                    IN THE COURT OF APPEALS OF IOWA

                                 No. 4-020 / 13-0144
                                 Filed March 12, 2014

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

CARI JO BERGSTROM,
      Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Clay County, Charles K. Borth,

District Associate Judge.



      A defendant appeals her conviction for theft in the third degree.

CONVICTION CONDITIONALLY AFFIRMED; SENTENCE VACATED AND

REMANDED FOR RESENTENCING.



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

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Heather R. Quick, Assistant Attorney

General, Michael J. Houchins, County Attorney, and Kristi Busee, Assistant

County Attorney, for appellee.



      Considered by Vogel, P.J., and Tabor and McDonald, JJ.
                                          2



McDONALD, J.

       Cari Jo Bergstrom appeals her conviction for theft in the third degree. She

contends there was insufficient evidence to support the conviction, her trial

counsel rendered ineffective assistance by failing to object to an incomplete jury

instruction on aiding and abetting, and the district court applied the incorrect

standard when considering Bergstrom’s motion for new trial. She also contends

the sentence imposed was not authorized by statute. We conditionally affirm

Bergstrom’s conviction, vacate the sentence, and remand for resentencing.

                                          I.

       The State charged Bergstrom by trial information filed April 20, 2012, with

theft in the third degree, in violation of Iowa Code sections 714.1(1) and 714.2(3)

(2011). The State alleged that Bergstrom stole Xbox 360 and Wii video games

valued between $500 and $1000 from Wal-Mart in Spencer. The proceeding

came on for jury trial on December 18, 2012. Although there appeared to be

ample evidence that Bergstrom was a principal in the theft, the State prosecuted

Bergstrom under an aiding-and-abetting theory.

       At trial, the State called a single witness, Christian Carlson. At the time of

trial, Carlson was employed by the Clay County Sheriff’s Office.              Before

commencing employment with the Clay County Sheriff, Carlson worked as an

asset protection associate for Wal-Mart.        As an asset protection associate,

Carlson’s responsibilities included the investigation of shoplifting.

       At the end of December 2011, Carlson started working at the Spencer

Wal-Mart. Carlson’s supervisor asked him to investigate several customers who
                                         3



frequently returned merchandise with a high dollar value in exchange for cash or

a gift card. As a part of his investigation, Carlson reviewed surveillance footage

from the Spencer store’s cameras and “started investigating who was coming

with who, what vehicles they were using, [and] the items that they were

returning.”   Carlson became suspicious of customer Tohnya Carney.             When

Carlson reviewed surveillance footage from December 23, 2011, it showed

Bergstrom in the store with Carney.            Carlson identified Bergstrom in the

courtroom. He testified as to what the surveillance footage showed:

       From what I can see on the video I can 100 percent visually notify it
       was Cari Bergstrom and Tohnya Carney selecting games and
       concealing them and exiting the store without going through a
       register and purchasing them.

The State entered the video into evidence and played it for the jury.

       The jury found Bergstrom guilty of third-degree theft. The court sentenced

her to a term of incarceration not to exceed two years in the custody of the Iowa

Department of Corrections.     The court suspended all but twenty days of the

sentence, which were to be served in the local jail, and ordered two years’

probation. Bergstrom now appeals.

                                         II.

                                         A.

       Bergstrom contends there is insufficient evidence to support the verdict.

Specifically, she contends the evidence does not show that she and Carney

actually left the store with the items, that she aided and abetted any such theft, or

that the value of the games was in excess of $500. We review challenges to the
                                         4



sufficiency of the evidence for the correction of errors at law. State v. Sanford,

814 N.W.2d 611, 615 (Iowa 2012).

       We first discuss the instructions provided to the jury. The court instructed

the jury the State must prove the following elements of theft:

              1. On or about the 23rd day of December, 2011, [Bergstrom]
       took possession or control of property of Wal-Mart, to wit: multiple
       Xbox games and Wii games.
              2. [Bergstrom] did so with the intent to deprive Wal-Mart of
       the property.
              3. The property, at the time of the taking, belonged to Wal-
       Mart.

The court gave the jury the uniform instructions regarding both general intent and

specific intent.   The court provided the following instruction on aiding and

abetting:

               All persons involved in the commission of a crime, whether
       they directly commit the crime or knowingly “aid and abet” its
       commission, shall be treated in the same way.
               “Aid and abet” means to knowingly approve and agree to the
       commission of a crime, either by active participation in it or by
       knowingly advising or encouraging the act in some way before or
       when it is committed. Conduct following the crime may be
       considered only as it may tend to prove the defendant’s earlier
       participation. Mere nearness to, or presence at the scene of the
       crime, without more evidence, is not “aiding and abetting.”
       Likewise, mere knowledge of the crime is not enough to prove
       “aiding and abetting.”
               The guilt of a person who knowingly aids and abets the
       commission of a crime must be determined only on the facts which
       show the part she has in it, and does not depend upon the degree
       of another person’s guilt.
               If you find the State has proved the defendant directly
       committed the crime, or knowingly “aided and abetted” other
       person(s) in the commission of the crime, then the defendant is
       guilty of the crime charged.
                                           5



Missing from the aiding and abetting instruction was an additional paragraph

from the uniform jury instruction that addressed specific intent offenses in the

context of aiding and abetting. The omitted paragraph states:

              The crime charged requires a specific intent. Therefore,
       before you can find the defendant “aided and abetted” the
       commission of the crime, the State must prove the defendant either
       has such specific intent or “aided and abetted” with the knowledge
       the others who directly committed the crime had such specific
       intent. If the defendant did not have the specific intent, or
       knowledge the others had such specific intent, [she] is not guilty. 1

       Bergstrom did not object to the omission of this paragraph from the aiding-

and-abetting instruction. Therefore, the instruction given is the law of the case

for purposes of our review as to the sufficiency of the evidence. See State v.

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

       “A jury’s guilty verdict is binding upon us unless we conclude the record

lacks substantial evidence to support such a finding.” See State v. Astello, 602



1
   The omission of this paragraph, resulting in an incomplete aiding-and-abetting
instruction, has been a frequent basis for appeal and has caused us to reverse
convictions on two other occasions in the past year. See State v. Burton, No. 12-2223,
2013 WL 5760635, at *4-5 (Iowa Ct. App. Oct. 23, 2013) (discussing counsel’s failure to
object to the omission of the paragraph at issue herein and concluding counsel rendered
ineffective assistance); State v. Sims, No. 11-1887, 2013 WL 530583, at *4 (Iowa Ct.
App. Feb. 13, 2013) (same); see also Shepherd v. State, No. 09-0598, 2010 WL
2757081, at *4 (Iowa Ct. App. July 14, 2010) (finding omitted paragraph of the aiding
and abetting instruction “would have been useful” if Shepherd had claimed his
codefendant committed the crime rather than pursuing a general denial defense); State
v. Feye, No. 07-0797, 2008 WL 2514740, at *3-4 (Iowa Ct. App. June 25, 2008)
(preserving ineffective-assistance-of-counsel claim based on omission of this paragraph
in shoplifting case similar to the case at bar); Houston v. State, No. 05-1591, 2007 WL
254543, at *3-5 (Iowa Ct. App. Jan. 31, 2007) (rejecting ineffective-assistance claim
based on the omission of this paragraph because State offered overwhelming evidence
such that defendant could not demonstrate prejudice); State v. Perez-Castillo, No. 05-
0362, 2006 WL 2419143, at *2-3 (Iowa Ct. App. Aug. 23, 2006) (preserving similar
ineffective-assistance claim because record suggested the possibility counsel’s approval
of the aiding and abetting instruction without inclusion of specific intent language was
“conscious and informed decision”).
                                        6



N.W.2d 190, 197 (Iowa Ct. App. 1999). Evidence is substantial if it can “convince

a rational trier of fact the defendant is guilty of the crime charged beyond a

reasonable doubt.” Id. More specifically, “the relevant question in our review of

the case ‘is whether, after viewing all the evidence in the light most favorable to

the prosecution, any rational trier of facts could have found the essential

elements of the crime beyond a reasonable doubt.’”          Id. (quoting State v.

Anderson, 517 N.W.2d 208, 211 (Iowa 1994)). We recognize the jury is “free to

reject certain evidence, and credit other evidence.” State v. Nitcher, 720 N.W.2d

547, 556 (Iowa 2006). After conducting a thorough review of the trial record, we

conclude the jury’s verdict is supported by substantial evidence. We will discuss

the evidence in greater detail in resolving Bergstom’s claim for ineffective

assistance of counsel.

                                        B.

      Bergstrom contends her trial counsel rendered ineffective assistance by

failing to request the specific intent language be inserted into the aiding-and-

abetting instruction. We typically resolve ineffective-assistance-of-counsel claims

in postconviction-relief proceedings. See State v. Maxwell, 743 N.W.2d 185, 195

(Iowa 2008). When such claims are presented on direct appeal, however, the

“court may decide the record is adequate to decide the claim or may choose to

preserve the claim for determination under chapter 822.” Iowa Code § 814.7(3).

Where, as here, the record is sufficient to permit a ruling, we will address the

claim on direct appeal. See Maxwell, 743 N.W.2d at 195. We review claims of
                                        7



ineffective assistance of counsel de novo. See Castro v. State, 795 N.W.2d 789,

792 (Iowa 2011).

      To establish a claim for ineffective assistance of counsel, Bergstrom must

show by a preponderance of the evidence (1) counsel failed to perform an

essential duty and (2) prejudice resulted. See King v. State, 797 N.W.2d 565,

571 (Iowa 2011). With respect to the prejudice prong, our ultimate inquiry is

whether trial counsel’s allegedly deficient performance caused a complete

“breakdown in the adversary process” such that the conviction is unreliable. See

Strickland v. Washington, 466 U.S. 668, 687 (1984). This requires the defendant

to establish “‘there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.’”

Lamasters v. State, 821 N.W.2d 856, 866 (Iowa 2012) (quoting Strickland, 466

U.S. at 694). The most important factor in determining whether the defendant

suffered prejudice is the strength of the State’s case. See State v. Carey, 709

N.W.2d 547, 559 (Iowa 2006). Where overwhelming evidence establishes the

defendant’s guilt, and therefore the absence of prejudice, we can resolve the

defendant’s claim without addressing the issue of whether counsel breached an

essential duty. See Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001) (noting

if a “claim lacks prejudice, it can be decided on that ground alone without

deciding whether the attorney performed deficiently”). We thus first determine

whether Bergstrom suffered prejudice as a result of trial counsel’s performance.

      Bergstrom and Carney entered Wal-mart together at approximately 5:00

p.m. They immediately separated. Carney walked directly to customer service
                                        8



to return items, and Bergstrom walked directly to the video game display case.

Bergstrom looked over the display for several minutes. Then, over the course of

the next eight minutes, Bergstrom personally took possession of at least nine

games and placed them on top of her purse, which was in the smaller, top basket

of the shopping cart. Carney joined Bergstrom at the video game case and

placed her purse and bags next to Bergstrom’s in the top basket of the shopping

cart. Carney and Bergstrom took possession of additional games and placed

them on top of the purses and bags. Carney did this in Bergstrom’s presence.

There can be no doubt that Bergstrom saw Carney take possession of these

additional video games.

      After Bergstrom and Carney each personally took games from the display,

they meandered through the store, crowded with holiday shoppers, without doing

any additional shopping.     Bergstrom and Carney walked side-by-side and

chatted, each positioned at the rear of the shopping cart.       After about five

minutes of wandering through store aisles crowded with holiday shoppers,

Bergstrom and Carney entered the pet aisle, which had no other foot traffic.

Bergstrom then left Carney’s side and positioned herself several feet in front of

the shopping cart. Over the next four minutes, Bergstrom remained in front of

the cart looking up and down the aisle. During this same time, Carney appeared

to be placing the games in the bags and purses. At one point, Carney dropped

what appeared to be a video game on the floor, scrambled to pick it up, and put it

back inside one of the bags or purses. Once another customer entered the aisle,
                                          9



Bergstrom and Carney ceased what they were doing and again started walking

through the store.

       Bergstrom and Carney walked through the store for another five minutes

without doing any additional shopping. They abandoned their shopping cart, took

their bags, and exited the store without approaching the checkout lanes or paying

for any items.    At no point does the video surveillance footage show either

Bergstrom or Carney placing the videogames back onto any shelf.

       Carlson testified, based on his training and experience as an asset

protection associate, that Bergstrom and Carney’s conduct was consistent with

shoplifting:

               A major one that is very popular is when females come into
       the store they will sit their purse directly on top of a cart. When
       they select their items, they will place items next to or on top of the
       purse so when they—they just have to go down an aisle, they can
       very easily slip the items into the purse . . . and use their back for
       cover.
               ....
               . . . If there is . . . a group . . . some will be lookouts, some
       will stand back and block, others will help them conceal so it’s
       much faster.

       Carlson also provided testimony regarding the value of the stolen games.

According to Carlson, Bergstrom and Carney stole $939.29 in games by taking

seventeen X-box games and three Wii games. Carlson determined the dollar

amount in two ways. First, he analyzed the inventory of the shelves from which

the games were removed. He testified he also could determine the value of the

games by looking at the surveillance footage and locating the shelf from which

Carney or Bergstrom had removed a game. Carlson explained the games were
                                         10



organized by price: the top shelf sold for $69.99, the next shelf down held $59.99

games, and so on through games priced at $29.99.

       This is not a typical aiding and abetting case where the defendant was

merely present at a crime scene with another and there is a real question

whether the defendant had the specific intent to commit theft—the “wrong place

at the wrong time” or “guilt by association” cases. Here, the surveillance footage

showed Bergstrom actively participated in the theft. See State v. Hustead, 538

N.W.2d 867, 869 (Iowa Ct. App. 1995) (stating that an aider and abettor

approves of criminal act through active participation or encouragement). What

inference could be drawn—other than Bergstrom had the specific intent to

commit theft and aid and abet Carney’s theft—from surveillance footage that

showed Bergstrom entered the store with Carney, personally took at least nine

video games from the display, watched her friend take more, wandered through

the store until finding a relatively traffic free aisle, stood awkwardly away from her

friend and in front of her shopping cart for four minutes while her friend secreted

the items in their bags and purses, and walked out the front door without paying?

See id. at 870 (stating that intent may be shown by circumstantial evidence,

including presence, companionship, and conduct).            We conclude there is

overwhelming evidence supporting each of the elements of the offense, including

the requisite specific intent. See, e.g., State v. Parker, No. 11-1422, 2012 WL

3027108, at *2-3 (Iowa Ct. App. Jul. 25, 2012) (affirming conviction for theft as an

aider and abettor where defendant and principal entered store, defendant

personally selected a DVD from shelf and handed it to principal, and walked
                                        11



through store with principal); State v. Kirk, No. 10-0931, 2011 WL 5394270, at *3

(Iowa Ct. App. Nov. 9, 2011) (holding that defendant failed to establish prejudice

where video surveillance showed defendant and/or co-defendants taking

possession of property); State v. Rosillo, No. A10-216, 2011 WL 382594, at *3-4

(Minn. Ct. App. Feb. 8, 2011) (holding evidence sufficient to support conviction

for aiding and abetting where video surveillance footage showed defendant

arrived and left with co-defendants and served as lookout); State v. Gorayeb, No.

09-BE-15, 2010 WL 2250439, at *4 (Ohio Ct. App. June 4, 2010) (holding

evidence sufficient to support conviction for aiding and abetting theft where

defendant watched principal take possession of items, walked through store with

principal, and watched principal conceal items in her purse); State v. Smith, 13

So. 3d 570, 575 (La. Ct. App. 2009) (holding evidence sufficient where video

footage showed defendant actively participated in theft).

      Given the strength of the State’s case, Bergstrom has not established a

reasonable probability that the result would have been different had the jury been

instructed in accord with the complete uniform jury instruction. Accordingly, her

claim fails. See Shepherd, 2010 WL 2757081, at *5 (holding defendant failed to

establish prejudice resulting from failure to request specific intent language in

aiding-and-abetting instruction); Houston, 2007 WL 254543, at *5 (same).

                                        C.

      Bergstrom next contends the district court abused its discretion in denying

her motion for new trial.      Iowa Rule of Criminal Procedure 2.24(2)(b)(6)

authorizes the district court to grant a new trial when “the verdict is contrary to
                                        12



law or evidence.” “[A] verdict is contrary to the evidence under this rule if it is

‘contrary to the weight of the evidence.’” State v. Wells, 738 N.W.2d 214, 219

(Iowa 2007). Unlike the sufficiency-of-the-evidence standard applied on a review

of a motion for judgment of acquittal, the district court, in determining whether a

new trial should be granted, has much broader power under the weight-of-the-

evidence standard, including the ability to weigh the evidence and consider the

credibility of witnesses. See State v. Ellis, 578 N.W.2d 655, 658-59 (Iowa 1998).

“On a weight-of-the-evidence claim, appellate review is limited to a review of the

exercise of discretion by the trial court, not of the underlying question of whether

the verdict is against the weight of the evidence.” State v. Reeves, 670 N.W.2d

199, 203 (Iowa 2003); see also State v. Serrato, 787 N.W.2d 462, 472 (Iowa

2010). However, our review of a claim the district court applied an incorrect legal

standard is for legal error. See State v. Robinson, 506 N.W.2d 769, 770 (Iowa

1993).

         In reviewing the hearing on Bergstrom’s motion for new trial, we conclude

the district court’s ruling does not show it considered the weight of the evidence

and determined whether “a greater amount of credible evidence supports one

side of an issue . . . than the other.” Reeves, 670 N.W.2d at 202. The remedy is

to vacate the district court’s ruling on the motion for new trial and remand for

application of the weight-of-the-evidence standard. See State v. Nitcher, 720

N.W.2d 547, 560 (Iowa 2006) (reversing where the district court did not indicate it

weighed the evidence); State v. Scalise, 660 N.W.2d. 58, 66 (Iowa 2003) (same);

Ellis, 578 N.W.2d at 659 (same). If the district court determines Bergstrom’s
                                        13



motion for new trial should be overruled, the conviction shall stand affirmed, but

she shall be resentenced based on our disposition of her illegal sentence claim.

If the district court grants the motion, Bergstrom’s conviction and sentence shall

be vacated, and a new trial granted. We do not retain jurisdiction.

                                        D.

       “A sentence must comply with all applicable sentencing statutes[, and i]f a

sentence is not authorized by statute, it is void.” State v. Manser, 626 N.W.2d

872, 874 (Iowa Ct. App. 2001).       At sentencing, the district court heard the

arguments of counsel and was informed of Bergstrom’s criminal history, including

a prior conviction for burglary in the second degree and three prior convictions for

theft in the fifth degree.     The district court sentenced Bergstrom to an

indeterminate term of incarceration not to exceed two years, suspended all but

twenty days of that sentence, and placed Bergstrom on probation. The district

court ordered that the twenty days’ incarceration be served in the county jail.

       Bergstrom acknowledges the sentence for an indeterminate term not to

exceed two years is the authorized sentence for an aggravated misdemeanor.

See Iowa Code § 903.1(2). She contends the court was without authority to

suspend only part of that sentence and order her to serve any portion of the

sentence in the county jail. See id. § 903.4 (providing for confinement of periods

of one year or less “in a place to be furnished by the county”). We agree the

district court was without authority to suspend only a portion of Bergstrom’s

indeterminate sentence:

       We conclude that the language in section 901.5(3), which
       authorizes a sentencing judge to “suspend the execution of the
                                        14



      sentence or any part of it,” is only intended to authorize the
      suspension of a portion of a sentence in regard to determinate
      sentencing orders. No such authority exists with respect to an
      indeterminate sentence.

State v. Formaro, 638 N.W.2d 740, 741-42 (Iowa 2002). We therefore vacate

Bergstrom’s sentence and remand for resentencing.

      CONVICTION CONDITIONALLY AFFIRMED; SENTENCE VACATED

AND REMANDED FOR RESENTENCING.

      Vogel, P.J., concurs; Tabor, J., dissents in part.
                                             15



TABOR, J. (concurring in part and dissenting in part)

         I respectfully dissent from the majority’s opinion on the claim of ineffective

assistance of counsel. I believe Bergstrom was prejudiced by her attorney’s

failure to ensure the jury was properly instructed on the State’s burden to prove

her specific intent under its aiding-and-abetting theory. As the majority noted in a

footnote, our court has twice reversed convictions in the past year based on

defense counsel’s failure to object to an incomplete aiding-and-abetting

instruction. See State v. Burton, No. 12-2223, 2013 WL 5760635, at *4-5 (Iowa

Ct. App. Oct. 23, 2013) (finding confidence in outcome undermined because

jurors were improperly instructed); State v. Sims, No. 11-1887, 2013 WL 530583,

at *4 (Iowa Ct. App. Feb. 13, 2013) (remanding for a new trial because jury could

have found defendant guilty without finding requisite specific intent to commit

theft). I think we should take the same course here.

         In this case, the marshalling instruction was phrased as if Bergstrom was

the principal, asking the jury to determine if she took possession or control of

property with the intent to deprive the owner. The district court then instructed

the jury that the defendant was also guilty if the State proved she aided and

abetted another person in the commission of the crime and defined what it meant

to “aid and abet.” The district court also defined general intent and specific

intent2 for the jurors but did not enlighten them on how the specific intent




2
    Instruction No. 22 stated:
                  “Specific intent” means not only being aware of doing an act and
          doing it voluntarily, but in addition, doing it with a specific purpose in
          mind.
                                        16



definition should be applied when the defendant was prosecuted for aiding and

abetting. Defense counsel did not object to the instructions.

      Neither the State nor the majority defends the performance of counsel.

Counsel unquestionably breached a material duty in not asking the court to

provide the jurors with the additional paragraph of the uniform aiding-and-

abetting instruction that would have explained the specific-intent element.

      Both the State and the majority look to the prejudice prong—describing

the evidence of Bergstrom’s guilt as “overwhelming.”            I disagree with that

description. While the State’s case was sufficient to sustain the jury’s verdict

under the given instructions, it cannot be called overwhelming, especially as to

evidence showing Bergstrom’s intent to permanently deprive Wal-Mart of the

video games or her knowledge of Carney’s specific intent.

      In concluding overwhelming evidence supported the specific-intent

element, the majority cites two of our unpublished cases, one of which involved

sufficiency of the evidence (Parker, 2012 WL 3027108, at *2-3) and the other

which addressed counsel’s failure to challenge the weight of the evidence (Kirk,

2011 WL 5394270, at *3). Neither Parker nor Kirk mentions “overwhelming”

evidence.

      Here, the State’s case consisted entirely of one witness and a spliced

together surveillance tape. The witness, Christian Carlson, was not working at


              Because determining the defendant’s specific intent requires you
      to decide what [she] was thinking when an act was done, it is seldom
      capable of direct proof. Therefore, you should consider the facts and
      circumstances surrounding the act to determine the defendant’s specific
      intent. You may, but are not required to, conclude a person intends the
      natural results of his acts.
                                         17



the Spencer Wal-Mart on the day of the theft.3 Neither Carlson nor any other

employee viewed the suspects’ actions in real time.          Carlson’s investigation

focused on Tohnya Carney, based on her recruitment of two teenage girls to

return merchandise. Carlson acknowledged the surveillance tapes he reviewed

did not show Carney and Bergstrom the whole time they were in the store. He

testified: “There are several seconds where you could say there is no video

coverage of a specific area.” Carlson also testified he could not be sure that

games taken off the shelves were not lost somewhere else in the store. Carlson

testified that when Carney and Bergstrom left the store, allegedly with the stolen

merchandise, the magnetic devices in the video games should have triggered the

exit alarms, but they did not.       His only explanation was “[s]ometimes the

machines don’t work.”

       Moreover, the footage included in the videotape exhibit was somewhat

grainy and some of the camera angles made it difficult to tell for sure what

Carney and Bergstrom were doing. The critical four minutes in the pet aisle are

captured from quite a distance, leaving some question as to Bergstrom’s

awareness that Carney may be hiding video games in her purse. The footage of

the pair exiting the store does not show Bergstrom carrying any of the stolen

games.

       Finally, the State presented no evidence tying Bergstrom to the actual or

attempted return of stolen games to the Wal-Mart service desk. The evidence in


3
  Carlson personally saw Carney and Bergstrom shopping together in the store after
December 23. He approached them as they were leaving because he thought they had
stolen some merchandise. But Carlson did not find any shoplifted items after the women
opened their coats, a purse, and also pulled out pockets.
                                          18



this case was barely sufficient, not overwhelming.          A reasonable probability

exists the outcome would have been different if the jury had been properly

instructed.   See Strickland, 466 U.S. at 696 (“[A] verdict or conclusion only

weakly supported by the record is more likely to have been affected by errors

than one with overwhelming record support.”).

       The majority asserts the surveillance footage shows Bergstrom “actively

participated in the theft” because she “personally took at least nine video games

from the display,” among other actions.4          The problem with the majority’s

assertion is that placing merchandise in a cart is not illegal and neither is

accompanying a shoplifter around the store unless—at the time of the taking—

you possess the specific intent to permanently deprive the store of the

merchandise or have knowledge of your companion’s intent to do so.

       The majority says “[t]his is not a typical aiding and abetting case where the

defendant was merely present at a crime scene with another and there is a real

question whether the defendant had the specific intent to commit theft.” Yet that

is exactly what defense counsel argued in closing.              Bergstrom’s attorney

asserted it was “all speculation” that Bergstrom knew Carney was going to “walk

right out” and “keep the stuff” and then “return it” to “get all this money.” Counsel



4
    The majority seems to question the State’s decision to pursue an aiding-and-abetting
theory, declaring there was “ample evidence” Bergstrom was a principal in the theft. But
it is clear the prosecution viewed Bergstrom as the accomplice, arguing in closing:
         Ms. Bergstrom was aiding and abetting the theft that was done by Ms.
         Carney when she was concealing the evidence. When you aid and abet,
         you are just as guilty as the person who is actually doing the act. Ms.
         Bergstrom is just as guilty as Ms. Carney is in this case of theft in the third
         degree, and I’d ask you [to] find Ms. Bergstrom guilty of that charge in this
         case.
                                        19



even drew the jury’s attention to the aiding and abetting instruction: “To aid and

abet you need something more than mere presence. If you are at a store with

someone who maybe has a plan, that doesn’t make you guilty of a crime.”

      But without the additional paragraph of the uniform instruction, the

defense was not able to support its theory Bergstrom did not know Carney’s

intent. The absence of the key language allowed the jury to convict without

finding that on December 23, either Bergstrom personally possessed the specific

intent to permanently deprive Wal-Mart of the merchandise when she aided and

abetted Carney in taking the games or Bergstrom had knowledge Carney had the

specific intent to permanently deprive. The full instruction would have offered the

jurors clear guidance regarding the State’s burden to prove specific intent in an

aiding-and-abetting scenario involving theft. Because the issue of Bergstrom’s

specific intent was “vital” to her defense to the aiding-and-abetting theft charge,

her counsel’s failure to object to its omission is a breach of duty resulting in

prejudice. See State v. Goff, 342 N.W.2d 830, 838 (Iowa 1983).
