                    IN THE COURT OF APPEALS OF IOWA

                                  No. 14-0076
                              Filed June 10, 2015


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JOHN MATTHEW MILDER,
     Defendant-Appellant.
________________________________________________________________


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

Judge.



       John Milder appeals from his conviction of manufacturing/conspiring to

manufacture methamphetamine. REVERSED AND REMANDED.




       Courtney T. Wilson of Gomez May LLP, Davenport, for appellant.

       Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney

General, Mike Wolf, County Attorney, and Amanda W. Myers, Assistant County

Attorney, for appellee.



       Heard by Danilson, C.J., and Vaitheswaran and Doyle, JJ.
                                             2


DANILSON, C.J.

       John Milder appeals his conviction of manufacturing/conspiracy to

manufacture     methamphetamine,        in       violation   of    Iowa   Code   section

124.401(1)(c)(6) (2011).1 He contends his trial counsel was ineffective in failing

to object to the jury instructions, which did not set out the elements of the offense

of conspiracy to manufacture a controlled substance. Milder also contends the

trial court erred in giving a supplemental jury instruction.

       In light of the State’s concession that trial counsel breached an essential

duty and the trial court’s failure to instruct on more than one element of the

conspiracy alternative charge, we have a fundamentally unfair proceeding and

we are not confident in its result. Because we cannot uphold Milder’s conviction

on these flawed instructions and trial counsel’s failure to object to them, we

reverse and remand for new trial.

I. Background Facts and Proceedings.

       Suspecting the manufacturing of methamphetamine, on July 2, 2013, at

about 7 a.m., several law enforcement officers executed a search warrant for the

residence of Scott Richardson at 2802 Highway 67, Camanche, Iowa. Scott

Richardson was present, as was John Milder.                       Officers seized and/or

photographed drug paraphernalia, suspected HCL generators, salt, a coffee filter

with residue, lithium battery parts, sulfuric acid, sodium hydroxide, and an empty

can of Coleman camping fuel. As a result of the search and statements made by

persons facing their own criminal charges, Milder was charged with violating

1
  The original allegations provided dates of January 1 through July 1, 2013. However,
the State was allowed to amend the allegations to extend the relevant dates from July
2012 through July 1, 2013. Thus, the code in effect was the 2011 Iowa Code.
                                        3


Iowa Code section 124.401(1)(c)(6), which prohibits the manufacture, or

conspiring to manufacture, methamphetamine.          A jury trial was held on

December 2-5, 2013.

       Earlier that year, on January 18, 2013, Camanche Reserve Officers

Nathan Petersen and Kyle Kampe went to 519 13th Avenue in Camanche to

speak with Milder. Upon arriving at the residence, the officers were met by Jim

Carpenter, who stated Milder had moved out about a month previously.

Carpenter directed officers to a bedroom he said Milder had stayed in. In the

room, the officers observed “a baby crib that was somewhat in pieces, there was

a dresser, parts of a coffee pot and not much else.” Officer Petersen stated they

did locate on a dresser in the bedroom a pill bottle bearing the name of

Stephanie Cook, which contained a whitish substance. The officers knew Cook

as Milder’s girlfriend.

       Carpenter allowed the officers to take three plastic bags of garbage from

the porch of the residence. Upon returning to the police department, the officers

opened the three garbage bags. Inside those bags the officers found an empty

box of pseudoephedrine, parts of a light bulb, a piece of an aluminum can with

burnt residue, two razor blades, pieces of a syringe, an instant ice pack with the

interior removed a manila envelope bearing the name of John Milder and

postmarked March 6, 2012, a March 25, 2012 return of service form, medication

bearing the name of Stephanie Cook, and four plastic bottles. The officers also

found a Mountain Dew bottle with yellow electrical tape around it and a water

bottle containing a substance.
                                              4


       Carpenter testified he had been living at 519 13th Avenue since

September of 2012, and Henry Bartels, “an older gentleman . . . not in good

health,” resided there with him. Carpenter stated Milder, Cook, and their child

had been living there when he first moved into the home and they moved out in

January 2013.     Carpenter testified the bags confiscated by the officers on

January 18, 2013, contained trash from various rooms in the house, including his

room, the living room, Bartels’ room, and the porch.           He had cautioned the

officers there were syringes in the garbage bags, which he had found while

cleaning, but “I can’t really tell you if it came out of [Milder and Cook’s] room or

something I picked up cleaning out the closets and stuff.” Carpenter stated the

box of pseudoephedrine found in the trash could have belonged to him—“I get

chronic pneumonia pretty much year round.”

       Comanche Police Sergeant Richard Schmitz Jr. testified he received

training in methamphetamine investigations. In the summer and fall of 2012,

Schmitz obtained access to the national precursor log registry, which gave him

access to information about pseudoephedrine purchases.                  Schmitz testified

pseudoephedrine      is     one   of    the   main   ingredients      for   manufacturing

methamphetamine.          In studying those purchases in the Camanche area, he

learned   of   several      people     “associated   with”   Milder     who    purchased

pseudoephedrine: Scott Richardson (who lived at 2802 Highway 67); Amber

Wieseler and her boyfriend, Curtis Marquette (“bought an abundance of

pseudoephedrine during the investigation”); Wieseler while in the company of

Dallas Jamison and Scott Richardson; and Everett Clark (Milder’s cousin) and his

girlfriend, Carrie Loper. Schmitz testified:
                                        5


              All of the group, Loper—Carrie Loper, Everett Clark,
      purchased a lot on the same day or within a day or two of each
      other. I had accessed—or requested video of a lot of these
      pseudoephedrine purchases from Walgreens or Walmart, or
      wherever they took place. What I would do is take those
      pseudoephedrine purchases that I got off of that registry, the date
      and time for those, and then I would request the video from
      Walmart or Walgreens from that day and time. But what I would
      request was the video for not only the pseudoephedrine purchase,
      but also the entrances and exits to Walmart and the exterior video
      pointed back at the parking lot. That way I can tie the associates—
      because it only tracks—the pseudoephedrine purchases only track
      the people who are buying the Sudafed. It doesn’t tell me the
      people who they’re with at the time of those purchases. That’s why
      I get all that extra video. And I would review that video to see who
      else was with them or the car that they were in to go there, or if that
      person purchased anything else that I could tell was used in the
      process of making meth, would tie all these people, the associates,
      together, so I knew how they were associated and where they were
      going.
              Q. Did you ever view John Milder on any of these videos?
      A. Not once.

Schmitz testified he in viewed the videos, and while two or more interested

persons were seen together on various dates of purchase, Milder was not

present when these other persons purchased pseudoephedrine. According to

the registry, Milder had not purchased pseudoephedrine since December 2010.

      Schmitz stated in 2012 he “was starting to piece all the associates

together so I know who was associated with the pseudoephedrine purchases,

trying to get a handle on who was involved in this conspiracy,” and later in 2013

“we started seeing more traffic out at Scott Richardson’s.”                Schmitz

acknowledged on cross-examination that nothing found in the trash bags taken

from 519 13th Avenue was submitted for fingerprinting.               Schmitz also

acknowledged that while he searched Richardson’s cell phone, he found no text

messages referring to pseudoephedrine purchases to Milder or anyone.
                                         6


         Special Agent Joshua Mulnix of the Iowa Division of Narcotics

Enforcement testified he assisted with the July 2, 2013 search of 2802 Highway

67, going through burnt trash located in the garage of the residence and digging

through a pile of old items that had been burned in the yard. While sorting

through the pile, Mulnix pulled out items he believed may have been involved

with manufacturing methamphetamine, including peeled lithium batteries, parts of

what appeared to be a pseudoephedrine blister pack, a broken razor blade, as

well as items of normal trash.

         Deputy Steve Diesch of the Clinton County Sheriff’s Office testified he

assisted in making entry into the residence at 2802 Highway 67 on July 2, 2013.

He testified that Milder was present inside the residence.        Diesch stated he

assisted in the search of the kitchen, dining room area, and rear bedroom of the

residence. Inside the residence, he located coffee filters, a two-liter bottle, and a

straw.

         Curtis Marquette testified he had been charged with two felonies for

“purchasing precursors and cooking methamphetamine” in “the same case.” He

entered into a plea bargain in which he agreed to plead guilty to possession of

precursors and provide testimony in exchange for a lesser sentence. Marquette

testified he was familiar with a house on 13th Avenue in Camanche where Milder

and Cook lived.      He testified that during the summer and fall of 2012, he

purchased and dropped off boxes of pseudoephedrine at the 13th Avenue

residence and an hour or more later would return for “finished product.” He

testified he used methamphetamine with Milder at that residence and he

“believe[d]” he saw Milder manufacture methamphetamine one time. Marquette
                                         7


testified further he stayed at Richardson’s residence on occasion and Milder

“stayed   there   quite   a   while.”    Marquette   stated   he   manufactured

methamphetamine with Milder at Richardson’s on more than one occasion in

2013. Cross-examination established Marquette had previously lied under oath

because he did not want to go to jail.

       Amber Wieseler testified she was providing testimony because of a plea

agreement. She had been charged with felony “conspiracy to manufacture and

precursors” but pled guilty to possession of precursors and received a five-year

suspended sentence. She stated she was a friend of Cook and visited her at the

residence on 13th Avenue.        Wieseler testified she did not provide Milder

pseudoephedrine while at that address and did not see him manufacture

methamphetamine there. However, she stated she did provide Sudafed to Milder

at Richardson’s residence and later would receive methamphetamine. Wieseler

testified she observed Milder making methamphetamine at Richardson’s on more

than one occasion. She acknowledged she had earlier told police that she gave

all the pseudoephedrine she purchased to “Jim and Heather.”

       Cory Determann of the Camanche Police Department was also involved in

the July 2, 2013 search at 2802 Highway 67. He stated he searched the kitchen

and dining area of the residence, as well as a bedroom. Inside that bedroom,

Determann located two “legal documents”—one bearing the name of John Milder

and the other Stephanie Cook. Also located on bunk beds inside that bedroom

were garbage bags filled with what appeared to be men’s clothes. Inside one of

the bags, Determann found a Ragu spaghetti jar with a coffee filter and some
                                          8


liquid in the bottom of it. He also found a plastic container with a white sludge in

the bottom. No fingerprinting of the jar or plastic container was attempted.

       Detective Steve Cundiff of the Clinton County Sheriff’s Office testified he

became involved with this case in February 2013 while working with the Iowa

Department of Human Services, which was involved with Carrie Loper and

Everett Clark. Loper and Clark were suspected of using methamphetamine and

manufacturing methamphetamine in a residence in Charlotte, Iowa, where

children were present.      Cundiff testified Clark then moved to Richardson’s

residence at 2802 Highway 67, and Cundiff went to that address three times in

2013—Cundiff did not go inside the house. Cundiff stated that Milder was at that

address on two of the three occasions Cundiff was there and Richardson and

Clark were also present. Cundiff testified that on May 31, 2013, when he visited

the residence, Milder indicated he had been living there and told Cundiff he could

not search the premises without a warrant.

       Special Agent Edward Sbertoli of the Division of Narcotics Enforcement

for the State of Iowa testified he was present on July 2 when the search of 2802

Highway 67 in Camanche was executed.            He testified that he assessed the

residence, took a walk around the property, and eventually searched the area of

a detached garage. Inside the garage, he located a wood-burning stove and

found a plastic container with burnt charring.      He also found part of second

smaller “plastic vessel.” Both containers appeared to contain a white sludgy-type

substance. Sbertoli conducted a pH test on both bottles, and both bottles had

either an acidic or slight acidic reaction, consistent with, but not dispositive of, a

portion of the methamphetamine cooking process. A large bucket was next to
                                             9


the stove. In the bucket were burnt and partially burnt items, including packaging

from pseudoephedrine tablets and a Camanche Pharmacy bag. Sbertoli was

called into a bedroom of the residence to collect a Ragu jar and plastic

containers containing a sludgy substance that were found in a plastic grocery

sack. From inside the Ragu jar, Sbertoli extracted and bagged a wet coffee filter.

Sbertoli testified the wood-burning stove was not hot and there were no obvious

signs of an active methamphetamine lab in the house when he arrived.

       Nila Bremer of the Iowa Department of Public Safety, Division of Criminal

Investigation, analyzed items of evidence submitted by the Camanche Police

Department in this case and authored a report regarding her findings. Bremer

analyzed one of the coffee filters retrieved from the July 2 search and found it

contained methamphetamine.2 She also found liquid in one of the containers

retrieved was consistent with petroleum distillate.           Bremer testified common

examples of petroleum distillate are mineral spirits, paint thinner, and charcoal

lighter fluid, which can be used in the manufacture of methamphetamine. A trace

amount of methamphetamine was collected from a bottle. She also performed

an analysis of a large glass sample jar obtained from the search, which

contained an unknown liquid residue. She concluded the liquid and the solid in

the jar contained chemical elements of sodium, chlorine, and sulfur, similar to

what one would see in an HCL generator used in the process of manufacturing

methamphetamine.




2
 She testified she did not test other coffee filters because they were in “close proximity,”
and if one tested positive, the others would as well.
                                       10


      Loper testified she was providing testimony as part of her plea agreement.

Though originally charged with two felonies, with a possible sentence of fifteen

years, she pled guilty to a lesser charge and received a suspended sentence.

Loper testified Everett Clark was her ex-boyfriend who was in Oakdale awaiting

imprisonment. Loper stated she met Milder through Clark; Milder and Clark were

cousins. Loper also knew Marquette, Wieseler, and Richardson. Loper testified

she first purchased pseudoephedrine to obtain methamphetamine in October

2012. She stated she provided Milder with a box of pseudoephedrine in the fall

of 2012 and approximately two hours later he returned with methamphetamine

for her personal use. Loper testified she and her two children joined Clark living

with Richardson in mid to late March 2013 and stayed there until the end of May.

She brought bunk beds to Richardson’s house. Loper testified:

              Q. Okay. Now, did you ever observe John Milder
      manufacturing meth out at Scott Richardson’s house? A. No, I’ve
      never observed him doing it. They were all in the back bedroom. I
      was out at the dining room table.
              Q. So you did not witness the whole process? A. No.
              Q. You said “they.” Who are you speaking of, “they”?
      A. Scottie Richardson and Everett Clark.
              Q. You’re talking about—was John not there, then?
      A. Yes. John Milder, too, was there.
              Q. He was there. Okay. Okay. What, exactly—you were
      sitting at the kitchen table? A. Yes.
              Q. Okay. So what, exactly, did you observe? A. Scottie—
      Scott Richardson and Everett Clark was running in and out. There
      was one time John did come out with a pop bottle with a tube out of
      it and he went into the other room. He come [sic] out to the kitchen
      and then he went back into the back bedroom.
              Q. When Scott and Everett were in and out, why were they
      in and out; do you know? A. They were getting stuff for John.
              Q. Okay. Did you see what kind of stuff they were getting?
      A. Coffee filters, cups.
              Q. Now, you indicated that they were in the back bedroom.
      Who was living in that bedroom? A. Scottie Richardson.
                                       11


            Q. And, now, would you have observed that this year, or
      would that have been in 2012? A. That would have been 2012.
            Q. Okay. Do you remember, was that in the fall or winter of
      2012, or do you remember? A. Fall.
            Q. Now, did you ever witness Everett manufacturing without
      John? A. Yes.
            Q. Okay. And where would that occur? A. Out at Scottie
      Richardson’s.
            Q. Okay. Would there be anybody assisting him? A. Curtis
      was there helping him and Scottie, and then, at that point in time, I
      was running back and forth, me and Scott Richardson was running
      back and forth to get them stuff.

She testified that she, along with Richardson, Clark, and Marquette, would

together obtain precursors to manufacture methamphetamine.        Loper testified

she   never   observed   Milder   purchase   any   precursors    but   had    used

methamphetamine with him.

      Randy Weimerskirch testified he had been married to Milder’s sister, Jami

Milder. On June 19, 2013, Camanche officers executed a search warrant at

Weimerskirch’s residence. Officers found no methamphetamine but observed

Coleman fuel, butane fuel, drain cleaner, an aquarium hose, a pill crusher,

isopropyl alcohol, cold packs, salt, lithium batteries, and Liquid Fire—all

consistent with the manufacture of methamphetamine. Weimerskirch testified for

the State under an immunity agreement to avoid charges involving the

possession of precursors.    Weimerskirch’s criminal record includes a prior

conviction for manufacturing methamphetamine and two theft convictions.

Weimerskirch testified that in the summer of 2012 he observed Milder at the

house on 13th Avenue in a bedroom holding a pop bottle with a hose hanging out

of it, which he “related to the process of cooking meth” by using a “smoker

bottle.” He also testified that he was at Richardson’s house one day that summer
                                       12


when Milder arrived with a bag and asked him to keep watch, presumably for law

enforcement, before heading to the detached garage for a couple hours. When

Milder returned to the house he had some methamphetamine and shared it with

Richardson and Weimerskirch. Weimerskirch further testified that his current

fiancée had a white pickup truck registered in her name but which Milder used.

On cross-examination, Weimerskirch admitted he was not completely honest with

officers during a post-arrest interview and could not remember what he did or did

not tell them about Milder. Weimerskirch acknowledged he and Milder had had

differences in the past and Milder had assaulted him.

      Following the close of the State’s case in chief, the court denied Milder’s

motion for judgment of acquittal, stating it viewed the testimony of the witnesses

pursuant to plea agreements as accomplice testimony rather than as

coconspirators or codefendants. The court found

      that in viewing the evidence in the light most favorable to the State
      at this time, there is sufficient evidence to generate a jury question
      as to whether or not the defendant, based on the evidence, would
      be found guilty of the offense charged and there is sufficient
      corroboration of the accomplice testimony in regard to the items
      seized from the residences of the defendant to avoid a verdict of
      acquittal.

      During a discussion of the proposed jury instructions, neither defense

counsel nor the State requested an instruction enumerating the elements of

conspiracy to manufacture methamphetamine. The jury was instructed, in part:

                             INSTRUCTION NO. 17
            An “accomplice” is a person who knowingly and voluntarily
      cooperates or aids in the commission of a crime.
            A person cannot be convicted only by the testimony of an
      accomplice. The testimony of an accomplice must be corroborated
      by other evidence tending to connect the defendant with the crime.
                                 13


        You are instructed that the Court has found that Curtis
Marquette, Amber Wieseler, and Carrie Loper were accomplices
and you must consider them accomplices.
        The defendant cannot be convicted only by accomplice
testimony. There must be other evidence tending to connect the
defendant with the commission of the crime. Such other evidence,
if any, is not enough if it just shows a crime was committed. It must
be evidence tending to single out the defendant as one of the
persons who committed it.

                       INSTRUCTION NO. 19
       The State must prove all of the following elements of
Manufacture and/or Conspiracy to Manufacture a Controlled
Substance, namely Methamphetamine:
       1. On or between June 1, 2012, and July 1, 2013, the
defendant knowingly manufactured or conspired to manufacture
methamphetamine.
       2. The defendant knew that the substance he manufactured
or conspired to manufacture was methamphetamine.
       If the State has proved both of these elements, the
defendant is guilty of Manufacture and/or Conspiracy to
Manufacture a Controlled Substance, namely Methamphetamine. If
the State has failed to prove either of the elements, the defendant
is not guilty of Manufacture and/or Conspiracy to Manufacture a
Controlled Substance, namely Methamphetamine, and you will then
consider the charge of Possession of a Controlled Substance
explained in Instruction No. 20.

                       INSTRUCTION NO. 20
       The State must prove both of the following elements of
Possession of a Controlled Substance:
       1. On or between June 1, 2012, and July 1, 2013, the
defendant knowingly or intentionally possessed methamphetamine.
       2. The defendant knew that the substance he possessed
was methamphetamine.
       If the State has proved both of these elements, the
defendant is guilty of Possession of a Controlled Substance. If the
State has failed to prove either of the elements, the defendant is
not guilty.

                    INSTRUCTION NO. 21
      As used in these instructions, for the defendant to know or
have knowledge means the defendant had a conscious awareness
that he was manufacturing methamphetamine or possessed
methamphetamine.
                                      14


                            INSTRUCTION NO. 25
              Merely because two or more persons associate with each
      other, or meet to discuss common interests or goals does not, by
      itself, establish an agreement or make one a member of a
      conspiracy.

                           INSTRUCTION NO. 26
            An “overt act” is any act indicating a person’s intent to
      accomplish manufacture of methamphetamine. The overt act itself
      does not have to be a criminal act. An overt act alone does not
      prove a conspiracy. A person who commits an overt act cannot be
      found guilty of Conspiracy unless that person also agreed and
      intended the manufacture of methamphetamine would be
      committed.

                             INSTRUCTION NO. 27
               The State does not have to prove the defendant knew all the
      details of the conspiracy nor all the other persons who had agreed
      to commit manufacture of methamphetamine. However, the State
      must prove the defendant knowingly participated in the agreement
      at some time. If a person performs an act that promotes or
      facilitates the purpose of the conspiracy without knowledge of the
      conspiracy, he is not a conspirator.

                             INSTRUCTION NO. 28
               Whether a person is a conspirator depends upon his own
      conduct or statements. If, however, you find the defendant agreed
      the manufacture of methamphetamine would be committed, then
      the conduct or statements of the others who agreed to commit
      manufacture of methamphetamine may be considered as evidence
      against him, providing the conduct or those statements promoted or
      facilitated the purpose of the conspiracy and occurred before the
      conspiracy ended. It is not necessary the conduct or statement of
      the others occurred in the defendant’s presence.

                           INSTRUCTION NO. 29
             A conspiracy requires an agreement between at least two
      persons. A person may be found guilty of Conspiracy even though
      the persons with whom he agreed have not been charged or tried.

      In closing arguments, the State argued, “I have to prove that the

defendant manufactured methamphetamine or he conspired to manufacture

methamphetamine beyond a reasonable doubt.”         The prosecutor referred to

“codefendants” during closing arguments and named “Curtis,” “Amber,” “Scott,”
                                        15


Everett Clark, and Carrie Loper, then stated, “The defendant is the common

denominator. . . . They were all brought together because of their common

interest in using meth, their addiction to meth, and their relationship with the

defendant.”

       Defense counsel argued:

              The law is also pretty clear when it comes to these
       conspiracy cases. The law is clear that mere association is not
       enough. The State must prove more than just the fact that some
       people have come together to do—come together to charge
       somebody with a crime. Now, here is Instruction 17, which the
       Court will give you. This is the accomplice jury instruction. The law
       is clear that nobody can be convicted solely on the testimony of an
       accomplice, that there must be more evidence connecting
       somebody to a crime.
              ....
              . . . The common denominator isn’t enough. They need to
       show you more than just John knew these folks. They got to show
       you more than just, these folks, who obviously worked together, are
       working together again to try to get themselves out of trouble.

       After the jury had deliberated for some time, they sent a note, “Can we

have the definition of conspiracy?” Over Milder counsel’s objection that “they’ve

already been instructed on conspiracy in Instruction No. 29” and that “given the

State did not charge a separate count for conspiracy, this definition is far too

broad for what they’ve already been instructed as to, and we believe it would be

more prejudicial than any value it has,” the court provided this supplemental

instruction:

                             INSTRUCTION NO. 24A
              The State must prove the defendant and Curtis Marquette,
       Amber Wieseler and/or Carrie Loper came to a mutual
       understanding the manufacture of methamphetamine would be
       attempted or committed. The agreement can be oral or written,
       informal or formal, and need not be detailed. It may be proven by
       direct or circumstantial evidence of a person’s words, actions or
       gestures.
                                        16



       The jury returned a verdict finding Milder guilty of “Manufacture and/or

Conspiracy to Manufacture a Controlled Substance, namely Methamphetamine.”

       Milder appeals, contending his trial counsel was ineffective in failing to

object to the jury instructions, which stated the charges in the disjunctive and did

not instruct on the essential elements of the conspiracy alternative. He also

contends he was prejudiced by the trial court’s supplemental jury instruction.

II. Scope and Standards of Review.

       Because they are grounded in the Sixth Amendment to the United States

Constitution, we review ineffective-assistance-of-counsel claims de novo. State

v. Thorndike, 860 N.W.2d 316, 319 (Iowa 2015).

       We review the court’s decision whether to give further instruction to the

jury for an abuse of discretion. State v. Watkins, 463 N.W.2d 15, 18 (Iowa 1990).

III. Discussion.

       Ineffective-assistance-of-counsel claim. To succeed on an ineffectiveness

claim, Milder must show his trial counsel failed to perform an essential duty and

this failure resulted in prejudice. See Strickland v. Washington, 466 U.S. 668,

(1984); State v. Corsi, 686 N.W.2d 215, 221 (Iowa 2004); State v. Graves, 668

N.W.2d 860, 869 (Iowa 2003).          “Although ineffective-assistance-of-counsel

claims should generally be preserved for a postconviction relief action where a

more complete factual record can be developed, such claims will be resolved on

direct appeal where it appears the outcome will not be altered by taking

additional evidence.” Corsi, 686 N.W.2d at 221.
                                       17


      Iowa Code section 124.401(1) makes it a crime “for any person to

manufacture, deliver, or possess with the intent to manufacture or deliver, a

controlled substance . . . or conspire with one or more other persons to

manufacture, deliver, or possess with the intent to manufacture or deliver a

controlled substance.” Subparagraph (c)(6) classifies the offense as a “C” felony

if the crime involves “five grams or less methamphetamine.” Iowa Code

§ 124.401(1)(c)(6).

      “While section 124.401(1) prohibits a variety of conduct, it essentially

defines one prohibition that can be violated in a number of ways.” State v. Kern,

831 N.W.2d 149, 158 (Iowa 2013); see also State v. Parrish, 502 N.W.2d 1, 3

(Iowa 1993) (discussing Iowa Code section 204.401(1), the predecessor of

Iowa’s current controlled substance statute). Our case law establishes that

      a jury need not concur in a single view of the transaction disclosed
      by the evidence. If substantial evidence is presented to support
      each alternative method of committing a single crime, and the
      alternatives are not repugnant to each other, then unanimity of the
      jury as to the mode of commission of the crime is not required.

Corsi, 686 N.W.2d at 222 (citations and internal quotation marks omitted).

      Milder was charged with two alternative methods of violating section

124.401(1)(c)—manufacturing methamphetamine and conspiracy to manufacture

methamphetamine.       Instructional error here concerns the conspiracy-to-

manufacture-methamphetamine alternative.

      Under the definition of conspiracy set forth in Iowa Code section 706.1, to

convict the defendant of conspiracy to manufacture a controlled substance, the

State must prove (1) the defendant agreed with one or more persons that one or

both of them would manufacture or attempt to manufacture methamphetamine;
                                           18


(2) the defendant entered into such an agreement with the intent to promote or

facilitate the manufacture of methamphetamine; (3) one of the parties to the

agreement committed an overt act to accomplish the manufacturing of

methamphetamine; and (4) the alleged co-conspirator was not a law enforcement

agent or assisting law enforcement when the conspiracy began. See Kern, 831

N.W.2d at 158 (citing Iowa Code § 706.1 and State v. Fintel, 689 N.W.2d 95, 102

(Iowa 2004)); see also Iowa Crim. Jury Instrs. 6001.1–.8.

         When reviewing the jury instructions that were actually given by a district

court, “we are trying to determine whether the instructions actually given by the

district court accurately portray the applicable law to the jury.” State v. Becker,

818 N.W.2d 135, 144 (Iowa 2012). “A jury instruction that omits an element of a

criminal offense is erroneous and not a correct statement of the law.” State v.

Hoyman, ___ N.W.2d ___, ___, 2015 WL 1955663, at *14 (Iowa 2015); see State

v. Pearson, 804 N.W.2d 260, 265 n.1 (Iowa 2011) (holding the omission of one

element of the offense from a jury instruction necessitated a new trial); State v.

Schuler, 774 N.W.2d 294, 298–99 (Iowa 2009) (finding an instruction that

allowed the jury to convict the defendant without finding all elements of the

offense was erroneous and ordering a new trial).

         The State concedes the instructions given here were erroneous in that

they failed to include Iowa Criminal Jury Instructions 600.1 and 600.7.3 The




3
    Instruction 600.1 provides:
          600.1 Conspiracy - Elements. The State must prove all the following
          elements of Conspiracy:
                  1. On or about the ___ day of ___________, 19___, the defendant
          agreed with (name(s) of co-conspirators)
                                             19


State also concedes trial counsel breached an essential duty in not objecting to

the instructions.    However, because the claim is raised as one of ineffective

assistance of counsel, the State argues the presumption of prejudice is not

available to Milder4 and he cannot prove prejudice because the instructions

“addressed concepts relevant to the conspiracy alternative.” The State argues

“other instructions separately advised the jury on the conspiracy concepts and

the State’s burden to prove Milder’s connections and/or involvement.”                    We

disagree.

       An ineffectiveness claim was rejected in Corsi where defense counsel

failed to object to erroneous jury instructions on manufacturing and conspiracy

offenses because there was no prejudice to the defendant. See 686 N.W.2d at

221-23. There the court noted,


                        a. that one or more of them would commit the
                (offense), or solicit another to commit the (offense); or
                        b. attempt to commit the (offense).
                2. The defendant entered into the agreement with the intent to
        promote or facilitate (name of felony or aggravated misdemeanor).
                3. The defendant, or (name(s) of alleged co-conspirator(s))
        committed an overt act.
                4. (Name(s) of alleged co-conspirator(s)) [was] [were] not [a] law
        enforcement agent(s) investigating the (offense) or assisting law
        enforcement agents in the investigation when the conspiracy began.
                If the State has proved all of these elements, the defendant is
        guilty of Conspiracy. If the State has failed to prove any one of the
        elements, the defendant is not guilty.
Instruction 600.7 provides:
        600.7 Conspiracy - Separate Offense. Conspiracy is a crime separate
        from the (offense). The (offense) does not have to be committed. Even if
        you find (offense) was committed, you cannot find the defendant guilty of
        Conspiracy unless the State proves the defendant conspired to commit
        (offense), and an overt act was performed.
4
  See Thorndike, 860 N.W.2d at 321-22 (stating a defendant raising an ineffectiveness
claim grounded on counsel’s failure to object to jury instructions “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”).
                                        20


       Although the instruction may have been subject to a valid criticism
       that it inappropriately classified two alternative ways of violating
       section 124.401(1) as conspiracy, the error was one of labeling and
       not one of substance. Consequently, there was no prejudice to the
       defendant that would have required competent counsel to lodge an
       objection.

Id. at 223 (emphasis added). The same cannot be said here.

       Even acknowledging that the jurors did not have to agree on the method

of violation of section 124.401(1)(c), the instructions did not require the State to

prove all the necessary elements of conspiracy, and thus the instructions are

fatally flawed.   As noted above, to convict the defendant of conspiracy to

manufacture methamphetamine, the State was required to prove beyond a

reasonable doubt (1) the defendant agreed with one or more persons that one or

both of them would manufacture or attempt to manufacture methamphetamine;

(2) the defendant entered into such an agreement with the intent to promote or

facilitate the manufacture of methamphetamine; (3) one of the parties to the

agreement committed an overt act to accomplish the manufacturing of

methamphetamine; and (4) the alleged co-conspirator was not a law enforcement

agent or assisting law enforcement when the conspiracy began. See Kern, 831

N.W.2d at 158.

       (1) The defendant agreed with one or more persons that one or both of

them would manufacture or attempt to manufacture methamphetamine.               The

State notes that Instruction No. 27 advised “the State must prove the defendant

knowingly participated in the agreement at some time.” Instruction No. 29 states

a conspiracy “requires an agreement between at least two persons.” Not until
                                         21


the court gave the supplemental instruction5 was the jury informed that the State

must prove the “defendant agreed with one or more persons that one or both of

them would manufacture or attempt to manufacture methamphetamine.”

       (2) The defendant entered into such an agreement with the intent to

promote or facilitate the manufacture of methamphetamine. No instruction given

to the jury here requires the State to prove this intent element.

       (3) One of the parties to the agreement committed an overt act to

accomplish the manufacturing of methamphetamine. While Instruction No. 26

includes the “concept” of an overt act, the instructions given do not require the

State to prove “one of the parties to the [conspiracy] agreement committed an

overt act to accomplish the manufacturing of methamphetamine” as required.

See id.

       We also note that in closing arguments neither the State nor the defense

addressed either the element of intent or the commission of an overt act in

furtherance of a conspiracy.

       (4) The alleged co-conspirator was not a law enforcement agent or

assisting law enforcement when the conspiracy began.                This element is

completely lacking in the instructions given, though we acknowledge this element

was not at issue at trial.

       After being given the instructions, which lacked the elements of conspiracy

to manufacture, the jury deliberated for five hours and then sought an additional

instruction on the definition of conspiracy.    This is indicative the instructions

5
 “The State must prove the defendant and Curtis Marquette, Amber Wieseler and/or
Carrie Loper came to a mutual understanding the manufacture of methamphetamine
would be attempted or committed.”
                                        22


caused confusion because notwithstanding all the instructions the State now

relies upon to support the verdict, the jury did not understand the very definition

of conspiracy. See State v. Hanes, 790 N.W.2d 545, 551 (Iowa 2010) (stating

“[o]ur analysis of prejudice is also influenced by an evaluation of whether a jury

instruction could reasonably have misled or misdirected the jury” and citing

Anderson v. Webster City Cmty. Sch. Dist., 620 N.W.2d 263, 268 (Iowa 2000),

which held in a civil case the trial court commits prejudicial error when an

instruction “materially misstates the law, confuses or misleads the jury, or is

unduly emphasized”).

       In a case in which trial counsel fails to object to an erroneous instruction,

certain factors may militate against a finding of prejudice. State v. Miles, 344

N.W.2d 231, 235 (Iowa 1984).        First, prejudice may not exist if a separate

instruction correctly informs the jury of the element omitted from the marshalling

instruction. Id. In this case there exist no separate instructions correctly stating

that the State was required to prove the intent to promote or facilitate the

manufacture of methamphetamine and that one of the parties to the agreement

committed an overt act to accomplish the manufacturing of methamphetamine.

Second, prejudice may not exist if the element in question is not a fighting issue

in the case. Id. That is not the case here as Milder denied both alternatives

charged. Third, prejudice may not exist where the evidence of guilt is so strong

there is no reasonable probability the result would have been different if the

instruction in question had been correctly stated. State v. Hopkins, 576 N.W.2d

374, 380 (Iowa 1998). Here, we find the length of the deliberation time, while not

exceedingly long, contradicts the State’s contention that there was overwhelming
                                           23


evidence that Milder manufactured methamphetamine.                After five hours of

deliberation, the jury sought a definition of conspiracy. And, after receiving the

supplemental instruction, the jury deliberated just another hour and twenty

minutes before returning a guilty verdict. Unfortunately, the verdict was premised

upon instructions that failed to identify the State’s obligation to prove the proper

elements of conspiracy.

       In light of the State’s concession of trial counsel’s breach of duty in failing

to object to the faulty jury instructions, and the omission of multiple elements of

the alternative the jury was deliberating, we conclude Milder has established the

necessary prejudice for his ineffectiveness claim. No reasonable or legitimate

strategy supports trial counsel’s failure to object to the marshalling instruction.

Cf. State v. Williams, No. 13-1144, 2014 WL 3747691, at *8 (Iowa Ct. App. July

30, 2014) (preserving ineffectiveness claim where trial strategy may explain

counsel’s failure to request a specific-intent instruction).      Although there was

ample evidence of manufacturing of methamphetamine, Milder was only one of

several suspects, and we cannot conclude with any degree of certainty that the

jury would have found Milder guilty beyond a reasonable doubt if it had been

properly instructed on the conspiracy theory.6 See Schuler, 774 N.W.2d at 300.

       In Strickland, which established the two-prong standard to address

ineffective-assistance-of-counsel claims, the court stated:

              A number of practical considerations are important for the
       application of the standards we have outlined. Most important, in
       adjudicating a claim of actual ineffectiveness of counsel, a court

6
 Where there is legal error and it is impossible to determine if the verdict rests upon a
valid legal basis, reversal is required. See State v. Lathrop, 781 N.W.2d 288, 297 (Iowa
2010); State v. Heemstra, 721 N.W.2d 549, 558 (Iowa 2006).
                                        24


      should keep in mind that the principles we have stated do not
      establish mechanical rules. Although those principles should guide
      the process of decision, the ultimate focus of inquiry must be on the
      fundamental fairness of the proceeding whose result is being
      challenged. In every case the court should be concerned with
      whether, despite the strong presumption of reliability, the result of
      the particular proceeding is unreliable because of a breakdown in
      the adversarial process that our system counts on to produce just
      results.

466 U.S. at 696. Here, we have a fundamentally unfair proceeding, and we are

not confident in its result. Because we cannot uphold Milder’s conviction on

these flawed instructions and trial counsel’s failure to object to them, we reverse

and remand for new trial.

      REVERSED AND REMANDED.
