               IN THE SUPREME COURT OF IOWA
                               No. 13–1403

                          Filed February 27, 2015

                          Amended May 7, 2015

STATE OF IOWA,

      Appellee,

vs.

MAX V. THORNDIKE,

      Appellant.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Scott County, Henry W.

Latham II, Judge.



      Defendant appeals his conviction for lascivious acts with a child

pursuant to Iowa Code section 709.8, claiming ineffective assistance of

counsel under the Sixth Amendment to the United States Constitution

and article I, section 10 of the Iowa Constitution. DECISION OF COURT

OF APPEALS AND JUDGMENT OF DISTRICT COURT AFFIRMED.



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

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Tyler J. Buller, Assistant

Attorney General, Sean M. Corpstein, Student Legal Intern, Michael J.

Walton, County Attorney, and Jerald Feuerbach, Assistant County

Attorney, for appellee.
                                     2

ZAGER, Justice.

      Max Thorndike appeals his conviction for two counts of sexual

abuse in the second degree pursuant to Iowa Code section 709.3 (2013),

and one count of lascivious acts with a child pursuant to Iowa Code

section 709.8. He maintains there was insufficient evidence to support

the jury’s finding that he committed sex acts with the minor victims.

Further, he asserts the district court erred in denying his motion for new

trial because it applied the incorrect legal standard in concluding the

weight of the evidence supported his convictions.      He also asserts the

district court abused its discretion in concluding the weight of the

evidence supported his convictions.       Finally, he maintains his trial

counsel was ineffective in failing to object to the lascivious-acts jury

instruction he claims was not supported by sufficient evidence.          We

transferred the case to the court of appeals, which affirmed the

convictions. Thorndike applied for further review, which we granted.

      When we grant further review of a decision of the court of appeals,

we have discretion to select issues for our consideration. See Iowa R.

App. P. 6.1103(1)(d).      In this appeal, we consider only whether

Thorndike’s trial counsel was ineffective in failing to object to the

lascivious-acts jury instruction he claims was not supported by sufficient

evidence.   Therefore, we let the court of appeals’ affirmance on the

remaining issues stand as the final decision of this court. See State v.

Clay, 824 N.W.2d 488, 494 (Iowa 2012).        With respect to Thorndike’s

claim that trial counsel was ineffective in failing to object to the

lascivious-acts jury instruction, we conclude Thorndike has failed to

establish he suffered prejudice as a result of counsel’s failure to object to

the instruction. We affirm the decision of the court of appeals and the

judgment of the district court.
                                      3

      I. Background Facts and Proceedings.

      In December 2012, Thorndike was living with his son, Joseph,

Joseph’s girlfriend, Tiffany, and their four-year-old son, N.T., in a duplex

located in Davenport, Iowa. On the evening of December 15, Joseph and

Tiffany attended a graduation party along with their friends, A.C. and

M.C., and Thorndike. While at the party, the adults had arranged for a

babysitter to care for N.T. and the friends’ twin daughters, Jo.S. and

Ja.S. Jo.S. and Ja.S. were six years old at the time.

      While at the party, Joseph received a phone call from his landlord

who lived in the other half of the duplex. The landlord told Joseph the

children were being loud and it sounded like N.T. was out of control. The

adults convened to discuss the issue.     Ultimately, it was decided that

Thorndike would return to the duplex to calm the children. Thorndike

then left the party and returned to the duplex. A.C. and M.C. left the

party at approximately 2:00 a.m. so that M.C. could attend to a work-

related matter.   The couple then returned to their home.        The twins

stayed at the duplex for the night.

      The next morning, M.C. went to the duplex to pick up the twins.

On the ride home, the twins told M.C. they needed to tell him something.

The twins then informed M.C. that after Thorndike had returned from

the party the previous night, he had entered Joseph and Tiffany’s room

where they were sleeping and made each of them touch his “private

part.” The police were contacted soon thereafter.

      The State charged Thorndike with two counts of sexual abuse in

the second degree pursuant to Iowa Code section 709.3 and one count of

lascivious acts with a child pursuant to Iowa Code section 709.8.

Thorndike entered a plea of not guilty to each of the charges.
                                      4

       At trial, both Ja.S. and Jo.S. testified that on the evening in

question, Thorndike came into the room in which they were sleeping,

walked to the sides of the bed, and briefly made each of them touch his

“private part.” Neither twin testified that Thorndike touched their genital

or pubic regions, and the State presented no other evidence to that effect

at trial.

       After the close of evidence, the district court provided the jury with

the following instruction, quoted in relevant part, regarding the charge of

lascivious acts with a child:

       [T]he State must prove each of the following elements of
       Lascivious Acts with a Child:

            1. On or about the 15th day of December, 2012, the
       Defendant, with or without Ja.S. or Jo.S’s consent:

                   (a) fondled or touched the pubes or genitals of
             Ja.S. or Jo.S.; or

                   (b) permitted or caused Ja.S. or Jo.S to fondle or
             touch the Defendant’s genitals or pubes.

             2. The Defendant did so with the specific intent to
       arouse or satisfy the sexual desires of the Defendant or Ja.S.
       or Jo.S.

             3. The Defendant was then 16 years of age or older.

             4. Ja.S. or Jo.S. was under the age of 12 years.

       The jury was further instructed:

              Where two or more alternative theories are presented,
       or where two or more facts would produce the same result,
       the law does not require each juror to agree as to which
       theory or fact leads to his or her verdict. It is the verdict
       itself which must be unanimous, not the theory of facts upon
       which it is based.

       During the State’s closing argument, the attorney for the State

explained to the jury the elements necessary to sustain a conviction for

lascivious acts with a child. Specifically, he stated:
                                           5
        From the evidence in       this case we’re talking late in the
        evening of December        15 . . . [t]hat one of two things
        happened. And here         the first one, (a), probably doesn’t
        apply. We are talking      about the second one, “permitted or
        caused Ja.S. or Jo.S.      to fondle or touch the Defendant’s
        genitalia or pubes.”

        On June 13, 2013, the jury returned its verdicts finding Thorndike

guilty of each of the charged offenses.           With respect to the charge of

lascivious acts with a child, the jury’s verdict was on a general verdict

form.

        Thorndike appealed, and we transferred the case to the court of

appeals. On appeal Thorndike asserted, among other things, that trial

counsel was ineffective in failing to object to the alternative offered in the

lascivious-acts jury instruction 1(a) because the State had failed to

present sufficient evidence to instruct that Thorndike fondled or touched

the pubes or genitals of Ja.S. or Jo.S. Thorndike argued that because

the jury returned its verdict on a general verdict form, there was no way

of knowing on which basis the jury rendered its verdict.                   Therefore,

Thorndike argued, he was entitled to a new trial. The court of appeals

rejected Thorndike’s ineffective-assistance-of-counsel claim. It reasoned

the jury instruction was a correct statement of the law and that

Thorndike had failed to show prejudice even if counsel should have

objected to the instruction.

        Thorndike applied for further review, which we granted.
        II. Standard of Review.

        We review ineffective-assistance-of-counsel claims de novo. Clay,

824 N.W.2d at 494. This is because such claims are grounded in the

Sixth Amendment to the United States Constitution. 1 Id. In a criminal

___________________________________
        1In
          his brief, Thorndike cites both the Sixth Amendment and article I, section 10
of the Iowa Constitution in support of his ineffective-assistance-of-counsel claim.
Thorndike does not argue that we should interpret article I, section 10 differently than
                                         6

case, an ineffective-assistance-of-counsel claim “need not be raised on

direct appeal from the criminal proceedings in order to preserve the claim

for postconviction relief purposes.”         Iowa Code § 814.7(1).     However, a

defendant may raise such a claim on direct appeal if he or she has

“reasonable grounds to believe that the record is adequate to address the

claim on direct appeal.”       Id. § 814.7(2).    Ordinarily, we preserve such

claims for postconviction relief proceedings. Clay, 824 N.W.2d at 494.

“We prefer to reserve such questions for postconviction proceedings so

the defendant’s trial counsel can defend against the charge.”               State v.

Tate, 710 N.W.2d 237, 240 (Iowa 2006). “We will resolve the claims on

direct appeal only when the record is adequate.” Clay, 824 N.W.2d at

494. In this case, the record is adequate for us to address the merits of

Thorndike’s     ineffective-assistance-of-counsel       claim.      See   State   v.

Maxwell, 743 N.W.2d 185, 195 (Iowa 2008) (concluding record was

adequate to address ineffective-assistance-of-counsel claim on direct

appeal when defendant asserted counsel was ineffective in failing to

object to superfluous aiding-and-abetting instruction); State v. Truesdell,

679 N.W.2d 611, 616 (Iowa 2004) (“A claim of ineffective assistance of

trial counsel based on the failure of counsel to raise a claim of

insufficient evidence to support a conviction is a matter that normally

can be decided on direct appeal.”).

       III. Discussion.

       To succeed on a claim of ineffective assistance of counsel, a

claimant must establish by a preponderance of the evidence: “ ‘(1) his

trial counsel failed to perform an essential duty, and (2) this failure

___________________________________
the parallel provisions of the Sixth Amendment. Thus, for purposes of our analysis we
assume that the legal principles governing both provisions are the same. See Simmons
v. State Pub. Defender, 791 N.W.2d 69, 76 n.3 (Iowa 2010).
                                     7

resulted in prejudice.’ ”   State v. Adams, 810 N.W.2d 365, 372 (Iowa

2012) (quoting State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006)); accord

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80

L. Ed. 2d 674, 693 (1984). “Unless a defendant makes both showings, it

cannot be said that the conviction . . . resulted from a breakdown in the

adversary process that renders the result unreliable.”     Strickland, 466

U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Thus, reversal is

warranted only where a claimant makes a showing of both of these

elements. Simmons v. State Pub. Defender, 791 N.W.2d 69, 75–76 (Iowa

2010). If we conclude a claimant has failed to establish either of these

elements, we need not address the remaining element.        See Clay, 824

N.W.2d at 501 n.2 (“The court always has the option to decide the claim

on the prejudice prong of the Strickland test, without deciding whether

the attorney performed deficiently.”).

      Under the first prong, “ ‘we measure counsel’s performance against

the standard of a reasonably competent practitioner.’ ”         Id. at 495

(quoting Maxwell, 743 N.W.2d at 195).        It is presumed the attorney

performed his or her duties competently, and the claimant must

successfully rebut this presumption by establishing by a preponderance

of the evidence that counsel failed to perform an essential duty. Id. We

assess counsel’s performance “objectively by determining whether [it] was

reasonable, under prevailing professional norms, considering all the

circumstances.” State v. Lyman, 776 N.W.2d 865, 878 (Iowa 2010).

      Under the second prong, the claimant must establish that

prejudice resulted from counsel’s failure to perform an essential duty.

Clay, 824 N.W.2d at 496.      The claimant must show “counsel’s errors

were so serious as to deprive [him or her] of a fair trial.” Strickland, 466

U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. A showing that the
                                     8

error “conceivably could have influenced the outcome” of the proceeding

is insufficient. See id. at 693, 104 S. Ct. at 2067, 80 L. Ed. 2d at 697.

Rather, the effect must be affirmatively demonstrated by showing “there

is a reasonable probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different.” Id. at 694, 104

S. Ct. at 2068, 80 L. Ed. 2d at 698; accord King v. State, 797 N.W.2d

565, 572 (Iowa 2011).       “A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Strickland, 466 U.S.

at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.       The claimant must

prove prejudice by a preponderance of the evidence. Clay, 824 N.W.2d at

496. The ultimate question is “whether there is a reasonable probability

that, absent the errors, the factfinder would have had a reasonable doubt

respecting guilt.” Strickland, 466 U.S. at 695, 104 S. Ct. at 2068–69, 80

L. Ed. 2d at 698; accord Lamasters v. State, 821 N.W.2d 856, 866 (Iowa

2012).

      Thorndike argues his trial counsel was ineffective in failing to

object to the lascivious-acts jury instruction, specifically alternative

instruction 1(a), because the State failed to present sufficient evidence to

prove Thorndike fondled or touched the pubes or genitals of Ja.S. or

Jo.S. He maintains that he suffered prejudice because the jury returned

its verdict on a general verdict form such that there is no way of knowing

on which basis the jury rendered its verdict. More specifically, Thorndike

argues there is a reasonable probability the jury found him guilty on the

basis that he fondled or touched the pubes or genitals of Ja.S. or Jo.S.—

a basis not supported by the evidence—instead of on the basis that he

caused Ja.S. or Jo.S to fondle or touch his genitals or pubes—a basis

supported by the evidence.      Because we conclude this case can be
                                    9

decided under the prejudice prong of Strickland, we now turn to this

analysis.

      At the outset, it is important to note that this case comes before us

in the context of an ineffective-assistance-of-counsel claim, as opposed to

a direct appeal objecting to the legality of a jury instruction. Thorndike

is correct in his assertion that on numerous prior occasions we have

stated that “ ‘[w]ith a general verdict of guilty, we have no way of

determining which theory the jury accepted.’ ”     State v. Martens, 569

N.W.2d 482, 485 (Iowa 1997) (alteration in original) (quoting State v.

Hogrefe, 557 N.W.2d 871, 881 (Iowa 1996)); see also, e.g., State v.

Lathrop, 781 N.W.2d 288, 297 (Iowa 2010) (“When circumstances make it

impossible for the court to determine whether a verdict rests on a valid

legal basis or on an alternative invalid basis, we give the defendant the

benefit of the doubt and assume the verdict is based on the invalid

ground.”); State v. Heemstra, 721 N.W.2d 549, 558 (Iowa 2006) (“When a

general verdict does not reveal the basis for a guilty verdict, reversal is

required.”); State v. Pilcher, 242 N.W.2d 348, 354–56 (Iowa 1976) (holding

reversal was required when general verdict did not specify the alternative

upon which the jury based its verdict and one of the alternatives was

unconstitutional); State v. Mays, 204 N.W.2d 862, 865 (Iowa 1973) (“The

present case falls under the principle that an instruction submitting an

issue unsubstantiated by evidence is generally prejudicial.”). However,

as we have previously explained,

            We have made it clear that ineffective-assistance-of-
      counsel claims based on failure to preserve error are not to
      be reviewed on the basis of whether the claimed error would
      have required reversal if it had been preserved at trial.
      Rather, a defendant must demonstrate a breach of an
      essential duty and prejudice. In ineffective-assistance-of-
      counsel claims “the instruction complained of [must be] of
                                     10
      such a nature that the resulting conviction violate[s] due
      process.”

Maxwell, 743 N.W.2d at 196 (alterations in original) (citations omitted)

(quoting State v. Hill, 449 N.W.2d 626, 629 (Iowa 1989)); accord State v.

Tejeda, 677 N.W.2d 744, 754–55 (Iowa 2004) (“It is true that we have

said that an instruction submitting an issue unsubstantiated by

evidence is generally prejudicial. Unlike the case at bar, however, [those

cases] were decided on direct appeal, and not in the ineffective-

assistance-of-counsel context.” (Citations and internal quotation marks
omitted.)); State v. Broughton, 450 N.W.2d 874, 876 (Iowa 1990) (“ ‘[T]he

facial appeal of [the defendant’s argument] . . . is diminished in most

situations where practical considerations make it unlikely that the

inclusion of a particular element in the marshaling instruction would

have produced any difference in the verdict of the jury.’ ” (quoting State

v. Propps, 376 N.W.2d 619, 623 (Iowa 1985))). Thus, given the nature of

Thorndike’s claim, he must affirmatively demonstrate counsel’s alleged

deficiency undermines our confidence in the verdict and therefore

resulted in prejudice entitling him to a new trial, regardless of whether

his claim would require reversal if it were before us on direct appeal. See

Maxwell, 743 N.W.2d at 196–97 (requiring defendant to affirmatively

demonstrate prejudice when counsel failed to object to a superfluous

aiding-and-abetting instruction given to the jury by the district court and

concluding defendant failed to demonstrate the necessary prejudice to

succeed on his ineffective-assistance-of-counsel claim because it was

unlikely the “instruction had any effect on the jury’s decision”).

      As we have previously stated,

            When the submission of a superfluous jury instruction
      does not give rise to a reasonable probability the outcome of
      the proceeding would have been different had counsel not
      erred, in the context of an ineffective-assistance-of-counsel
                                    11
      claim, no prejudice results. Further, when there is no
      suggestion the instruction contradicts another instruction or
      misstates the law there cannot be a showing of prejudice for
      purposes of an ineffective-assistance-of-counsel claim.

Id. at 197 (citation omitted).

      In this case, the alternative offered in the lascivious-acts jury

instruction 1(a) did not contradict another instruction given to the jury
or misstate the law. A person commits the offense of lascivious acts with

a child when he or she, with or without a child’s consent, “[f]ondle[s] or

touch[es] the pubes or genitals of a child,” or “[p]ermit[s] or cause[es] a

child to fondle or touch the person’s genitals or pubes.”       Iowa Code

§ 709.8(1)–(2). This is precisely the instruction the district court gave to

the jury. It was a correct statement of the law.

      Further, even if counsel had objected to the superfluous alternative

offered in the lascivious-acts jury instruction 1(a), we are not convinced

on this record there is a reasonable probability the outcome of the

proceeding would have been different. If trial counsel had objected to the

jury instruction, the district court simply would have removed the

offending language and otherwise provided the same instructions to the

jury. We are confident the jury would have returned the same verdict of

guilty for a number of reasons. First, the record in this case is devoid of

any evidence that would have allowed the jury to find that Thorndike

fondled or touched the pubes or genitals of Ja.S. or Jo.S. Rather, the

only evidence the State presented to the jury was evidence showing

Thorndike caused Ja.S. or Jo.S to fondle or touch his genitals or pubes.

See Maxwell, 743 N.W.2d at 197 (concluding defendant failed to

establish the necessary prejudice to succeed on his ineffective-

assistance-of-counsel claim when the record was “devoid of any evidence”

that would have allowed the jury to find the defendant guilty based on an
                                         12

unsupported alternative).        Second, during closing argument, the State

told the jury alternative 1(a) “probably doesn’t apply” and then stated,

“[W]e are talking about the second one, ‘permitted or caused Ja.S. or

Jo.S. to fondle or touch the Defendant’s genitalia or pubes.’ ” 2               If the

State had presented any evidence to the jury suggesting alternative 1(a)

applied, or made any argument suggesting a conviction on that basis

would be proper, this case would pose a much closer question.                     See

Stromberg v. California, 283 U.S. 359, 368, 51 S. Ct. 532, 535, 75 L. Ed.

1117, 1122 (1931) (recognizing that when one of three alternatives upon

which the jury could base its verdict was invalid and “the State’s attorney

. . . emphatically urged upon the jury that they could convict the

appellant under the [invalid] clause alone,” the likelihood the jury

reached its verdict on an invalid alternative was, as a practical matter,

greater). But here, the State presented no evidence to the jury that could

support a conviction under alternative 1(a).               Likewise, it made no

argument to the jury that the unsupported alternative applied. Rather,

the   State    effectively   removed      that    alternative    from    the    jury’s

consideration during its closing argument.               Under this record, our

confidence in the jury’s verdict is not undermined.

       Based on the record before us, we cannot conclude Thorndike’s

conviction resulted from a breakdown in the adversary process that

renders the result unreliable.         We are confident the jury reached its

verdict on the proper basis and that substantial evidence supports the

verdict.   Thorndike has failed to establish the necessary prejudice to


___________________________________
       2Once the State recognized that one of the alternatives contained in the jury

instruction “probably doesn’t apply,” the better practice would have been to advise the
court and counsel of this fact and have the jury instruction modified to eliminate the
alternative.
                                         13

succeed on his ineffective-assistance-of-counsel claim. Thus, Thorndike

has failed to prove he received ineffective assistance of counsel.

         IV. Conclusion.

         We conclude that Thorndike has failed to establish he suffered

prejudice as a result of counsel’s failure to object to the lascivious-acts

jury     instruction,   specifically   alternative   instruction   1(a).   Thus,

Thorndike’s ineffective-assistance-of-counsel claim must fail. We affirm

the decision of the court of appeals and the judgment of the district

court.

         DECISION OF COURT OF APPEALS AND JUDGMENT OF

DISTRICT COURT AFFIRMED.
