               IN THE SUPREME COURT OF IOWA
                            No. 87 / 04-1247

                         Filed October 20, 2006

STATE OF IOWA,

      Appellee,

vs.

REYNOLD RAYNALDO ONDAYOG,

      Appellant.
________________________________________________________________________
      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Webster County, Gary L.

McMinimee, Judge.



      State seeks further review of court of appeals decision finding

defendant received ineffective assistance of counsel.        COURT OF

APPEALS     DECISION     VACATED;      DISTRICT      COURT   JUDGMENT

AFFIRMED.


      Linda Del Gallo, State Appellate Defender, and Nan Jennisch,

Assistant State Appellate Defender, for appellant.



      Thomas J. Miller, Attorney General, Ann E. Brenden, Assistant

Attorney General, Timothy N. Schott, County Attorney, and Ricki Osborn

and John Beaty, Assistant County Attorneys, for appellee.
                                     2

STREIT, Justice.

      Reynold Ondayog appeals from his conviction for assault with

intent to commit sexual abuse causing bodily injury, a class “D” felony in

violation of Iowa Code section 709.11 (2003). Ondayog contends his trial

attorney rendered ineffective assistance of counsel by failing to object to

the jury instruction which included this charge as a lesser-included

offense to the charge of kidnapping in the first degree (resulting in sexual

abuse).       The court of appeals determined Ondayog’s trial counsel

provided ineffective assistance and reversed his conviction, vacated his

judgment and sentence, and remanded the case back to the district court

for a new trial.    The court of appeals also concluded double jeopardy

principles precluded retrial of the submitted greater offenses of first-

degree kidnapping, third-degree kidnapping, and third-degree sexual

abuse.       Upon further review, we find Ondayog did not satisfy both

elements of his ineffective assistance of counsel claim.    We vacate the

decision of the court of appeals, affirm the decision of the district court,

and preserve Ondayog’s ineffective assistance claim for postconviction

relief proceedings.

      I. Facts and Prior Proceedings

      The charges in this case arose from events that happened in Fort

Dodge on the night of October 23, 2003.        R.H., an eighteen-year-old

college student, started the night drinking beer and vodka while driving

around country roads with friends. Later, she went to a local bar called

“Big Reds.” She met Ondayog outside of the bar and asked him for a

cigarette.    She had never met Ondayog prior to this encounter.       They

spoke briefly, and Ondayog invited her to go back to his apartment to

pick up something. She agreed and got into Ondayog’s car. On the way
                                      3

to the apartment, she rebuffed Ondayog’s repeated sexual overtures.

Once they reached Ondayog’s apartment, she claims he unlocked the

door and pushed her inside and onto the floor, scraping her knee in the

process. She claims he forced her onto a mattress, removed her pants

and underwear, and had sexual intercourse with her. After he was done,

she ran back to Big Reds. Ondayog also returned to the bar.

      R.H. told her friends what happened, and someone called the

police.   The police arrived and questioned Ondayog.           He allowed the

police to search both his car and his apartment.        Police found R.H.’s

underwear in his apartment.
      R.H. was taken to the hospital for a physical and pelvic

examination. The doctor observed an abrasion in the area between her

vagina and rectum. The doctor opined the injury was fresh and could

have been caused by some sort of penetration of the vagina. A DNA test

did not reveal Ondayog’s DNA on R.H., her clothing, or on his bed sheets.

However, Ondayog’s seminal fluid was found on his own pants. R.H.’s

blood was also found on her own pants.

      Ondayog was charged by trial information on December 4, 2003

with kidnapping in the first degree (resulting in sexual abuse), in

violation of Iowa Code section 710.2 (2003), and sexual abuse in the

third degree, in violation of Iowa Code section 709.4.          The charge of

third-degree sexual abuse was stricken from the trial information before

trial per mutual agreement the third-degree sexual abuse charge was a

lesser-included offense of first-degree kidnapping. At the conclusion of

trial, the district court instructed the jury the charge of kidnapping in

the first degree included the following six lesser offenses:

      (1) Kidnapping in the third degree;
                                       4

      (2) Sexual abuse in the third degree;

      (3) Assault with the intent to commit sexual abuse causing bodily

injury;

      (4) Assault with the intent to commit sexual abuse not causing

bodily injury;

      (5) False imprisonment; and

      (6) Assault.

      Ondayog’s trial counsel did not object to the court’s instruction.

The jury returned a verdict of guilty on the offense of assault with the

intent to commit sexual abuse causing bodily injury.
      After the verdict was entered, Ondayog’s trial counsel, James Koll,

made a motion for new trial based on the court’s error in instructing the

jury. He argued the crime of assault with the intent to commit sexual

abuse causing injury was not a lesser-included offense of first-degree

kidnapping and therefore the conviction was a “nullity.”      See State v.

Adcock, 426 N.W.2d 639, 640 (Iowa Ct. App. 1998) (stating willful injury

was not lesser-included offense of attempted murder and therefore

conviction for willful injury was nullity because the indictment charged

defendant with attempted murder but not with willful injury).           In

response to the State’s argument he had not objected to the jury

instructions, Koll indicated his failure to object to the jury instructions

did not eliminate his grounds for a new trial.         Citing Iowa Rule of

Criminal Procedure 23.2 (now 2.24(2)), Koll argued the court must grant

a new trial because the court had “misdirected the jury in a material

matter of law.”   Koll argued this rule indicates an objection was not

necessary when the court made the error.       Finally, Koll stated, if the

court did not grant his motion, then
                                         5
      it goes on appeal, the court rules that we failed to object and
      it will come right back to this Court on a PCR and say was
      there any prejudice. . . . So I think my client is entitled to
      have this conviction thrown out [because] he is entitled to
      that both on the grounds that the Court has misinstructed
      the jury and on the grounds he has not received a fair and
      impartial trial because of my mistake, if I did make one.[ 1 ]

The district court overruled the motion, stating Koll had not made a

timely objection to the disputed jury instruction, and therefore, the

instruction had become the law of the case. The court did not address

the issue of whether Ondayog received ineffective assistance of counsel.

      Rather than challenge the court’s ruling on the motion for new

trial, Ondayog frames this appeal as a claim of ineffective assistance of

counsel.

      II. Scope of Review

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

v. Martin, 704 N.W.2d 665, 668 (Iowa 2005).

      III. The Merits

      Ondayog argues the crime for which he was convicted was

improperly submitted to the jury as a lesser-included offense of the

original charges of kidnapping in the first degree and sexual abuse in the

third degree. He asserts his trial counsel rendered ineffective assistance

by failing to timely object to the jury instruction that submitted this

charge to the jury. We first analyze whether sexual abuse causing bodily

injury is a lesser-included offense to kidnapping in the first degree, and



      1Later,   Koll went on to argue:
      if you grant our Motion for New Trial, I think the State could charge him
      with the crime he has been found guilty of but was not charged with so it
      doesn’t get my client out of this crime that he was convicted of. It just
      gives him an opportunity to contest that crime that he has not had the
      opportunity to in terms of the strategy that was designed in the trial to
      confront the charges that he was charged with.
                                    6

then discuss the “law of the case” doctrine and Ondayog’s ineffective-

assistance claim.

       A. Lesser-Included Offenses

       Iowa Rule of Criminal Procedure 2.22(3) allows the jury to find the

defendant guilty of “any offense the commission of which is necessarily

included in that with which the defendant is charged.”      To determine

whether one crime is a lesser-included offense of another, we apply the

impossibility test and look to the elements of the offenses in question.

State v. McNitt, 451 N.W.2d 824, 825 (Iowa 1990). The impossibility test

provides one offense is a lesser-included offense of the greater when the

greater offense cannot be committed without also committing the lesser.

Id.   In the case at hand, the two greater offenses do not necessarily

include bodily injury, which is an element of the assault for which

Ondayog was convicted. See Iowa Code §§ 710.1-.2, 709.4(1), 709.11.

This means the crime of assault with intent to commit sexual abuse

causing bodily injury is not included in the greater offenses because the

greater offenses of kidnapping in the first degree and sexual abuse in the

third degree can be committed without also committing the lesser offense

of assault with intent to commit sexual abuse causing bodily injury. Cf.

State v. Clarke, 475 N.W.2d 193, 195–96 (Iowa 1991) (holding willful

injury is not a lesser-included offense of attempted murder due to the

distinguishing element of proof of serious injury, required for conviction

of willful injury but not attempted murder). Therefore, assault with the

intent to commit sexual abuse causing bodily injury does not qualify as a

lesser-included offense of first-degree kidnapping (with the “subjected to

sexual abuse” alternative).
                                       7

         B. Law of the Case

         The State argues the jury instructions in this case are unassailable

on appeal because they have become the “law of the case.” See State v.

Taggart, 430 N.W.2d 423, 425 (Iowa 1988) (stating “[f]ailure to timely

object to an instruction not only waives the right to assert error on

appeal, but also ‘the instruction, right or wrong, becomes the law of the

case’” (citation omitted)). We disagree. In Taggart, the case upon which

the State relies for its “law of the case” doctrine, the defendant did not

argue he was denied effective assistance of counsel.          See id. at 424.

Therefore, when we rejected his claim for lack of error preservation we

did not go further to decide whether he had received ineffective

assistance.
         This case comes before us as an ineffective-assistance-of-counsel

claim.      Ineffective-assistance-of-counsel claims are not bound by

traditional error-preservation rules. See State v. Lucas, 323 N.W.2d 228,

232 (Iowa 1982) (stating the claim of ineffective assistance of counsel is

an exception to the general rule of error preservation). Such claims are

an exception to normal error-preservation rules and the “law of the case”

doctrine.    See State v. Callender, 444 N.W.2d 768, 772 (Iowa Ct. App.

1989) (analyzing ineffective-assistance-of-counsel claim that addressed

trial counsel’s failure to timely object to a jury instruction).

         C. Ineffective Assistance of Counsel

         The right to assistance of counsel, under the Sixth Amendment to

the United States Constitution and article I, section 10 of the Iowa

Constitution, guarantees “effective” assistance of counsel.         Powell v.
                                      8

Alabama, 287 U.S. 45, 71, 53 S. Ct. 55, 65, 77 L. Ed. 158, 172 (1932);

State v. Kinkead, 570 N.W.2d 97, 103 (Iowa 1997). To prove a claim of

ineffective   assistance   of   counsel,   Ondayog   must    show      by   a

preponderance of the evidence that his trial counsel failed to perform an

essential duty and prejudice resulted. Martin, 704 N.W.2d at 669; accord

Rompilla v. Beard, ___ U.S. ___, ___, 125 S. Ct. 2456, 2462, 162 L. Ed. 2d

360, 377 (2005) (“Ineffective assistance . . . is deficient performance by

counsel resulting in prejudice . . . .”). Ondayog’s ineffective-assistance

claim fails if he is unable to prove either element of this test. State v.

Cook, 565 N.W.2d 611, 614 (Iowa 1997).
      1. Prejudice

      The resulting prejudice element of an ineffective assistance claim is

satisfied if a reasonable probability exists that, “‘but for counsel’s

unprofessional errors, the result of the proceeding would have been

different.’” Martin, 704 N.W.2d at 669 (quoting Strickland v. Washington,

466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984)).

“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.        Ondayog asks us to presume prejudice

because he was convicted of a crime for which he was not charged. We

need not do so because the facts themselves provide enough evidence to

find prejudice in this case.

      The jury instructions set forth a cascade of criminal offenses,

beginning with the crime of kidnapping in the first degree.          The last

sentence of the kidnapping in the first degree instruction states:

      If the State has failed to prove any one of the elements [of
      this charge], the defendant is not guilty of Kidnapping in the
      First Degree and you will then consider the charge of
                                           9
       Kidnapping in the Third Degree explained in [a subsequent
       instruction].

       The instruction pertaining to kidnapping in the third degree

contains a similar statement referring the jury to the charge of sexual

abuse in the third degree. The instruction pertaining to sexual abuse in

the third degree contains a similar statement referring the jury to the

charge of assault with intent to commit sexual abuse causing bodily

injury. This instruction directs the jury to the next lower offense, assault

with the intent to commit sexual abuse not causing bodily injury.

Presumably, the jury crossed off each instruction one at a time, in order,

until it settled upon a crime for which all members agreed the elements

were satisfied. 2 If the jury had not been presented with this nonlesser-

included offense, then it would likely have settled upon the next available

alternative—assault with intent to commit sexual abuse (not causing

bodily injury).     Since this crime is only an aggravated misdemeanor,

Ondayog’s trial counsel’s alleged error may have been the difference

between a felony and a misdemeanor conviction.

       This is clear proof, had his attorney objected to the inclusion of the

crime of sexual abuse causing bodily injury, the result of the proceeding

would have been different.

       2. Did Trial Counsel Breach an Essential Duty?

       We presume performance of counsel falls within a range of

reasonable professional assistance. State v. Hepperle, 530 N.W.2d 735,

739 (Iowa 1995).       Ondayog has the burden to rebut this presumption

with evidence his trial counsel’s “representation fell below an objective

       2A jury is presumed to follow the instructions of the court. State v. Proctor, 585
N.W.2d 841, 845 (Iowa 1998); State v. Anderson, 209 Iowa 510, 517, 228 N.W. 353, 356
(Iowa 1929). There is no evidence indicating the jury did not follow the court’s
instructions in this case.
                                     10

standard of reasonableness.” Strickland, 466 U.S. at 688, 104 S. Ct. at

2064, 80 L. Ed. 2d at 693.

      Because   timely   objection   to    jury   instructions   in   criminal

proceedings is necessary to preserve alleged error for appellate review,

State v. Jeffries, 430 N.W.2d 728, 737 (Iowa 1988), Ondayog argues his

counsel breached an essential duty by not objecting to the improper jury

instructions at the time of trial.   Indeed, we have previously held the

failure to recognize an erroneous instruction and preserve error breaches

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

1998). The question becomes whether there was a tactical reason for not

objecting to the instruction. See State v. Graves, 668 N.W.2d 860, 881-

82 (Iowa 2003) (concluding trial counsel breached an essential duty by

failing to object to the county attorney’s questions and argument and in

failing to request a mistrial because there was no tactical reason for not

objecting).   Courts generally presume counsel is competent and a

“defendant    must   overcome    the      presumption    that,   under    the

circumstances, the challenged action ‘might be considered sound trial

strategy.’” State v. Wissing, 528 N.W.2d 561, 564 (Iowa 1995) (quoting

Strickland, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694–95).

      Moreover, we must evaluate trial counsel’s actions from the

perspective of when the decision was made—during the course of trial.

See Strickland, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694,

(“A fair assessment of attorney performance requires that every effort be

made to eliminate the distorting effects of hindsight, to reconstruct the

circumstances of counsel’s challenged conduct, and to evaluate the

conduct from counsel’s perspective at the time.”).        Viewed from this

angle, it appears Ondayog’s trial counsel’s failure to object to the
                                       11

erroneous jury instruction could be deemed trial strategy. Ondayog was

charged with kidnapping in the first degree, a Class “A” felony.            Iowa

Code § 710.2. If convicted of this crime, he would have been sentenced

to mandatory life imprisonment. Id. § 902.1. As proper lesser-included

offenses, Ondayog could have been convicted of kidnapping in the third

degree, or sexual abuse in the third degree, both class “C” felonies. See

id. §§ 709.4, 710.4. Class “C” felonies carry a maximum indeterminate

sentence of ten years and a maximum fine of $10,000. Id. § 902.9. Trial

counsel representing a defendant in such a situation might purposely

allow the jury to be instructed on the lesser offense of assault with intent

to commit sexual abuse causing bodily injury because this crime is only

a class “D” felony, punishable by a maximum indeterminate sentence of

five years and a fine of $7500. Id. §§ 709.11, 902.9. By instructing on

this lesser crime, trial counsel would give the jury the opportunity to

forego the three higher offenses.           If this was the strategy, it was

successful.
      This case illustrates why we rarely address ineffective-assistance

claims   on    direct   appeal   and   instead   preserve   such   claims    for

postconviction relief. State v. Tate, 710 N.W.2d 237, 240 (Iowa 2006).

Because “[i]mprovident trial strategy, miscalculated tactics, and mistakes

in judgment do not necessarily amount to ineffective assistance of

counsel,”     State v. McKettrick, 480 N.W.2d 52, 55 (Iowa 1992),

postconviction proceedings are often necessary to discern the difference

between improvident trial strategy and ineffective assistance.

      The fact that a particular decision was made for tactical
      reasons does not, however, automatically immunize the
      decision from a Sixth Amendment challenge. That decision
      must still satisfy the ultimate test: “whether under the entire
                                   12
      record and totality of circumstances” counsel performed
      competently.

Graves, 668 N.W.2d at 881 (citations omitted). Nonetheless, we do not

delve into trial tactics and strategy “when they do not clearly appear to

have been misguided.”    State v. Couser, 567 N.W.2d 657, 659 (Iowa

1997). In other words, “we will not reverse where counsel has made a

reasonable decision concerning trial tactics and strategy, even if such

judgments ultimately fail.”   Brewer v. State, 444 N.W.2d 77, 83 (Iowa

1989); see also Taylor v. State, 352 N.W.2d 683, 685 (Iowa 1984) (“we

require more than a showing that trial strategy backfired or that another

attorney would have prepared and tried the case somewhat differently”).

      Since a counsel’s “mistake in judgment” is rarely grounds for

ineffective assistance, we cannot automatically assume every alleged

misstep was a reasonable strategy simply because some lawyer,

somewhere, somehow, under some circumstances at some time would

have done such a thing. In Strickland, the United States Supreme Court

conceded “[r]epresentation is an art, and an act or omission that is

unprofessional in one case may be sound or even brilliant in another.”

Strickland, 466 U.S. at 693, 104 S. Ct. at 2067, 80 L. Ed. 2d at 697.

Thus, a reviewing court must determine whether a reasonably competent

attorney would have failed to object to the erroneous jury instruction

under the given circumstances.     Id. at 688, 104 S. Ct. at 2065, 80

L. Ed. 2d at 694 (“The proper measure of attorney performance remains

simply reasonableness under prevailing professional norms.”).

      Ondayog contends postconviction proceedings are not necessary in

this case because his trial counsel admitted he may have made a
                                             13

mistake. 3 Ondayog contends these statements indicate his trial counsel

did make a mistake, and therefore violated an essential duty.

       Standing alone, Ondayog’s trial counsel’s statements are not

enough to rebut the presumption that performance of counsel falls

within a range of reasonable professional assistance. See Strickland, 466

U.S. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693 (stating “the

defendant must show that counsel’s representation fell below an objective

standard of reasonableness” (emphasis added)). This issue is preserved

for postconviction proceedings where the record can be more fully

developed. If Ondayog desires, his trial counsel may testify in order to

more fully explain his actions. See, e.g., State v. Peck, 539 N.W.2d 170,

175 (Iowa 1995) (finding the record incomplete with respect to ineffective-

assistance       issues   and     preserving      for   postconviction       proceedings

determination of whether defense counsel’s failure to request lesser

included offense instructions was part of an “all or nothing” strategy);

Wycoff v. State, 382 N.W.2d 462, 472 (Iowa 1986) (after reviewing trial

counsel’s testimony at the postconviction trial, concluding counsel’s

failure to request an alibi instruction was based on his general strategy

of   attempting      to   disprove     the   State’s    evidence     by    showing     the

       3During   the motion for a new trial, Ondayog’s trial counsel said the following:

               Your Honor, after the jury verdict in this case, I tried to analyze
       why the jury came to this conclusion and . . . . I think I made a mistake.
       I think the jury found my client guilty of something he wasn’t charged
       with. . . . Now I know the State will probably argue I think in their brief
       we waived that argument . . . . If that’s correct, if I made a mistake by
       failing to object that instruction . . . . [i]f I made a mistake in not
       correcting the Court’s error, then that is still grounds for new trial,
       Judge. . . . Whether it’s my mistake and I failed to object . . . —he is
       entitled to [a new trial] both on the grounds that the Court has
       misinstructed the jury and on the grounds that he has not received a fair
       and impartial trial because of my mistake, if I did make one.

(Emphasis added.)
                                      14

unlikelihood that Wycoff, although present, murdered the victim); State

v. Wilkens, 346 N.W.2d 16, 18 (Iowa 1984) (after reviewing trial counsel’s

testimony at the hearing on the motion for a new trial, concluding trial

counsel’s tactical decision to concentrate on self defense rather than

diminished capacity “made sense”). Ultimately though, the district court

must determine whether trial counsel’s omission was reasonable under

“prevailing professional norms,” Ledezma v. State, 626 N.W.2d 134, 142

(Iowa 2001) (quoting Strickland, 466 U.S. at 688, 104 S. Ct. at 2065, 80

L. Ed. 2d at 694); that is the court must apply “an objective standard of

reasonableness.”     Strickland, 466 U.S. at 688, 104 S. Ct. at 2064, 80

L. Ed. 2d at 693.
      IV. Conclusion

      Ondayog has failed to establish his claim of ineffective assistance

of counsel. The decision of the district court is affirmed, and we preserve

Ondayog’s      ineffective   assistance    claim   for   postconviction   relief

proceedings.

      COURT OF APPEALS DECISION VACATED; DISTRICT COURT

JUDGMENT AFFIRMED.

      All justices concur except Hecht, J., who takes no part.
