                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-1710
                            Filed December 20, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

MARK BERNARD RETTERATH,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Mitchell County, James M. Drew

(motion) and Gregg R. Rosenbladt (trial), Judges.



       A defendant challenges his convictions for sexual abuse in the third degree,

attempted murder, and solicitation to commit murder.       AFFIRMED IN PART,

REVERSED IN PART, AND REMANDED.




       Angela L. Campbell of Dickey & Campbell Law Firm, P.L.C., Des Moines,

for appellant.

       Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney

General, for appellee.



       Heard by Vogel, P.J., and Tabor and Bower, JJ.
                                         2


TABOR, Judge,

       Sex acts, vengeance, and castor beans.            After digesting salacious

testimony offered by prosecution witnesses on these subjects, a jury convicted

Mark Retterath of sexual abuse in the third degree, solicitation to commit murder,

and attempted murder. Retterath appeals the three guilty verdicts, challenging the

sufficiency of the evidence and alleging a number of errors by the trial court.

       When viewing the proof in the light most favorable to the State, we find

substantial evidence to support the convictions for sexual abuse and solicitation to

commit murder. But because the State did not prove Retterath performed an act

that met the statutory definition of assault, we reverse and remand for dismissal of

the attempted-murder count.      We find no grounds for reversal in Retterath’s

remaining issues, though we do remand for an in camera review of the counseling

records of two witnesses whose credibility was critical to the State’s case on

solicitation to commit murder.

       I.     Facts and Prior Proceedings

       According to the prosecution’s theory, Retterath was reenacting a

murderous plotline from an episode of Breaking Bad1 as he solicited associates

Aaron Sellers and J.R. to exact revenge against C.L., the young man who accused

Retterath of sexual abuse.




1
 Breaking Bad was a “critically acclaimed television show” produced and marketed by
AMC Networks, Inc. from 2008 to 2013. See United States v. Rodriguez, 125 F. Supp. 3d
1216, 1239 n.9 (D.N.M. 2015). State’s witness J.R. testified he watched the show on
Netflix, a video streaming service, and shared the plot details with Retterath.
                                          3


       The accusations of sexual abuse surfaced in January 2015, but the events

dated back more than ten years. As a young teenager, C.L. was friends with Casey

Rolland, whose mother, Deb Rolland, lived with Retterath. When visiting Casey,

C.L. was occasionally left alone with Retterath, who used those opportunities to

introduce the topic of masturbation. Initially, C.L. told police he was thirteen years

old when Retterath first touched his penis as they sat in Retterath’s pickup after

planting trees out in the country.     C.L. recalled Retterath subtly displayed a

handgun, which C.L. later believed to be a Luger, and warned C.L. not to tell his

parents or Deb Rolland.      During a videotaped interview, C.L. told police the

touching occurred repeatedly when he was thirteen and fourteen years old.2

       But during his trial testimony, C.L. revised his allegations, recalling instead

that during his encounters with Retterath as a young teenager, each masturbated

himself, and Retterath did not touch C.L.’s penis until he was sixteen years old.

C.L. recalled going to Retterath’s house and Retterath asking whether C.L. wanted

to “pull it”—meaning to masturbate. Retterath then “leaned over and grabbed

[C.L.’s penis], and looked like all around and compliment[ed C.L.] on how big [he]

had gotten from the previous time [Retterath] had seen it.” C.L. remembered

feeling “frozen” and “powerless” to stop Retterath. The unwanted touching also

occurred when C.L. was seventeen years old, according to his testimony. In high

school, C.L. struggled with alcohol abuse. His parents, not knowing about the

sexual encounters, urged C.L. to seek addiction counseling from Retterath.




2
 C.L. also remembered going to the airport hangar where Retterath worked as a crop
duster.
                                         4


Retterath was a recovering alcoholic and active in Alcoholic Anonymous (AA).

When C.L. went to Retterath for advice, Retterath again “grabbed” C.L.’s penis.

      After high school, C.L. enlisted in the Army. He served for two years before

he was discharged for alcohol-related violations. Following his discharge, he

developed an addiction to opiates. In the fall of 2014, C.L. overdosed on heroin

and was resuscitated by his mother. Prompted by the overdose, C.L. entered

treatment, and for the first time, he disclosed that he had been sexually abused by

Retterath.   C.L. eventually shared the information with his parents, who

encouraged him to report the abuse to the police. C.L. was twenty-four years old

when he detailed the abuse in an hour-long interview with Mitchell County Deputy

Jeff Huftalin on January 28, 2015. During the video-recorded interview, C.L. said

Retterath sometimes showed him pornography on the television while they

masturbated and once Retterath tried to access a website showing child

pornography on his laptop. C.L. also told police Retterath (1) had a blue-colored

sword tattoo running the length of his penis and (2) joked to the teenaged C.L. that

he named it “S-Excalibur.” At the deputy’s request, C.L. drew a picture of the

tattoo, which proved to be a close likeness to the photograph later taken by law

enforcement during a search of Retterath’s person.

      After hearing C.L.’s accusations, Deputy Huftalin arranged for C.L. to

secretly record a telephone conversation with Retterath. During the call, C.L. told

Retterath he had been thinking about the past when they were planting trees or

watching movies together and he was having a “hard time dealing with it.”

Retterath claimed to have a bad connection, but Retterath also asked C.L. if he

was “feeling like it was really bad or wrong?” After C.L. told Retterath he was
                                            5


“getting really depressed” and had contemplated hurting himself, Retterath

assured C.L. that it was “not really different than when you’re alone” and “not that

big of a deal.”

       After the phone call, police arrested Retterath and charged him with sexual

abuse. Retterath admittedly was livid over C.L.’s accusations. Retterath testified:

“I’m sure I’ve cussed him plenty. But killing him wasn’t even a thought to me.” The

State’s witnesses told a different story. Two acquaintances who met Retterath at

their AA meetings testified Retterath incessantly “vented” about wanting C.L. dead.

Sellers, who was thirty-five years old at the time of the trial and had spent nearly

ten years in federal prison, testified Retterath repeatedly asked him to “kill that little

mother fucker.” Sellers did not know whether to take Retterath seriously. But

Sellers initially entertained the idea out of “some loyalty” to Retterath whom Sellers

believed to be falsely accused. When Sellers made it clear he would not kill C.L.,

Retterath asked if Sellers knew anybody who would. Retterath talked about using

the silver commodities that he traded to pay someone to commit the murder,

according to Seller’s testimony.

       Retterath also implored J.R. to kill C.L. J.R., who was twenty years old at

the time of the trial, told Retterath about a Breaking Bad episode where ricin was

extracted from castor beans and used as a poison. After that discussion, Retterath

suggested J.R. should leave a ricin-laced batch of drugs on C.L.’s property where

he would “stumble across it” and “hopefully would shoot it up.” J.R. testified he

and Retterath went to Mason City to purchase methamphetamine but Retterath

decided heroin would be better because its brownish color would help disguise the

ricin. Retterath wanted J.R. to plant the drugs because Retterath was the subject
                                          6


of a no-contact order after the filing of the sexual abuse charges. Sellers likewise

recalled the storyline: “I guess you can extract some poison from these beans and

it will kill you. And it was untraceable. . . . And [Retterath] was talking about where

he could find them . . . if you started looking around online.”

       In April 2015 Retterath signed onto eBay to purchase castor beans, along

with other seeds and supplies. Retterath insisted he only wanted the poisonous

beans to kill “varmints.” Retterath recalled J.R. looking over his shoulder as he

ordered the seeds, which prompted J.R. to recall the television episode involving

ricin. Retterath also performed searches on Google related to ricin and castor

beans on April 15, 2015. His search terms included “castor bean plants”, “how is

ricin made from castor beans,”3 and “how fast does ricin degrade.”

       In June 2015 Sellers and J.R. contacted Deputy Huftalin to report

Retterath’s plot to kill C.L. After they came forward, the deputy obtained another

search warrant for Retterath’s house. In that search, investigators found a forty-

plus-page printout in Retterath’s file cabinet that outlined how to extract ricin from

castor beans. The printout was slipped into a folder labelled Roth IRA and was

entitled: “Combined Castor Marker and Isotope Profile for Ricin Forsensics: Final

Report.” It included five examples of ricin-purification recipes. The searchers also

found a jar of castor beans in Retterath’s refrigerator, as well as a baggie holding

about ten beans in the pocket of a pair of Retterath’s blue jeans.

       In another pocket of the same jeans, the searchers found a handwritten list

of the following items:


3
 A computer forensic expert testified the words typed in were “How is ricin” and then
Google’s “artificial intelligence” program “auto populated” the remainder of the query.
                                              7


       - 6 Big Rolls Wide Duct Tape
       - 50 or 60 Large Heavy Duty Heft Bags (No draw strings if possible)
       - Saws All w/3 New blades, 6 inches long at least
       - power cord
       - 2 5-gallon containers gasoline
       - Large Sections of Vcqueen and/or Tarps 15 X 15 or larger[]
       - your vacumm sealer (foodsaver) with the bags that aren’t pre-cut
       - $220 cash

       Sellers testified he jotted down the list4 as Retterath dictated it over the

phone and then gave the note to him when Retterath arrived at the house. Sellers

said he added the item “$220 cash” at the bottom because Retterath owed him

that amount. Sellers recalled writing the note close in time to Retterath’s arrest for

attempted murder.

       After the second search of Retterath’s house and the seizure of the castor

beans, investigators sought help from the seed laboratory at Iowa State University

and the state hygienics laboratory in Coralville to determine if the toxin ricin was

inside the castor beans. The beans tested positive for ricin. Dr. Neel Barnaby, a

scientist with the FBI, testified ricin is a “biological threat agent” naturally produced

from castor beans. Dr. Barnaby described ricin as a “dangerous toxin” because it

“shuts down protein synthesis in cells. . . . If you kill enough cells, you start to kill

tissues. If you kill enough tissues, you start to kill organs, and if you start to kill

organs, you can kill the entity.” Dr. Barnaby discussed different methods for

extracting the toxin from the bean: “It could be as simple as cracking the seed coat

open to get access to the pulp of the seed to very high-tech procedures to get 100

percent pure ricin.” He testified that as few as eight beans could produce a lethal


4
  The State refers to the note as “a corpse-disposal shopping list.” Retterath replies such
a characterization is at odds with the State’s theory that Retterath plotted for C.L. to die of
ricin poisoning at a time and place that could not be traced to Retterath.
                                           8


dose of ricin. On cross-examination, Dr. Barnaby acknowledged the FBI does not

monitor the sale of castor beans on the internet.

       At his jury trial in August 2016, Retterath faced three charges: sexual abuse

in the third degree, solicitation to commit murder, and attempted murder. Before

the presentation of the evidence, Retterath unsuccessfully moved to dismiss the

charges for attempted murder and sexual abuse. See Iowa R. Crim. P. 2.11(6)(a).

At trial, the State presented testimony from C.L., J.R., Sellers, numerous police

officers, and expert witnesses. Retterath called Deb Rolland and her children as

witnesses; he also testified in his own defense, denying C.L.’s allegations about

the masturbation sessions and insisting he never touched C.L.’s penis. The jury

returned guilty verdicts on all three counts. Retterath now appeals.

       II.    Scope and Standards of Review

       The wide-ranging challenges in this appeal call for a variety of reviewing

standards. When considering the district court’s rulings on Retterath’s motion for

judgment of acquittal, objections to jury instructions, and request for admission of

a video-recording over the State’s hearsay objection, we review for legal error.

See, e.g., State v. Tipton, 897 N.W.2d 653, 694 (Iowa 2017) (presuming errors in

jury instructions are prejudicial unless lack of prejudice is shown beyond

reasonable doubt); State v. Bash, 670 N.W.2d 135, 137 (Iowa 2003) (upholding

jury’s verdict if it is supported by substantial evidence).

       We employ an abuse-of-discretion standard when considering the district

court’s rulings on Retterath’s discovery requests, mistrial motion, and motion for

new trial based on the weight of the evidence. See generally State v. Neiderbach,

837 N.W.2d 180, 190 (Iowa 2013).
                                           9


       We review de novo Retterath’s challenges to the search of his property and

the alleged violation of his due process rights in connection with the disclosure of

mental health records. See State v. Gogg, 561 N.W.2d 360, 363 (Iowa 1997); see

also State v. Cashen, 789 N.W.2d 400, 405 (Iowa 2010) (reviewing de novo claims

resting on due process right to present a defense), superseded by statute, 2011

Iowa Acts ch. 8, § 2 (codified at Iowa Code § 622.10 (2011)), as recognized in

State v. Thompson, 836 N.W.2d 470, 490 (Iowa 2013).

       III.   Analysis

       A.     Sufficiency and Weight of the Evidence

       Retterath challenges both the sufficiency and the weight of the State’s

evidence for all three crimes. On the sufficiency question, we assess the record

in the light most favorable to the State, including all reasonable inferences that we

may fairly draw from the evidence. State v. Howse, 875 N.W.2d 684, 688 (Iowa

2016). We will uphold the jury’s verdicts if they are supported by substantial

evidence. Id. Evidence is substantial when a reasonable jury could rely on it to

find the defendant guilty beyond a reasonable doubt.            Id.   Evidence is not

substantial if it raises only suspicion, speculation, or conjecture. Id. If the evidence

is not substantial, we must reverse and remand for dismissal. Id.

       On the alternative claim challenging the weight of the evidence, we must

grant a new trial if the jury’s verdicts are contrary to law or evidence. Iowa R. Crim.

P. 2.24(2)(b)(6). A verdict is contrary to evidence when it is against the greater

weight of the evidence presented at trial. State v. Taylor, 689 N.W.2d 116, 133–

34 (Iowa 2004). Unlike the sufficiency standard, where the district court must

approach the evidence from a standpoint most favorable to the State and assume
                                           10


the truth of the prosecution’s case, the weight-of-the-evidence standard allows the

court to balance the evidence and consider the credibility of witnesses. Id. at 134.

In deciding whether to grant a new trial on this ground, the district court enjoys

wide discretion, but it must exercise that discretion carefully and sparingly. Id. We

will discuss each distinct claim for all three convictions.

       1. Sexual Abuse in the Third Degree

       To convict Retterath of third-degree sexual abuse, the State had to show

he performed a sex act with C.L., by force or against C.L.’s will. See Iowa Code

§§ 709.1(1), 709.4(1)(a) (2016). One definition of “sex act” is contact between the

hand of one person and the genitalia of another. Id. § 702.17(3). The contact

must be sexual in nature. See State v. Pearson, 514 N.W.2d 452, 454 (Iowa 1994).

       C.L. testified that when he was a young teenager, he had encounters with

Retterath where they both would masturbate, without touching the other, but

Retterath would display a handgun. Retterath told C.L. not to tell his parents what

happened. C.L. further testified, on two occasions when he was sixteen and then

seventeen years old, he was again alone with Retterath when the older man raised

the subject of masturbation and “grabbed” C.L.’s penis—complimenting its size.

C.L. recalled Retterath telling him “the girls are going to like that.”

       Retterath argues that even if the jury believed C.L., his testimony did not

establish the sexual nature of the touching.        He claims the State offered no

evidence to indicate that Retterath’s admiration for the growth of C.L.’s penis was

intended to arouse or satisfy the sexual desires of either party. We disagree. The

jury was entitled to determine that Retterath’s act of grabbing C.L.’s penis was

sexual in nature based on the type of contact and the circumstances surrounding
                                          11

it.   See State v. Madsen, 813 N.W.2d 714, 728–29 (Iowa 2012) (deciding

“admissible evidence allowed the jury to find Madsen measured D.M.K.’s penis

with the specific intent to arouse or satisfy sexual desires” (citation omitted)). C.L.

testified Retterath had pornography playing for them to view as both Retterath and

C.L. proceeded to masturbate while sitting side by side on the couch. According

to C.L., Retterath then asked C.L. “if [he] was close because [Retterath] was

close,” meaning Retterath wanted them to ejaculate at the same time. In these

circumstances, Retterath’s sexual intent was obvious.

       As to the weight of the evidence, we find no abuse of discretion in the district

court’s denial of a new trial. See Taylor, 689 N.W.2d at 134 (discussing limited

appellate review). Retterath’s challenge focuses on C.L.’s credibility—pointing out

C.L.’s late reporting and the variance between C.L.’s initial disclosures and trial

testimony. The district court could uphold the jury’s verdict despite those concerns.

The State offered expert testimony to explain that traumatic situations can make it

difficult for young people to remember time frames and to explain why delayed

disclosure is common. In addition, C.L.’s credibility was bolstered by his accurate

drawing of the sword tattoo on Retterath’s penis, something he would not have

been able to remember if Retterath was truthful in his total denial of any

masturbation sessions with C.L.        Finally, Retterath’s statements during the

recorded phone call with C.L. give credence to C.L.’s allegations of sexual abuse.

       Accordingly, we uphold the district court’s rulings on both the sufficiency

and the weight of the evidence supporting Retterath’s conviction for sexual abuse

in the third degree.
                                           12


       At this juncture, we circle back to address Retterath’s related claim that the

district court should have granted his pretrial motion to dismiss the count alleging

sexual abuse. Pretrial dismissal is appropriate if the facts alleged in the trial

information and the minutes of evidence do not constitute the offense charged as

a matter of law.     State v. Gonzalez, 718 N.W.2d 304, 309 (Iowa 2006).               In

considering a motion to dismiss a trial information, the district court is called to

accept as true the facts set out in the minutes or any bill of particulars. See State

v. Doss, 355 N.W.2d 874, 881 (Iowa 1984).

       Retterath argued in his motion to dismiss that neither the minutes nor C.L.’s

deposition5 alleged that he “performed a sex act on C.L. by force or against his

will.” Retterath claims that even if the acts alleged in C.L.’s deposition were sexual,

they were not “done by force or against the will of C.L.” The defense points out

C.L. went to Retterath’s house on his own accord and agreed to masturbate. In

Retterath’s estimation: “This is not the behavior of someone who is being forced

to do something against his will.”

       “The overall purpose of Iowa’s sexual abuse statute is to protect the

freedom of choice to engage in sex acts.” State v. Meyers, 799 N.W.2d 132, 143

(Iowa 2011). The phrase, “against the will of another,” provides broad protection

from nonconsensual sex acts, both under circumstances showing the victim had

no opportunity or ability to consent due to coercion and where the particular



5
 The State insists that in evaluating the motion to dismiss, we cannot consider C.L.’s
deposition. See State v. Johnson, 528 N.W.2d 638, 640 (1995). We disagree. Because
C.L.’s deposition contradicted information contained in the minutes of evidence, it can be
construed as an amendment or bill of particulars and is properly considered in deciding
whether the facts alleged constitute the offense charged. See generally State v. Conner,
292 N.W.2d 682, 688 (Iowa 1980).
                                         13


circumstances have rendered the victim incapable of consenting to the sexual

advances of a particular person. Id. In his deposition, C.L. testified to coercive

actions Retterath had taken during earlier masturbation encounters, including

leaving a gun visible to C.L. and warning him not to tell Deb Rolland or his parents.

       Under these circumstances, we conclude the State alleged sufficient facts

to support the elements of sexual abuse in the third degree; the district court

properly denied Retterath’s motion to dismiss this offense.

       2. Solicitation to Commit Murder

       We turn next to Retterath’s challenge to his conviction for the solicitation of

J.R. or Sellers to murder C.L. Solicitation to commit murder has three elements:

(1) commanding, entreating, or otherwise attempting to persuade another to

commit murder; (2) with intent that the murder be committed; (3) under

circumstances corroborating that intent. Iowa Code § 705.1(1); State v. Jackson,

422 N.W.2d 475, 478 (Iowa 1988).          Retterath alleges there was insufficient

evidence to corroborate the testimony of Sellers or J.R. A conviction for this crime

cannot rest on the testimony of a solicited person “unless corroborated by other

evidence which shall tend to connect the defendant with the commission of the

offense; and the corroboration is not sufficient if it merely shows the commission

of the offense or the circumstances thereof.” Iowa R. Crim. P. 2.21(3).

       The purpose of corroborating evidence is to ensure a conviction does not

result from an accused’s statements that were misunderstood, not intended to be

taken seriously, or fabricated by the solicited person. State v. Williams, 315

N.W.2d 45, 58 (Iowa 1982). We do not require corroborative evidence to be

particularly strong as long as it tends to connect the accused with the commission
                                         14

of the crime and supports the credibility of the solicited person. See generally

State v. Barnes, 791 N.W.2d 817, 824 (Iowa 2010); State v. Robertson, 351

N.W.2d 790, 793 (Iowa 1984).

       On appeal, Retterath asserts: “Wanting to kill someone, indeed fantasizing

and talking about killing someone, is not sufficient evidence of intent to actually

have someone killed.” He contends he is being punished for a “thought crime.”

       The State argues “solicitation is an offense ‘where the crime is in the

asking.’” State v. Anderson, 618 N.W.2d 369, 372 (Iowa 2000) (citation omitted).

The State also points out “the ultimate success or failure of the solicitation is

irrelevant to the validity of the conviction.” Cf. State v. Propp, 532 N.W.2d 784,

786 (Iowa 1995) (analyzing conviction for solicitation of a child to engage in a sex

act). As corroborative evidence, the State points to Retterath’s accelerated buying

of silver as a means for him to afford the murder for hire, as well as his purchase

of the castor beans and printing of the ricin fact sheet, which connect him to the

criminal plot described by both Sellers and J.R.

       Viewing the proof in the light most favorable to the State, we find sufficient

evidence to corroborate the testimony of Sellers and J.R. Both men testified about

Retterath’s expressed desire to have them lace C.L.’s drugs with ricin. Sellers

testified Retterath was excited when the castor beans arrived and showed the

delivery box to Sellers. J.R. testified Retterath showed him a pill bottle containing

castor beans, as well as the “larger bag of beans in the fridge.” Investigators

confirmed Retterath’s possession of the beans. The district court properly denied

Retterath’s motion for judgment of acquittal on the solicitation offense.
                                           15


       As for the weight of the evidence, we find no abuse of discretion in the

district court’s denial of Retterath’s motion for new trial on the solicitation count.

While the defense raised questions about the credibility of J.R. and Sellers during

their cross-examinations, assigning proper weight to their testimony remained the

job of the jury. The district court is not to substitute its judgment for that of the jury

unless the credible evidence tipped the scales heavily away from the verdict. See

State v. Reeves, 670 N.W.2d 199, 203 (Iowa 2003). Moreover, the corroborative

evidence here was not subject to questions of trustworthiness. We will not disturb

the jury’s verdict on the solicitation offense.

       3. Attempted Murder

       On the offense of attempt to commit murder, the district court instructed the

jury that the State had to prove three elements: (1) Retterath attempted to kill C.L.

by poisoning him with ricin; (2) by his acts he expected to set in motion a force or

chain of events which would cause or result in C.L.’s death; and (3) when he acted

he specifically intended to cause C.L.’s death. See Iowa Code § 707.11(1); State

v. Ceretti, 871 N.W.2d 88, 92 (Iowa 2015) (condensing attempted murder into two

elements: “(1) an act, (2) done with intent to cause another person’s death”); State

v. Young, 686 N.W.2d 182, 185 (Iowa 2004) (describing elements as “(1) a specific

intent to cause the death of another and (2) an overt act in furtherance of the

required specific intent”).

       Relying on State v. Braggs, 784 N.W.2d 31 (Iowa 2010), Retterath argues

the State did not satisfy the elements of attempted murder because it did not prove

he assaulted C.L. Braggs held “it is impossible to commit attempted murder

without also performing an act which meets the statutory definition of an assault
                                          16


under Iowa Code section 707.1(1).” 784 N.W.2d at 36–37. Retterath argues the

evidence he solicited J.R. and Sellers to poison C.L. and also purchased castor

beans are not acts rising to the level of an assault. Retterath asserts: “Castor

beans are legal to possess and grow, and the mere possession of castor beans,

without an attempt to extract ricin, let alone no use of any theoretical ricin to poison

anyone, is not a ‘chain of events’ that would result in the death of another.”

       The State insists the conduct required for attempted murder is not always

an assault because “the inchoate nature of attempted murder means it can be

committed through acts taking place before a planned assault.” The State cites

Braggs for the proposition that as a result of the 1978 code revisions, “an assault

is no longer an express element of attempted murder.” Id. But the State isolates

what appears to be favorable language while ignoring Braggs’s ultimate

determination that assault remains an essential element of attempt to commit

murder. Id. at 36–37 (explaining the defendant’s “focus on the 1978 rewrite of the

Iowa Code is misplaced” because it is not essential that elements of a lesser

offense be described in the statutes in the same manner as described in the

elements of the greater offense).

       To support its position that not all attempted murders are accomplished by

assaults, the State points to our unpublished decision in State v. Leggio, No. 09-

0990, 2010 WL 624221, at *5 (Iowa Ct. App. Feb. 24, 2010). The State asserts:

“The obvious example is murder-for-hire, which constitutes attempted murder long

before the intended victim becomes aware of the scheme’s existence.” In Leggio,

our court upheld a conviction for attempted murder that was based on a completed

murder-for-hire agreement. 2010 WL 624221, at *5.
                                              17

          While it may be difficult to reconcile Braggs and Leggio, we must follow the

precedent established by our supreme court. Accordingly, we reject the State’s

reading of Braggs. Specifically, Braggs explained: “Attempted murder requires

that the person expects to do something which will cause or result in the death of

another.” 784 N.W.2d at 37 (citing Iowa Code § 707.11). That “something” is an

assault as defined in section 708.1.6 Id. The ability to complete the harmful act

need only be apparent to the actor, not the victim. Id.

          In the State’s example, even if the victim were not aware of the existence

of a murder-for-hire scheme, the person who set in motion the chain of events

could commit an assault by having the apparent ability to execute the harmful act

vicariously through the hired assassin. See, e.g, People v. Super. Ct., 157 P.3d

1017, 1022–23 (Cal. 2007) (“Although Decker did not himself point a gun at his

sister, he did aim at her an armed professional who had agreed to commit the

murder.”). Under this reasoning, Leggio would not be inconsistent with Braggs. In

Leggio, the defendant supplied the would-be assassin with information about the

targeted victims, such as maps, photographs, work schedules, and vehicle types;

“Leggio understood that his plan to have the intended victims killed was

irretrievable once he signed and returned the promissory note.” 2010 WL 624221,

at *5. By contrast, Retterath’s scheme to kill C.L. was in its nascent stage.


6
    Iowa Code § 708.1(2) states:
                  A person commits an assault when, without justification, the
         person does any of the following: a. Any act which is intended to
         cause pain or injury to, or which is intended to result in physical
         contact which will be insulting or offensive to another, coupled with
         the apparent ability to execute the act. b. Any act which is intended
         to place another in fear of immediate physical contact which will be
         painful, injurious, insulting, or offensive, coupled with the apparent
         ability to execute the act.
                                         18


Retterath was not shy about expressing his desire for C.L.’s demise. But he had

not secured an agreement from Sellers or J.R. to carry out the killing and had taken

no more than exploratory steps on his own to achieve his goal.

       Having confirmed that, under Braggs, the State was required to prove an

assault, we examine whether the State presented substantial evidence showing

Retterath committed such an “overt act” by which he expected to set in motion a

force or chain of events that would cause or result in C.L.’s death. See Iowa Code

§ 707.11(1); Young, 686 N.W.2d at 185. “Attempt” is not defined in our criminal

code, but we know from our caselaw it is a matter of degree. “[M]ere acts of

preparation not proximately leading to the consummation of the intended crime will

not suffice to establish an intent to commit it.” State v. Spies, 672 N.W.2d 792,

797 (Iowa 2003) (quoting State v. Roby, 188 N.W. 709, 714 (Iowa 1922)). But the

overt act also “need not be the last proximate act to the consummation of the

offense.” Id. An overt act qualifies as an “attempt” if it reaches “far enough towards

the accomplishment of the desired result to amount to the commencement of the

consummation.” Id. (deciding that act of driving car toward supplier, after Spies

participated in conversation consistent with confirming drug sale, qualified as step

beyond preparation and proved attempt to transfer methamphetamine).

       The State points out that Iowa follows the “slight acts” approach to proving

conduct has gone beyond “mere preparation” to a full-fledged attempt. See Fryer

v. State, 325 N.W.2d 400, 406 (Iowa 1982) (describing common law elements of

attempt as “(1) intent to commit the crime and (2) slight acts in furtherance of the

crime that render voluntary termination improbable”). The State contrasts the

“slight acts” test with the “substantial step” formulation in the Model Penal Code.
                                            19

See Model Penal Code § 5.01(1)(c) (Am. Law Inst. 2016) (defining attempt as

including an act that constitutes “a substantial step in a course of conduct planned

to culminate in the commission of a crime”).7 Like federal courts that have looked

at the “semantic disconnect” between the “slight acts” and “substantial step”

formulations, we see the “operational meaning” of “attempt” as the same under

either standard. See United States v. Saavedra-Velazquez, 578 F.3d 1103, 1109

(9th Cir. 2009) (noting California courts have suggested the “slight acts” test is

actually more stringent than the “substantial step” requirement because the Model

Penal Code permits, in certain circumstances, preparatory acts to constitute an

“attempt”); see also United States v. Sanchez, 667 F.3d 555, 563 (5th Cir. 2012)

(describing “substantial step” as an act strongly corroborative of the actor’s criminal

intent amounting to more than mere preparation); United States v. Kriens, No. CR

99-3003 MWB, 2006 WL 2089947, at *13 (N.D. Iowa July 25, 2006) (equating

Iowa’s “slight acts” test with “substantial step” language).

       The State argues that Retterath satisfied the “slight acts” test by buying the

castor beans and researching how to extract ricin from them. The State contends,


7
  The Model Penal Code lists seven types of conduct that could constitute a “substantial
step” if strongly corroborative of the actor’s criminal intent, namely: (1) lying in wait,
searching for or following the contemplated victim of the crime; (2) enticing or seeking to
entice the contemplated victim of the crime to go to the place contemplated for its
commission; (3) reconnoitering the place contemplated for the commission of the crime;
(4) unlawful entry of a structure, vehicle or enclosure in which it is contemplated that the
crime will be committed; (5) possession of materials to be employed in the commission of
the crime, that are specially designed for such unlawful use or that can serve no lawful
purpose of the actor under the circumstances; (6) possession, collection or fabrication of
materials to be employed in the commission of the crime, at or near the place
contemplated for its commission, if such possession, collection or fabrication serves no
lawful purpose of the actor under the circumstances; and (7) soliciting an innocent agent
to engage in conduct constituting an element of the crime. Model Penal Code
§ 5.01(2)(a)–(g).
                                            20


even if Retterath had a lawful use for the beans, he had no lawful use for ricin—

“so his momentum towards producing it can prove attempted murder.” The State

alternatively asserts Retterath’s solicitations of J.R. and Sellers to kill C.L. were

independently sufficient to prove attempted murder.

       After considering both of the State’s alternatives, we cannot conclude

Retterath engaged in even a “slight act” in furtherance of his intent to kill C.L. that

rendered voluntary termination of the scheme improbable. Retterath expressed

his desire to have C.L. killed, purchased castor beans, “Googled” how to make

ricin, printed instructions from the Internet, and solicited (unsuccessfully) two

associates to help him plant tainted drugs around C.L.’s home because Retterath

had a no-contact order prohibiting him from going there. Retterath stored most of

the castor beans in his refrigerator, but he stashed a few beans in a baggie in the

pocket of jeans he was not wearing at the time of his arrest. Notably, Retterath

had not taken a step to extract ricin from the castor beans. He had no poison. He

did not lie in wait or search for C.L.; he did not case a location for the crime; he did

not entice C.L. to such a place, nor enter a structure for the purpose of committing

the crime. He did not possess the castor beans at the place contemplated for the

commission of the crime.8 As for the solicitation, the facts here were not like

Leggio, 2010 WL 624221, at *5 (emphasizing Leggio’s understood plan to have

intended victims killed was irretrievable once Leggio signed and returned


8
  In its closing argument, the prosecution told the jury that Retterath’s possession of the
castor beans was like “carrying around a loaded gun in his pocket.” But unless Retterath
had been carrying a loaded gun in the vicinity of the contemplated victim or had at least
been moving in that direction, the State would be hard-pressed to convict him of attempted
murder under Iowa Code section 707.11. See generally Young, 686 N.W.2d at 185–86
(discussing defendant’s act of shooting rifle at deputy’s vehicle as “type of act that would
further the specific intent to commit attempted murder”).
                                              21


promissory note). Retterath’s entreaties to Sellers and J.R. were preliminary; no

consideration was exchanged. The State failed to offer proof of an overt act—

meeting the definition of an assault—that went far enough to convict Retterath of

attempt to murder. Accordingly, we reverse his attempted-murder conviction and

remand for dismissal of that count.9




       B.      Search Warrants

       Retterath next alleges a violation of his right to be free from unreasonable

searches and seizures under the Fourth Amendment to the United States

Constitution and article I, section 8 of the Iowa Constitution. Retterath contends

the district court erred in denying his motion to suppress evidence seized during

the execution of search warrants issued in late January and early February of 2015

for his house, vehicles, and airplane hangar.10               He argues the information

presented in the warrant applications was stale, and as a result, the officers lacked

probable cause for the searches. The applications stemmed from C.L.’s report to

the police in January 2015 that he had been sexually abused by Retterath starting

in 2004 and continuing until November 2012.




9
   Because we find insufficient evidence to support Retterath’s conviction under section
707.11, we decline to address his claims concerning his pretrial motion to dismiss, the
weight of the evidence, or the jury instructions as they relate to the conviction for attempted
murder.
10
   The warrant also authorized a search of Retterath’s body for any tattoos. He does not
challenge that search on appeal. In addition, Retterath does not challenge the second
round of warrants that resulted in the seizure of the castor beans.
                                        22


      Probable cause requires a reasonable belief that evidence of a crime will

be found on the premises to be searched; the information upon which this belief is

based must be current and not remote in time. See State v. Randle, 555 N.W.2d

666, 670 (Iowa 1996). Along with the passage of time, courts consider (1) the

nature of the crime (isolated or ongoing), (2) the character of the suspect (nomadic

or stable), (3) the nature of thing to be seized (perishable, easily destroyed,

enduring utility to holder), and (4) the place to be searched (forum of convenience

or secure base). Gogg, 561 N.W.2d at 367.

      The affidavit attached to the warrant application discussed C.L.’s

allegations of being sexually abused by Retterath, as well as the officer’s

experience concerning the link between persons who sexually abuse children and

the acquisition of child pornography. The warrant sought computers, other types

of records and media, and firearms and ammunition. While executing the warrants

in this case, officers seized computers and guns, as well as a small amount of

marijuana and drug paraphernalia. In resisting the motion to suppress, the State

acknowledged its seizure of the drugs was invalid but urged the remaining

evidence was properly seized because the sexual abuse was ongoing and a

connection existed between child pornography and sexual abuse.

      On appeal, Retterath argues, “The only information in the warrant for which

there could ever have been evidence of a ‘crime’ was C.L.’s claim that ‘on one

occasion,’ on an undisclosed date, Retterath had child pornography on his

computer.” Retterath points out the alleged viewing of child pornography was more

than two years—and possibly as long as ten years—before the State’s execution
                                         23


of the warrants. He argues the district court should have excluded evidence of

adult pornography and guns found on his property.

         The State acknowledges the information contained in the application was

not current but defends the issuance of the warrants under Gogg. The State

argues the district court correctly relied on the ongoing nature of the sexual abuse

to justify the State’s search for evidence of child pornography.         The State

alternatively contends the evidence seized was “barely mentioned at trial” and thus

the denial of Retterath’s motion to suppress was harmless error. In reply, Retterath

accuses the State of mischaracterizing the record, noting the adult pornography

and guns found on his property were discussed numerous times during the trial.

         Upon our de novo review, we reach the same conclusion as the district

court.    On balance, the ongoing nature of the sexual abuse alleged by C.L.

overcomes Retterath’s staleness claim. In contrast to theft, robbery, or drug cases

where law enforcement should expect the suspect to move any evidence fairly

rapidly, authorities could reasonable believe a suspect would retain child

pornography or other items used to sexually exploit children for a longer period of

time. See State v. Woodcock, 407 N.W.2d 603, 605 (Iowa 1987) (“Their perceived

usefulness to the suspect would be of a continuing nature, through gratification

obtained by him.”). The district court properly overruled Retterath’s motion to

suppress.

         C.    Production and Disclosure of Privileged Records

         Retterath also criticizes the district court’s response to his request for

privileged records.    A defendant seeking access to privileged records must

demonstrate “in good faith a reasonable probability that the information sought is
                                         24


likely to contain exculpatory information that is not available from any other source

and for which there is a compelling need for the defendant to present a defense in

the case.” Iowa Code § 622.10(4)(a)(2)(a). If a defendant makes such a showing,

the district court will perform an in camera review to determine if the records indeed

contain exculpatory evidence. Id. at § 622.10(4)(a)(2)(b). The court then performs

a balancing test—weighing the need for the disclosure versus the witness’s privacy

interest. Id. at § 622.10(4)(a)(2)(c).

       At trial, Retterath sought confidential records from the providers of mental-

health treatment to C.L., Sellers, and J.R. The district court denied Retterath’s

requests for the records of Sellers and J.R., but it performed an in camera review

of C.L.’s records. After reviewing hundreds of pages detailing C.L.’s treatment, the

district court turned over a single page of C.L.’s medical history to Retterath’s

counsel that the court determined contradicted C.L.’s allegations of sexual abuse.

When rejecting Retterath’s requests for an in camera review of the records of

Sellers and J.R., the court distinguished between the categories of “impeaching”

and “exculpatory” evidence.

       On appeal, Retterath contends the district court erred in its analysis

concerning the records of Sellers and J.R. He also argues—to the best of his

knowledge—the court should have released the entirety of C.L’s records.

       Turning to the records of Sellers and J.R., Retterath argued both witnesses

for the State had mental-health and substance-abuse disorders that would bear

upon the truthfulness of their testimony. Retterath asserted Sellers experienced

“auditory hallucinations which are severe enough to warrant him receiving disability

payments from Social Security.” In a separate motion, Retterath alleged J.R.
                                          25


“portrayed symptoms” associated with a mental illness, discussed being “fuzzy” on

certain facts during a deposition, and had been transported from a hospital

psychiatric unit. The State resisted Retterath’s motions, arguing the records would

contain “only impeachment evidence as opposed to exculpatory evidence.” The

district court accepted the State’s position.

         Legislative drafters used the term “exculpatory” repeatedly in section

622.10(4) but did not define it. Exculpatory evidence tends to “establish a criminal

defendant’s innocence.” Exculpatory Evidence, Black’s Law Dictionary (10th ed.

2014).

         On appeal, Retterath argues that in a “he said/he said” case like this,

impeachment evidence is the only exculpatory evidence available. In response,

the State cautions that we must construe section 622.10(4) with the realization that

the legislative purpose was to supersede the test from Cashen, 789 N.W.2d at

417, with “a protocol that restores protection for the confidentiality of counseling

records,” see Thompson, 836 N.W.2d at 481.             Under the State’s logic, “If

impeachment evidence qualified as ‘exculpatory’ under section 622.10(4), then

every conceivable mental health record could be discoverable,” and the

legislature’s aim to protect confidentiality would be undermined.

         We disagree with the State’s narrow reading of “exculpatory.” In the context

of discovery for Brady purposes, the United States Supreme Court has rejected

any distinction between “impeachment” evidence and “exculpatory” evidence. See

United States v. Bagley, 473 U.S. 667, 676 (1985). Likewise in State v. Edouard,

our supreme court remanded for an in camera review of a witness’s counseling

records because information in the records “could have significantly undermined
                                         26

[that witness’s] testimony.” 854 N.W.2d 421, 442 (Iowa 2014), overruled on other

grounds by Alcala v. Marriott Int’l, Inc., 880 N.W.2d 699 (Iowa 2016); see also

Neiderbach, 837 N.W.2d at 226 (stating “all that is required is some plausible

theory founded in demonstrable fact that suggests the information in the mental

health records might well prove helpful to the defense”). Retterath established that

Sellers and J.R. each had a history of psychiatric conditions that could impact his

reliability as a witness. The defense made a plausible showing (1) exculpatory

evidence could be unearthed in their mental health records and (2) the critical

information was not available from another source. See Neiderbach, 837 N.W.2d

at 220. We remand the case to allow the district court to conduct that review under

section 622.10(4)(a)(2) to determine whether their records contain exculpatory

information.     If the district court finds no exculpatory evidence, Retterath’s

conviction for solicitation to commit murder is affirmed.    If the district court finds

exculpatory evidence in those records, then the district court should perform the

balancing test outlined in paragraphs (2)(c) and (d) to assess whether Retterath is

entitled to a new trial on the conviction for solicitation to commit murder.

       As for C.L.’s records, we have reviewed in camera the nearly five hundred

pages of confidential information as provided for in section 622.10(4)(a)(2)(a).

After weighing the need for the disclosure against C.L.’s privacy interest, we find

no additional exculpatory evidence that should be disclosed to Retterath.

Accordingly, we affirm as to Retterath’s request for additional records concerning

C.L. records.

       D.       Exclusion of C.L.’s Videotaped Interview
                                         27


       Retterath also contests the district court’s decision to exclude the video-

recording of C.L.’s interview with Deputy Huftalin in January 2015. During C.L.’s

cross-examination, Retterath’s counsel asked for the entire video to be shown to

the jury for impeachment purposes. The State resisted, arguing defense counsel

could “impeach the witness all she wants, but the tape itself does not come in as

evidence.” The district court ruled the video could not be admitted because it was

hearsay, but the court marked it as an offer of proof for appeal.

       Retterath’s counsel argued the videotaped interview was not excludable as

hearsay because the statements were not being offered for the truth of the matter

asserted—“[c]learly we don’t think it’s true.”    Counsel further asserted: “Best

evidence is to listen to the video. He’s not reporting on cross-examination what

the video is saying accurately. And so I think the jury could get to hear that.”

       The district court rejected the defense argument, reasoning, “[W]e should

be handling that through the normal impeachment process of asking a witness

about it, and he could either confirm or deny it, that he’d made those prior

statements.” The court did offer to play the video for the jurors without sound so

the jurors could see C.L. as he answered questions, but defense counsel declined:

“You need to be able to hear how he’s saying, what he’s saying, his responses,

whether he’s forthcoming or not.”

       On appeal, Retterath reiterates his position the video was not hearsay. See

Iowa R. Evid. 5.801(c). Retterath also argues the video was admissible to rebut

Deputy Huftalin’s testimony that C.L.’s “general demeanor” during the interview

was “embarrassment” and “maybe a little bit of shame.”
                                         28


       In response to Retterath’s argument that he was not offering the video for

the truth of the matter asserted, the State contends: “This implies some

substantive, non-impeachment purpose for introducing the entire video—but at

trial and on appeal, the only purported purpose given for offering this as

substantive evidence was that it demonstrated C.L.’s demeanor.” The State’s

response conflates offering out-of-court statements to prove the truth of the matter

asserted and offering such statements for impeachment purposes.             “A prior

statement of a witness used to impeach the witness’s testimony is not hearsay

when the statement is not offered to prove the truth of the statement, but rather to

prove the fact the witness made a statement at a previous time.” State v. Sowder,

394 N.W.2d 368, 370 (Iowa 1986); see Iowa R. Evid. 5.801(c). We look to the real

purpose for offering the out-of-court statement. See State v. Belken, 633 N.W.2d

786, 801 (Iowa 2001). Here, Retterath wanted to impeach C.L. with his earlier

version of events and would not have attempted to establish the truth of his

assertions in the video. Accordingly, the district court erred in excluding the video

recording.

       But the question remains whether Retterath was prejudiced by exclusion of

the video recording. The State argues any error in excluding it was harmless

because “the full interview video as evidence of C.L.’s demeanor would have been

hugely advantageous to the State.” Retterath expresses sharp disagreement in

his reply brief, contending the video was “highly exculpatory” because it would

have allowed the jurors to make a more informed credibility determination about

C.L. Where, as here, the proponent of the evidence alleges contravention of a rule

rather than a constitutional violation, we reverse only if “the complaining party has
                                         29

suffered a miscarriage of justice or his rights have been injuriously affected.” State

v. Lukins, 846 N.W.2d 902, 911 (Iowa 2014). We presume prejudice unless the

record shows otherwise. Id.

       Our review of the record shows Retterath’s rights were not injuriously

affected by the court’s exclusion of the video recording.          Defense counsel

vigorously cross-examined C.L. concerning his earlier inconsistent statements.

The jurors were well aware of C.L.’s revision of his original allegations that

Retterath touched his penis on numerous occasions when C.L. was thirteen and

fourteen years old.     Moreover, C.L.’s demeanor in the video recording is

susceptible to different interpretations.     His legs are constantly jittery, and at

various times he shifts in his chair, hangs his head, and chews his fingernails.

C.L.’s body language could mean, as Retterath alleges, that C.L. was “someone

making up details as [he] went along.” Or alternatively, it could reveal, as the

deputy perceived, that C.L. was embarrassed and ashamed to discuss being

sexually abused as a youth. Based on this ambiguity, we do not find Retterath

suffered a miscarriage of justice by the exclusion of this evidence.

       E.     Jury Instructions

       Retterath contends the district court provided several faulty instructions to

the jury. We will address each challenged instruction in turn.

       1. Unanimity Requirement

       Iowa Rule of Criminal Procedure 2.22(5) requires unanimity in criminal

jury verdicts. This unanimity requirement is not violated when jurors embrace

different theories for the crime, as long as the alternative theories are not

repugnant to each other. See State v. Bratthauer, 354 N.W.2d 774, 776 (Iowa
                                           30

1984); see also State v. Schlitter, 881 N.W.2d 380, 399 (Iowa 2016) (Wiggins. J.,

concurring in part and dissenting in part) (discussing need for special

interrogatories and opining “juror unanimity as to the means by which an offense

was committed is required to sustain a conviction when the alternative means

submitted to the jury are inconsistent, repugnant, or conceptually distinguishable

from each other”).

       At trial, Retterath objected to Instruction No. 18, a uniform jury instruction

providing: “Where two or more facts would produce the same result, the law does

not require each juror to agree as to which fact leads to his or her verdict. It is the

verdict itself which must be unanimous, not the facts upon which it is based.” The

district court overruled that objection.

       On appeal, Retterath contends Instruction No. 18 was an incorrect

statement of the law. In his view, the instruction allowed the jurors to convict him

even if they did not all agree who he solicited, when the solicitation occurred, or

under what conditions. Indeed, the State argued in closing: “There’s two people

involved in this solicitation. Half of you could say, I think he just solicited [J.R.].

The other half of you could say, I think he just solicited Aaron Sellers. But the

bottom line is you all agree that a solicitation was done.”

       But Retterath did not object to the marshalling instruction stating the jury

must find he solicited “another” to commit murder, not specifying whether another

referred to Sellers or J.R. As the State argues on appeal, even if the district court

had removed Instruction No. 18 from the jurors’ consideration, they could have still

viewed the solicitation theories in the disjunctive under the un-objected-to

marshalling instruction. Moreover, Retterath does not contend on appeal that the
                                         31


prosecutor misstated the law on unanimity in closing argument.           Accordingly,

Retterath did not preserve error on his claim concerning a unanimous verdict.

       2. Range of Dates for Sexual Abuse

       Retterath argues the district court erred in overruling his objection to the

time range in the marshalling instruction for sexual abuse because C.L. did not

allege in his testimony that sex acts occurred in 2003 or 2004. The State argues

the earlier dates were properly included because C.L. testified to Retterath’s

sexual advances during that time frame, even if C.L. did not allege that a sex act

occurred until several years later.     While the dates used in the marshalling

instruction should have reflected the testimony offered by C.L., we cannot

conclude the mistake warrants a new trial. See State v. Griffin, 386 N.W.2d 529,

532 (Iowa Ct. App. 1986) (allowing less specificity regarding date of sexual abuse

alleged by children).

       3. Specific Intent for Solicitation

       Retterath contends the district court improperly instructed the jury on the

elements of solicitation to commit murder because the marshaling instruction did

not mention “specific intent.” Instead, the jury was told the State must prove: “The

defendant intended that the murder would be committed.”

       We conclude the instruction properly reflected the elements of the offense.

See Iowa Code § 705.1 (requiring proof that person soliciting another to commit a

felony had “intent that such act be done”); see also State v. Hall, 150 N.W. 97, 104

(Iowa 1914) (holding an instruction following the language of the statute is not

prejudicial where other instructions fully cover the law as applied to the issue). The

district court separately instructed the jury on specific intent.     Moreover, the
                                          32


prosecution told the jurors in closing arguments that they were required to find

specific intent for both attempted murder and solicitation to commit murder. The

jury could not have been misled as to the intent element.

       F.     Motion for Mistrial

       Retterath filed a motion in limine seeking to exclude “any testimony,

argument, or inference that the defendant committed any act of sex abuse in

regards to [J.R.].” The court agreed to the exclusion. But during the State’s case

in chief, several witnesses violated the limine ruling. For example, Iowa Division

of Criminal Investigation Agent Scott Reger testified Retterath wanted to “kill one

of the victims using castor beans and ricin.” During his direct examination, Sellers

referred to Retterath being charged “with a couple of different crimes” and tried to

clarify a point with the prosecutor by asking: “This is right before he was charged

with the second thing, right?” Sellers also testified, “I know it was longer than less

than two weeks before he was charged with yet another victim.”

       In response to these statements, defense counsel moved for a mistrial,

contending that although the information was not purposefully elicited by the

prosecution, it was nevertheless “highly prejudicial.” The court denied the motion,

reasoning: “I do not think the way it came in . . . would really give the jury any clue,

actually, that there was another sexual abuse charge out there.”

       Then during closing arguments, the prosecutor inadvertently substituted

J.R.’s name for C.L.’s name. The prosecutor recounted Retterath’s testimony: “He

had an answer for everything. . . . Did you ever touch [J.R.]? No. Did you ever

masturbate [J.R.]? No. Did you ever masturbate in front of [J.R.]? No. Just kept

saying no, no, no.”
                                           33


       Retterath raised the limine violations again in moving for a new trial. The

State argued the challenged instances did not alert the jury to the other-bad-acts

evidence:

       [T]he attorneys knew that there was a second victim. The jury did
       not. So when they hear these statements regarding, one of the
       victims or when I accidently said [J.R.] instead of [C.L.], what the jury
       is probably thinking is they just mistakenly switched up the names,
       or we were talking about the two separate times that the defendant
       was convicted.

The court denied the motion for new trial, finding the violations did not have “a

possibility of impacting [the jury’s] decision.”

       The district court enjoys wide discretion in denying a mistrial because “it is

in the best position to appraise the effect of any alleged misconduct.” State v. Frei,

831 N.W.2d 70, 80 (Iowa 2013), overruled on other grounds by Alcala, 880 N.W.2d

at 699. We find no abuse of that discretion in regard to these passing references

to a second victim.

       G.     Motion for New Trial/Prosecutorial Misconduct

       In his final assignment of error, Retterath claims he is entitled to a new trial

based on prosecutorial misconduct. The alleged misconduct involved the State’s

effort to prove Retterath owned a Luger handgun.

       C.L. testified that when he was a young teenager and had a sexual

encounter with Retterath in his pickup, the older man showed him a handgun.

While C.L. did not know what kind of gun it was at the time, in retrospect, he

believed it was a Luger. Retterath testified he never owned a Luger. As rebuttal,

the State offered into evidence a photograph showing an owner’s manual for a

Luger pistol; the manual was found during the warranted search of Retterath’s filing
                                         34


cabinet. Retterath testified in surrebuttal that he sometimes purchased manuals

for guns he did not own.

       Retterath discovered after the trial that the photographed manual was

published in 2009, which means the evidence could not support the inference that

Retterath owned a Luger in 2004 or 2005, when C.L. testified he saw it and felt

threatened to engage in masturbation with Retterath. In closing argument, the

State told the jury Retterath was “trying to separate himself from having the Luger

when [C.L.] was 13 years old.” The prosecutor argued: “So he’s saying, I bought

that manual around this time when all of this was going on . . . . [L]ook at the Ebay

record. There’s nothing in there that he bought a Luger manual. He is not being

honest with you.”

       In his motion for new trial, Retterath alleged prosecutorial misconduct based

on the discussion of the Luger manual. The district court declined to grant a new

trial on that ground, explaining:

       The evidence regarding that particular pamphlet was fairly brief, and
       it’s the Court’s recall that the defendant testified that he never owned
       a Luger-type pistol. . . . The exhibit that’s been introduced here was
       found in the home . . . and that would have an impact on the
       defendant’s credibility and the statements about never having owned
       or had a Luger pistol.

       On appeal, Retterath argues the State’s use of the photograph in rebuttal

violated his right to due process and warrants a new trial.11 The State rejects the




11
   Retterath also argues the State’s use of the manual violated his right to receive
exculpatory evidence under Brady v. Maryland, 373 U.S. 83 (1963). But this argument is
a non-starter because the State never actually seized the manual from Retterath and it
turned over the photograph of the manual during discovery.
                                          35


claim of wrongdoing, asserting the manual became relevant impeachment

evidence when Retterath testified he never owned a Lugar pistol. We agree the

State was entitled to highlight the question of Retterath’s credibility for the jurors.

See State v. Graves, 668 N.W.2d 860, 869 (Iowa 2003) (synthesizing our

prosecutorial-misconduct doctrine). The district court did not abuse its discretion

in denying Retterath’s motion for new trial alleging prosecutorial misconduct.



       IV.    Summary

       To recap, we affirm Retterath’s convictions for sexual abuse in the third

degree and solicitation to commit murder. We reverse his conviction for attempt

to commit murder and remand for dismissal. We also remand for the district court

to conduct an in camera review of the mental-health and substance-abuse medical

records of Sellers and J.R. concerning the solicitation to commit murder conviction.

       AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
