruction that defined

“threats” for the jury as statements that would be understandable by a

reasonable person of ordinary intelligence as threats, in light of the

surrounding circumstances. Milner, 571 N.W.2d at 10. Because section

712.8    criminalizes   a    category   of   speech,   without   any   conduct

requirement, see id. at 13 (noting that section 712.8 targets speech), it is

important for the jury to be advised of its limited, proper scope. This
                                           17

insures that defendants will be found guilty only for making statements

not protected by the First Amendment. Id. at 13–14 (stating “the First

Amendment does not protect speech that constitutes a true threat” and,

when interpreted as limited to true threats, section 712.8 is not

overbroad). Our views on this subject coincide with those of a number of

other jurisdictions.      See State v. Cook, 947 A.2d 307, 317–18 (Conn.

2008) (finding the omission of a “true threat” instruction required

remand for new trial to ensure punishment was not based on

constitutionally protected speech); State v. Martins, 102 P.3d 1034,

1042–43 (Haw. 2004) (same); Abbott v. State, 989 A.2d 795, 823–26 (Md.

Ct. Spec. App. 2010) (same); State v. Schaler, 236 P.3d 858, 865–67

(Wash. 2010) (same); State v. Perkins, 626 N.W.2d 762, 772–73 (Wis.

2001) (same). We therefore reverse Soboroff’s conviction and remand for

a new trial. 3

         VI. Conclusion.

         For the foregoing reasons, we find sufficient evidence to sustain

Soboroff’s conviction for making threats in violation of section 712.8.

However, because the jury was not instructed that the threats had to be

understandable by a reasonable person of ordinary intelligence as such,
Soboroff received ineffective assistance of counsel and is entitled to a new

trial.

         REVERSED AND REMANDED FOR NEW TRIAL.




         3Soboroff
                 also argues on appeal that his counsel was ineffective for not calling as
a witness Dr. Gersch, Soboroff’s attending psychologist. In light of our disposition of
the appeal, we need not reach this claim.
