                   IN THE COURT OF APPEALS OF IOWA

                                      No. 14-0272
                                 Filed March 25, 2015


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

RHONDA RENEE MCGEE,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Wapello County, Lucy J. Gamon

(trial) and E. Richard Meadows Jr. (sentencing), Judges.



      Rhonda McGee appeals from the guilty verdict and sentence on a charge

of conspiracy to manufacture methamphetamine. AFFIRMED.



      J. Keith Rigg, Des Moines, for appellant.

      Thomas J. Miller, Attorney General, Heather Ann Mapes, Assistant

Attorney General, Lisa Holl, County Attorney, and Ashley Corkery, Assistant

County Attorney, for appellee.



      Considered by Danilson, C.J., and Potterfield and Bower, JJ.
                                          2


POTTERFIELD, J.

      Rhonda McGee appeals from the guilty verdict and sentence on a charge

of conspiracy to manufacture more than five grams of methamphetamine in

violation of Iowa Code sections 124.401(1)(b)(7) and 706.1 (2013).

      I. Factual and Procedural Background

      Sergeant Mark Milligan was an investigator for the Southeast Iowa

Interagency Drug Task Force from 2010 to 2012.        He primarily investigated

methamphetamine cases and worked on several cases involving conspiracies to

manufacture. Rhonda McGee came under his scrutiny based on information

received throughout his investigations. Milligan began to search for patterns in

McGee’s purchasing history in the National Precursor Log Exchange (NPLEx)

system, which tracks individuals’ purchases of pseudoephedrine, commonly used

to manufacture methamphetamine.

      Based on his review of McGee’s purchasing records, he suspected she

was involved in a larger conspiracy to manufacture methamphetamine with

numerous other pseudoephedrine buyers. He began to conduct interviews with

McGee and her suspected coconspirators. McGee denied any criminal activity

and maintained that she purchased over-the-counter medications containing

pseudoephedrine to treat her allergies.

      Through Milligan’s investigation, he came to believe approximately twenty

people were involved in the conspiracy, purchasing pseudoephedrine and
                                             3


supplying it to McGee who would in turn use it manufacture methamphetamine.

McGee was charged with conspiracy to manufacture.1

       At trial, Milligan testified about his investigation. During his testimony, he

described some of his interviews with McGee’s alleged coconspirators and some

statements two of those alleged coconspirators—Samantha McDonald and

Rebecca Pinegar—made to him. He also testified that, in his opinion, the acts of

McGee and her alleged coconspirators were consistent with those of other

members of similar conspiracies and he believed McGee to be engaged in a

conspiracy.     He testified that the NPLEx records showed McGee regularly

purchased pseudoephedrine at the same time and place as other purchasers

allegedly involved in the conspiracy. He offered testimony as to the amount of

methamphetamine that could be produced from an amount of pseudoephedrine.

McGee’s trial counsel objected to most of these aspects of his testimony, but the

objections were overruled.

       The jury returned a guilty verdict and answered the verdict interrogatory as

to quantity indicating more than five grams. McGee was sentenced accordingly.

She now appeals.




1
  Iowa Code section 124.401(1) provides:
        [I]t is unlawful for any person to manufacture . . . a controlled substance,
        a counterfeit substance, or a simulated controlled substance, or to act
        with, enter into a common scheme or design with, or conspire with one or
        more other persons to manufacture . . . a controlled substance, a
        counterfeit substance, or a simulated controlled substance.
Iowa Code section 706.1 provides, “A person commits conspiracy with another if, with
the intent to promote or facilitate the commission of a crime . . . , the person . . . agrees
with another that they or one or more of them will engage in conduct constituting the
crime . . . .”
                                        4


      II. Standard of Review

      McGee asserts the district court erred in its ruling permitting Milligan to

testify to statements made by alleged coconspirators during his investigatory

interviews.    McGee claims the statements were impermissible hearsay.        We

review a district court’s hearsay determinations for correction of errors at law.

State v. Dullard, 668 N.W.2d 585, 589 (Iowa 2003).

      McGee next asserts the district court abused its discretion in admitting

Milligan’s testimony as to his opinion on the existence of a conspiracy.      We

review challenges to the admissibility of evidence for an abuse of discretion.

State v. Price, 692 N.W.2d 1, 3 (Iowa 2005). An abuse of discretion occurs when

a court exercises its discretion on grounds or for reasons clearly untenable or to

an extent clearly unreasonable. See State v. Helmers, 753 N.W.2d 565, 567

(Iowa 2008).

      Lastly, McGee asserts she was prejudiced by the ineffective assistance of

her trial counsel insofar as counsel failed to properly handle the issue of

evidence in the record regarding the quantity of methamphetamine allegedly

manufactured.     We review ineffective-assistance-of-counsel claims de novo.

King v. State, 797 N.W.2d 565, 570 (Iowa 2011).

      III. Discussion

      A. Hearsay—Statements by Alleged Coconspirators

      1. Admissibility.    McGee’s first claim concerns Milligan’s testimony

regarding statements made by alleged coconspirators to Milligan during

interviews. He testified over defense counsel’s objection:
                                        5


      [B]oth Samantha McDonald and Rebecca Pinegar stated that they
      had been to the store. . . . [T]hey stated that they had been to the
      store with Rhonda McGee, that they had purchased
      pseudoephedrine with Rhonda McGee while at the store, and then
      in turn provided that pseudoephedrine to Miss McGee. And Miss
      Pinegar even stated to the extent that she received
      methamphetamine from Rhonda McGee for the pseudoephedrine
      that she had purchased.

McGee argues the district court erred in admitting this testimony, which she

asserts is inadmissible hearsay. Both Pinegar and McDonald testified at trial—

Pinegar as a State’s witness and McDonald as a defense witness.

      Hearsay is “a statement, other than one made by the declarant while

testifying at the trial . . . offered in evidence to prove the truth of the matter

asserted,” and it is inadmissible. Iowa R. Evid. 5.801(c), 5.802. However, some

statements fall outside the definition of hearsay and may be admissible, including

“statement[s] by a coconspirator of a party during the course and in furtherance

of the conspiracy.” Id. 5.801(d)(2)(E). Additionally, a statement is not hearsay

when it is not offered to establish the truth of the matter asserted but instead

offered for some other permissible purpose. See Dullard, 668 N.W.2d at 589–90.

      The district court admitted Milligan’s testimony, describing McDonald’s

and Pinegar’s statements as “statements by coconspirators during the course

and in furtherance of the conspiracy.” However, McGee argues—and the State

concedes—that the statements at issue were not made in furtherance of the

conspiracy as the rule requires.     Both McDonald and Pinegar made their

statements while in custody and with the knowledge that Milligan was a law

enforcement officer questioning them about their involvement in a conspiracy.

Their statements clearly did not serve the purpose of furthering the alleged
                                         6


conspiracy.   Therefore, the district court erred in admitting the out-of-court

statements on that basis.

       The State contends the testimony was nevertheless admissible because

the statements were not offered to establish the truth of the matter asserted. The

State argues as the prosecutor argued at trial: the testimony was offered to

demonstrate “the course of Sergeant Milligan’s investigation and . . . how he was

able to connect the coconspirators that he identified in this case.” In other words,

the prosecutor offered Milligan’s testimony as to McDonald’s and Pinegar’s

statements merely to demonstrate the effect it had on Milligan as the listener.

       We must consider “whether the statement is truly relevant to the purpose

for which it is being offered, or whether the statement is merely an attempt to put

before the fact finder inadmissible evidence.” State v. Mitchell, 450 N.W.2d 828,

832 (Iowa 1990). Our supreme court has held a testifying officer may explain a

course of action

       by stating that he did so “upon information received” and this of
       course will not be objectionable hearsay, but if he becomes more
       specific by repeating definite complaints of a particular crime by the
       accused, this is so likely to be misused by the jury as evidence of
       the fact asserted that it should be excluded as hearsay.

State v. Elliot, 806 N.W.2d 660, 668 (Iowa 2011) (citing State v. Doughty, 359

N.W.2d 439, 442 (Iowa 1984)).

       In this case, Milligan’s recounting of specific incriminating statements

made by McDonald and Pinegar go beyond what was necessary to expound

upon the course of his investigation. The jury was so likely to construe that

testimony as evidence of the facts asserted that it was error for the district court

to admit the evidence as though it were submitted not for its truth.
                                          7


       Milligan’s testimony contained impermissible hearsay statements.          The

statements were not coconspirator statements as contemplated by rule

5.801(d)(2)(E). Their admission was not necessary to show their effect upon the

listener, and the risk of jury misuse of the testimony is high. The district court

erred in failing to exclude the statements.

       2. Prejudice. Although we conclude the district court erred by admitting

impermissible hearsay, the error does not require reversal “if the defendant

suffered no prejudice or harm from the admission of inadmissible testimony.”

State v. Brown, 656 N.W.2d 355, 361 (Iowa 2003). We begin by presuming the

error was prejudicial. Elliott, 806 N.W.2d at 669. The presumption is overcome if

“the record shows the hearsay evidence did not affect the jury’s finding of guilt.”

Id.   We look to the record to see if the hearsay evidence was merely

cumulative—i.e. “substantially the same evidence is in the record.” Brown, 656

N.W.2d at 361 (citing State v. Sowder, 394 N.W.2d 368, 372 (Iowa 1986)); see

Elliott, 806 N.W.2d at 669.

       If the hearsay evidence is cumulative, we measure the trustworthiness of

the underlying corroborative evidence as a basis for our determination of the

trustworthiness of the related hearsay evidence.        Elliott, 806 N.W.2d at 669.

Based upon our trustworthiness determinations, we then decide whether the

evidence affected the jury’s ultimate determinations. Id.

       We find Milligan’s hearsay testimony regarding Pinegar’s and McDonald’s

statements was cumulative to their testimony at trial.2


2
 Pinegar’s testimony at trial included the same information as her statements to which
Milligan testified. She testified in relevant part:
                                            8

       McGee asserts the facts in this case are similar to those in State v. Horn,

in which our supreme court found that hearsay evidence, though cumulative, was

not trustworthy.    282 N.W.2d 717, 725 (Iowa 1979).             We find Horn to be

distinguishable.    In Horn, both the hearsay testimony and the corroborating

testimony came from two men, one of whom was charged with the same murder

as the defendant and the other of whom had pleaded guilty to that same murder.

Id. at 724. Both had made deals with the county attorney in exchange for their

testimony and were therefore incentivized to align their testimony. Id. at 725.




                 Q: Have you ever been to the store with [McGee] and she’s
        purchased pseudoephedrine and you’ve purchased pseudoephedrine?
        A: Yes.
                 ....
                 Q: [W]ould that have been at the same time of day? A: Yeah, on
        several occasions we both purchased at the same time.
                 ....
                 Q: [W]hat would you do with your pills then? A: I would leave
        them with her.
                 ....
                 Q: What were they for, the pills you were giving the defendant?
        A: Manufacturing methamphetamine.
                 ....
                 Q: After these occasions when you believed methamphetamine
        was being made, did you smoke it right away? A: [I]t takes a little while to
        dry, so as soon as it was ready.
        Milligan testified to three hearsay statements from McDonald: first, that she went
to the store with McGee; second, that she purchased pseudoephedrine while at the store
with McGee; and third, that she provided pseudoephedrine to McGee. The first two
hearsay statements were corroborated by McDonald herself when she testified on cross
examination:
                 Q: [H]ave you been to the store in Ottumwa with the defendant?
        A: Yes.
                 Q: Have you both purchased pseudoephedrine at the same time?
        A: I believe so.
The third statement, while denied by McDonald at trial, is corroborated by an abundance
of strong circumstantial evidence, including the NPLEx records and testimony by
multiple witnesses—including Pinegar, whose testimony is credible—about the operation
of the “smurfing” scheme by which the defendant was alleged to have obtained
pseudoephedrine from multiple acquaintances.
                                         9


      In this case, the hearsay testimony came from an investigative officer, not

a man in jail for the same crime as the defendant as in Horn. While Pinegar’s

corroborating testimony comes from a witness who was also charged with a

related crime, she testified consistently with her interview statement. McDonald

has not been charged in any relation to this case and testified on behalf of the

defendant, so her corroborating testimony can be considered trustworthy. Unlike

Horn, there is no evidence Pinegar and McDonald were incentivized to align their

testimony to Milligan’s or to each other’s, especially since the two were called to

the stand by adverse parties.         No party contests the credibility of the

corroborating circumstantial evidence of the NPLEx records.

      McGee relies heavily on Pinegar’s statement to Milligan during their

interview: “I’ll tell you whatever the fuck you want to know.” McGee effectively

used this statement in cross-examination of Pinegar, and the jury heard both the

statement and Pinegar’s explanation.

      McGee also claims the hearsay was prejudicial notwithstanding its

cumulative nature because “the only real purpose for admitting [it] is to bolster

th[e] witness[es’] credibility.” Elliott, 806 N.W.2d at 670. However, our case law

is clear that prejudice will only be found under this standard in circumstances in

which the credibility of the declarants—in this case, Pinegar and McDonald—is

the lynchpin of the State’s case. See id. at 672 (“[T]he outcome of the case

depended entirely on the credibility of these witnesses[;] it is evident the sole

purpose the State could have had for introducing [a witness’s] hearsay testimony

was to bolster the credibility of [the declarants], who all admitted they changed

their stories.”); see also id. at 671 (discussing the circumstances of United States
                                            10

v. Bercier, 506 F.3d 625 (8th Cir. 2007), in which the case “turned on the

credibility of the victim and the defendant” and “the hearsay testimony unfairly

tipped the scales” of the credibility determination).

       In this case, neither Pinegar’s nor McDonald’s testimony take on such a

pivotal role. Pinegar’s testimony was additional evidence of the mechanisms of

the conspiracy, but it was not the only evidence or even the strongest evidence.

McDonald testified on behalf of the defendant.            Her testimony may have

supported the defendant in presenting her defense, but nothing in her testimony

was determinative of the outcome of the case. The hearsay testimony was not

prejudicial based upon its effect on the declarants’ credibility.

       Milligan’s hearsay testimony is, on the whole, cumulative and corroborated

by trustworthy evidence elsewhere in the record. Therefore, McGee was not

prejudiced by the district court’s error in admitting the testimony, and she is not

entitled to relief based upon that error.

       B. Opinion Testimony

       McGee’s second assertion is that the trial court abused its discretion by

impermissibly permitting Milligan to testify as to his opinion regarding the

existence, operation, and members of the alleged conspiracy. The State argues

this issue has not been preserved for our review. McGee argues the issue has

been properly preserved, but she asserts in the alternative that her trial counsel’s

failure to preserve the issue would amount to ineffective assistance of counsel.

       1. Error Preservation. McGee’s objection to Milligan’s opinion testimony

was raised in a motion in limine, but it was not raised again at trial.
                                           11


              Ordinarily, error claimed in a court’s ruling on a motion in
       limine is waived unless a timely objection is made when the
       evidence is offered at trial. However, where a motion in limine is
       resolved in such a way it is beyond question whether or not the
       challenged evidence will be admitted during trial, there is no reason
       to voice objection at such time during trial. In such a situation, the
       decision on the motion has the effect of a ruling.
              A ruling only granting or denying protection from prejudicial
       references to challenged evidence cannot preserve the
       inadmissibility issue for appellate review. However, if the ruling
       reaches the ultimate issue and declares the evidence admissible or
       inadmissible, it is ordinarily a final ruling and need not be
       questioned again during trial.

State v. Alberts, 722 N.W.2d 402, 406 (Iowa 2006) (citations and internal

quotation marks omitted).

       The district court’s decision on McGee’s motion in limine stated:

       The Court determines that Sergeant Milligan may testify based on
       his own first-hand knowledge, just as any other lay witness could so
       testify. The Court further determines that Sergeant Milligan may
       testify as to his knowledge, skill, experience, training, or education
       as a police officer who has conducted many drug conspiracy
       related investigations. Assuming Sergeant Milligan[] testifies that
       he has extensive experience and education in conducting drug
       conspiracy investigations, he may testify as to expertise he has
       developed in this arena. . . . Such testimony is likely to assist the
       jury as the trier of fact and is therefore admissible. The extent of
       his credentials and his credibility may be tested upon cross-
       examination. The weight of his testimony is for the trier of fact.

(Emphasis added.) The district court declared Milligan’s testimony regarding his

expert opinion on drug conspiracies admissible, and that declaration therefore

has the force and effect of a ruling.3 McGee’s trial counsel therefore was not

required to raise the objection again during the trial to preserve the issue for our

3
  The condition that Milligan first testify to his experience and education does not make
the district court’s ruling a mere denial of “protection from prejudicial references to
challenged evidence.” Alberts, 722 N.W.2d at 406. Our supreme court held in Alberts,
“Even though the district court stated the evidence may become admissible . . . , this
does not change the fact that the court’s ruling was controlling so long as [the condition
that would bar admissibility did not occur].” Id. at 407. We therefore disagree with the
State that the district court’s ruling on the motion in limine was “not conclusive.”
                                            12


review. Because we find the issue properly preserved, we review McGee’s claim

on its merits and need not reach the claim of ineffective assistance of counsel on

this issue.

       2. Admissibility. The trial court permitted Milligan to express his opinions

on the existence, operation, and members of the alleged conspiracy even though

those matters were issues to be decided by the jury. 4 See Iowa R. Evid. 5.704

(“Testimony in the form of an opinion or inference otherwise admissible is not

objectionable because it embraces an ultimate issue to be decided by the trier of

fact.”). “[O]pinion testimony is not inadmissible because it embraces the ultimate

issue in the case, but it must still be admissible under the other rules of

evidence.” In re Det. of Palmer, 691 N.W.2d 413, 419 (Iowa 2005).

       The district court admitted the testimony based on Milligan’s specialized

knowledge as an officer who had investigated a large number of drug

conspiracies similar to that alleged in McGee’s case. Counsel did not challenge

Milligan’s specialized knowledge on this point.                 Rule 5.702 provides,

“If . . . specialized knowledge will assist the trier of fact to understand the

evidence or to determine a fact in issue, a witness qualified as an expert by

knowledge, skill, experience, training, or education may testify thereto in the form

of an opinion or otherwise.” McGee now asserts Milligan’s testimony was not

helpful to the jury because it gave rise to a danger of conflating the term


4
  McGee also asserts that Milligan’s testimony was contrary to her own assertion of
innocence at trial, “necessarily include[d] the conclusion that she was not credible,” and
was therefore not admissible. McGee’s cited authorities do not stand for the proposition
that opinion testimony that runs contrary to a defendant’s testimony is per se
inadmissible. Milligan did not directly testify to McGee’s credibility. It was within the
province of the jury as the finder of fact to weigh the respective credibility of Milligan,
McGee, and all the other witnesses and reach its own conclusions.
                                            13


“conspiracy” as it was used in testimony and as it is defined in the law. She

further claims the danger of the jury misunderstanding the import of the testimony

outweighs any other probative value it may have had. See Palmer, 691 N.W.2d

at 420; Iowa R. Evid. 5.403 (“[E]vidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the

issues, or misleading the jury . . . .”).

       McGee relies heavily upon our supreme court’s decision in Palmer, but

Palmer’s statement of the applicable law does not support her position. The

Palmer court favorably cites numerous authorities for the proposition that “when

the popular meaning is roughly the same as the legal meaning, the opinion is not

excludable merely because it contains legal terms.” Palmer, 691 N.W.2d at 420

(citations and internal quotation marks omitted). The testimony is more likely to

be admissible if the examiner “carefully explore[s] the bases for the opinion and

by ph[r]asing his [or her] examination in factual terms.” Id. (citations and internal

quotation marks omitted).

       We find Milligan’s testimony regarding the nature of the alleged conspiracy

in this case was carefully based on an exploration of factual background and

specialized knowledge of a scheme that may not be within the common

knowledge of the jury. In particular, the testimony described the modus operandi

of individuals running a “smurfing” operation5 and whether the characteristics of

such an operation were present in this case. See State v. Johnson, 224 N.W.2d

5
  A smurfing operation is one in which a manufacturer of methamphetamine relies upon
multiple buyers to purchase pseudoephedrine from various retail locations over a period
of time.    The buyers in turn provide the purchased pseudoephedrine to the
manufacturer. This scheme creates a steady supply of pseudoephedrine without any
one participant exceeding the legal purchase limits in the NPLEx records.
                                              14


617, 622 (Iowa 1974) (finding a qualified expert with knowledge of the modus

operandi of “tilltappers” possessed “a special knowledge of a subject which is not

within the common experience of mankind generally”).

        We recognize the dictionary definition of conspiracy6 and the legal

definition7 are not identical. However, as it pertains to a smurfing operation, they

have roughly the same meaning so as to satisfy the requirement as stated in

Palmer. Furthermore, the context of Milligan’s testimony indicates his use of the

word was based upon common parlance, and the jury would not have mistaken

his testimony as a court-supported legal conclusion. Neither party argues the

jury instructions on the legal definition of conspiracy were inadequate, and as the

district court noted, the jury was tasked with weighing the value of Milligan’s

testimony when evaluating whether a conspiracy existed in the legal sense of the

term.

        Milligan’s opinion testimony applying his knowledge and expertise of a

typical smurfing operation to the facts of this case was admissible under our rules

of evidence, and the district court did not abuse its discretion by admitting it.

        C. Ineffective Assistance—Quantity Evidence

        McGee lastly claims her trial counsel was ineffective because he did not

adequately respond to the State’s failure to present evidence sufficient to

calculate the quantity of methamphetamine allegedly produced.8                       Counsel’s


6
  The Oxford American Dictionary defines “conspiracy” as “a secret plan by a group to
something unlawful or harmful.” Oxford American Dictionary (3d ed. 2010), available at
http://www.oxforddictionaries.com/us/definition/american_english/conspiracy.
7
  See Iowa Code § 706.1.
8
  Iowa Code section 124.401(1)(b)(7) provides, “Violation of this subsection with respect
to the following . . . substances . . . is a class ‘B’ felony: . . . More than five grams but not
more than five kilograms of methamphetamine . . . .” It was therefore the State’s burden
                                            15


failure to recognize and respond to this evidentiary deficiency, she claims,

constitutes ineffective assistance of counsel.

       “We ordinarily preserve ineffective-assistance-of-counsel claims for

postconviction relief proceedings.” State v. Halverson, 857 N.W.2d 632, 635

(Iowa 2015). We may consider such a claim on direct appeal only if the record is

sufficient to permit us to do so. Id.

       In   this   case,    McGee       contends     Milligan’s   testimony     regarding

methamphetamine yield was expert testimony admitted without the requisite

foundation, was impermissible hearsay, and was factually inaccurate.9

       First, we consider McGee’s claim that her counsel failed to object to the

foundation of Milligan’s expert testimony regarding quantity.           Contrary to her

argument counsel did not object on this ground, counsel moved to prohibit this

testimony in the motion in limine and did object to Milligan’s lack of expertise

regarding this “federal standard” of theoretical maximum yield during direct

examination. The motion in limine based on lack of foundation and expertise and

the objection based on the same grounds were overruled. Counsel effectively

challenged Milligan’s erroneous testimony, and his cross-examination clearly

demonstrated Milligan’s lack of foundation for the “standard.”                  McGee’s



to prove that more than five grams of methamphetamine were manufactured during the
course of the conspiracy.
9
  Milligan testified the Iowa Division of Criminal Investigation maintains 92% yield is the
average yield for methamphetamine production—i.e. an average methamphetamine
cook will produce 92 grams per 100 grams of pseudoephedrine. Both parties agree this
statement was false. Milligan also admitted in his testimony, “I am not a chemist.” He
explicitly stated he was not the right person to answer technical questions about
methamphetamine yields. The State failed to present any other evidence demonstrating
the amount of methamphetamine allegedly manufactured in the course of the alleged
conspiracy.
                                          16


ineffective-assistance-of-counsel claim based on failure to object to lack of

foundation and expertise is belied by the record and is denied.

       However, McGee also challenges the efficacy of counsel’s representation

in several other respects. First, she notes counsel failed to object to Milligan’s

testimony regarding the standard applied to quantity calculations as hearsay. 10

We agree; the record does not reflect any such objection was made. Second,

she notes counsel failed to call an expert to rebut Milligan’s testimony and “show

both that the theoretical yield was wrong and that the ultimate amount of

methamphetamine could not be determined.” Indeed, the record reflects no such

evidence was presented.       Third, McGee notes counsel failed to move for a

directed verdict on the matter of quantity of methamphetamine allegedly

manufactured, which is indisputably an element of the crime charged. See Iowa

Code §§ 124.401(1)(b)(7), .401(1)(c)(6). The record confirms no such motion

was made.

       However, there is insufficient evidence in the record for us to reach a

conclusion as to whether any of these failures amounted to ineffective assistance

of counsel. There is no evidence of counsel’s intentions, additional knowledge,

or decision-making rationale pertaining to any of these alleged deficiencies. We

therefore preserve this portion of McGee’s claim of ineffective assistance for

postconviction-relief proceedings during which a record may be developed that

includes additional necessary evidence.

10
   Regarding his knowledge of theoretical, average, and maximum yields, Milligan
testified, “I’m not a chemist. I don’t manufacture methamphetamine. I get my
information from the Division of Criminal Investigation and the experts, and that’s what
they say.” Therefore, McGee argues, all of Milligan’s testimony on this topic was
hearsay.
                                         17


       IV. Conclusion

       As to Milligan’s hearsay testimony, the district court erred in admitting the

evidence. However, McGee suffered no prejudice from that error, and she is not

entitled to relief.   As to Milligan’s opinion testimony regarding the existence,

operation, and members of the conspiracy, the issue was preserved for our

review. However, on a review of the record, we find the district court’s exercise

of its discretion in admitting the evidence was proper. We affirm the district court

on both evidentiary issues.      As to McGee’s ineffective-assistance-of-counsel

claim, we find the claim to be meritless as it pertains to counsel’s duty to object to

the foundation for Milligan’s quantity testimony. In all other respects, we find the

record insufficient to resolve the issue of ineffective assistance, and we therefore

preserve her claim for future postconviction-relief proceedings.

       AFFIRMED.
