                    IN THE COURT OF APPEALS OF IOWA

                                  No. 15-0274
                             Filed August 31, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

CHRISTOPHER HARLEY SIMMS,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Dubuque County, Monica L.

Ackley, Judge.



      A defendant appeals from the jury trial finding him guilty of ongoing

criminal conduct and the judgment and sentence imposed. REVERSED AND

REMANDED.



      Mark C. Smith, State Appellate Defender, and Mary K. Conroy, Assistant

Appellate Defender, for appellant.

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

General, for appellee.



      Considered by Danilson, C.J., Mullins, J., and Goodhue, S.J.

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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GOODHUE, Senior Judge.

       Christopher Harley Simms appeals the judgment entered and the

sentence imposed after a jury found him guilty of ongoing criminal conduct.

   I. Background Facts

       In February 2013, Simms started a nonprofit organization he named

Forged By Fire (FBF). The purpose of the organization, as stated in the articles

of incorporation, was to assist prisoners with “finding housing, finding

employment, job skills, training and connecting with drug and alcohol abuse

providers” upon their release. Simms sought out and obtained donations from

those who lived in or around Dubuque. When collecting donations, Simms would

explain the purpose of FBF, emphasizing he wanted to help veterans, in

particular.

       Simms had as many as three men living in his home at one time, all

apparently with some degree of drug problems. One of the young men, Dakota

Goarcke, often accompanied Simms in his solicitation efforts, and Simms

referred to Goarcke as one of the people he was helping. Simms and Goarcke

had met the day Goarcke was released from drug rehabilitation, and within

twenty-four hours, Simms had offered Goarcke crack. Goarcke could not resist

the temptation, and he and Simms smoked crack together. At one point, Simms

began masturbating and insisted that Goarcke also masturbate if he wanted

more crack. Goarcke complied. Goarcke testified that when Simms received a

donation, he would often immediately use the donation to buy more drugs. After

approximately two months, Goarcke and Simms had a falling out, and they

parted ways.
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       Jacob Nilles testified that he met Simms while purchasing drugs and

assumed his dealer was obtaining drugs from Simms. Nilles also eventually

moved in with Simms. Nilles and Simms began using drugs together. Nilles also

accompanied Simms when he was asking for donations, though he stayed in the

car. He testified Simms cashed the checks received as donations to FBF and

used the money to buy drugs. Nilles also accompanied Simms to a doctor’s

office in Wisconsin, where Simms obtained hydrocodone and a fentanyl patch.

Simms gave some of the hydrocodone and the patch to Nilles and sold the rest.

At times, Simms would touch Nilles inappropriately and force himself on Nilles,

but Nilles testified he was helpless because he depended on Simms for drugs.

       In addition, John Wolgran testified that he drove Simms around to obtain

donations and that afterward they would usually go right to a drug dealer, using

the donations to obtain crack for immediate consumption.         Multiple Dubuque

residents testified concerning Simms’s solicitation of donations from them. There

was also evidence that Simms obtained prescription narcotic medications from

multiple sources for his use, the use of those he was “helping,” or for sale.

       A trial information was filed, charging Simms with ongoing criminal

conduct.   The predicate offenses charged in the trial information were “theft,

controlled substance violation, prostitution, and fraudulent practices.”        At the

close of the State’s evidence during trial, Simms moved for acquittal. Among

other things, his motion generally raised a claim that the State had failed to prove

any crime he committed resulted in financial gain. The motion did not specify

which unlawful criminal act failed to result in financial gain but was instead a

broad, sweeping, all-inclusive objection. The motion was overruled.
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         At the close of the evidence the following marshalling instruction was

given.

                In order for the defendant to be found guilty of On-Going
         Criminal Conduct, the State must prove the Defendant committed a
         specified unlawful activity as defined herein as:
                (1) any act including any or all of the following preparatory or
         completed offenses, namely:
                    (a) fraudulent practices;
                    (b) theft;
                    (c) possession of controlled substances;
                    (d) prostitution; and
                (2) committed for financial gain on a continuing basis; and
                (3) that is punishable as indictable offense under the law of
         the State in which it occurred.
                Each of the foregoing named offenses is an indictable
         offense under the laws of the Iowa Criminal Code.

Simms’s counsel made no objection to the marshalling instruction and actually

participated in its formation. Based on an objection by Simms’s counsel, the trial

court excluded other suggested predicate offenses from the instructions. At the

close of the evidence, Simms renewed his motion, but he made no further record

or specification as to the grounds for acquittal.

   II. Motion for Judgment of Acquittal

         Simms first challenges the denial of his motion for judgment of acquittal.

He contends there is insufficient evidence to show he participated in prostitution

or possessed controlled substances for financial gain.

         The State agrees there was no evidence Simms procured any financial

gain from prostitution, but it contends error was not preserved. In the alternative,

the State argues that inclusion of prostitution as a predicate offense was

superfluous and harmless error.
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         The requirement for error preservation is based on fairness.       State v.

Ambrose, 861 N.W.2d 550, 555 (Iowa 2015). The objective is to allow the court

an opportunity to correct the error and the appellate court a record on which the

error could be reviewed. Id. It is necessary to point out specific evidentiary

deficiencies in the motion. See State v. Crone, 545 N.W.2d 267, 270 (Iowa

1996).

         In the motion for acquittal, Simms generally called attention to the lack of

evidence connecting the indictable offenses with financial gain.          The State

contends that when error is based on the submission of an alternative theory not

supported by sufficient evidence, a specific objection to the unsupported

alternative theory is essential to preserve error. While we are not willing to

accept such a sweeping requirement, we have concluded the all-encompassing

motion was not specific enough to preserve error under the facts of this case.

From a practical standpoint, if the court had sustained the all-inclusive motion,

the charges would have been dismissed in their entirety. Admittedly, that places

a heavy burden on trial counsel to have been more specific at the close of the

State’s evidence and may be nearly an impossibility when the charge is ongoing

criminal conduct.

         It appears the State may be able to withhold the predicate offenses it is

relying on until the instructions are given. See State v. Reed, 618 N.W.2d 327,

330-31 (Iowa 2000). It would seem logical that defense counsel could require

the prosecutor to designate the predicate offenses as a part of the motion to

acquit, but it was not done here. The court was in no position to do anything

other than overrule the general motion. When the marshalling instruction was
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given, the sorting became much easier and absolutely critical, but counsel did not

object to either drug possession or prostitution as a possible predicate offense.

Because no objection was made, error was not preserved. In the alternative,

Simms contends he received ineffective assistance of counsel.

   III. Ineffective Assistance of Counsel

         A. Error Preservation

         The ordinary rules of error preservation do not usually apply to claims of

ineffective assistance of counsel. State v. Fountain, 786 N.W.2d 260, 263 (Iowa

2010).

         B. Standard of Review

         Ineffective-assistance-of-counsel claims raise constitutional issues and,

therefore, are reviewed de novo.      Lemasters v. State, 821 N.W.2d 856, 862

(Iowa 2012). When the record is adequate, a claim of ineffective assistance of

counsel may be decided on direct appeal. State v. Artzer, 609 N.W.2d 526, 531

(Iowa 2000). In this case, the record is adequate.

         C. Discussion

         Simms alleges he received ineffective assistance of counsel based on

counsel’s failure to object to the instructions not supported by substantial

evidence and to a violation of his right to remain silent. To prevail on a claim of

ineffective assistance of counsel, a claimant must prove by a preponderance of

the evidence that (1) counsel failed to perform an essential duty and (2) prejudice

resulted. Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001). A claim of

ineffective assistance must overcome the presumption that counsel is competent.

Taylor v. State, 352 N.W.2d 683, 685 (Iowa 1984). An accused is not entitled to
                                         7


perfect representation but only that level of representation that is within the

normal range of competency. Artzer, 609 N.W.2d at 531. “To establish prejudice

the claimant must show the probability of a different result sufficient to undermine

the confidence in the outcome.” State v. Thorndike, 860 N.W.2d 316, 320 (Iowa

2015). Counsel is not ineffective for failing to make a meritless claim. State v.

Brubaker, 805 N.W.2d 164, 171 (Iowa 2011).

          1. Error in Instructions

       The State admits there was no evidence connecting the crime of

prostitution with any financial gain Simms may have enjoyed. If there was any

payment, it was from Simms to others. However, the State contends the mere

possession of cocaine allowed Simms to use and control Goarcke for the

purpose of obtaining donations, and it therefore follows that Simms’s possession

of a controlled substance was committed for financial gain.

       “The ongoing-criminal-conduct statute focuses on reducing the economic

power of those who engage in ongoing illegal businesses for profit.” Reed, 618

N.W.2d at 336.       Although there was evidence Goarcke was an addict,

possession is not a business and does not produce a profit. The possession of

controlled substances was incidental to the business of obtaining donations for

FBF. Simms’s possession of controlled substances is remote from any affect it

had on his scheme to obtain donations. To the extent Simms used drugs to

control Goarcke, it was the delivery or promise of delivery that was used to

influence Goarcke, not the crime of mere possession.

       When the verdict is a general verdict, it is error to include an alternative

method of committing a crime not supported by the evidence. State v. Tyler, 873
                                          8

N.W.2d 741, 754 (Iowa 2016). The Tyler court rejected the distinction between a

legal error and a factual error in Griffin v. United States, 502 U.S. 46, 56 (1991).

Id.

       On direct appeal, an incorrect instruction is presumed to be prejudicial.

State v. Mayes, 204 N.W.2d 862, 865 (Iowa 1973).               To succeed on an

ineffective-assistance-of-counsel claim, it is necessary to establish prejudice.

Thorndike, 860 N.W.2d at 321.

       The prejudice prong of an ineffective-assistance-of-counsel claim that

stems from an instruction on an alternative method of committing a crime that is

unsupported by the evidence is not satisfied if the record is devoid of any

evidence that suggests the unsupported alternative is applicable.       Id. at 322;

State v. Maxwell, 743 N.W.2d 185, 197 (Iowa 2008). In Maxwell, the jury was

erroneously instructed on aiding and abetting when there was no evidence of

aiding and abetting in the record.        743 N.W.2d at 197.     In Thorndike, the

prosecutor’s closing argument stated the erroneously inserted theory of the crime

probably did not apply. 860 N.W.2d at 322. In both cases, prejudice was not

established. See id. at 323; Maxwell, 743 N.W.2d at 197.

       The present situation is substantially different from the Maxwell and

Thorndike cases. This record is laden with references to drugs, forced sex, and

sex exchanged for drugs. The prosecutor frequently mentioned predatory sex,

drugs, and drug addiction.       When referring to the four alternative predicate

crimes, the prosecutor stated, “There is evidence of all four and the State

believes that you could find all four.”
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       We must then determine whether confidence in the verdict has been

undermined. A question the jury forwarded to the court during deliberation brings

the answer into focus. The jury, by way of its foreperson, asked, “Do all jurors

have to agree on a specific act or offense, or do we all simply have to believe he

committed at least one of the four even if we don’t agree which one?” The court

responded, “Refer to instruction number 10,” which was taken from Iowa Uniform

Jury Instruction 100.16:

       Where two or more alternative theories are presented or where two
       or more facts would produce the same result, the law does not
       require each juror to agree to which theory or fact leads to his or
       her verdict. It is the verdict itself which must be unanimous not the
       theory or facts upon which it is based.

The jury returned the general verdict of guilty within forty minutes after receiving

the court’s direction.

       On the facts before us, we conclude trial counsel was ineffective and a

new trial is warranted.

           2. Violation of Right to Remain Silent

       Simms further contends that his Fifth Amendment right to remain silent

was violated when his refusal to respond to an investigator’s questions after

receiving a Miranda warning was brought out on his cross-examination and

commented on by the prosecutor during closing argument. See State v. Metz,

636 N.W.2d 94, 97 (Iowa 2001) (“[T]he Fifth Amendment guaranty against self-

incrimination prohibits impeachment on the basis of a criminal defendant’s

silence after receipt of Miranda warnings.”). This issue is not likely to occur on

retrial; therefore, we find it unnecessary to rule on it.
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   IV. Conclusion

      Because Simms’s counsel was ineffective by failing to object to the

inclusion of jury instructions that contained theories not supported by substantial

evidence, this matter is reversed and remanded for a new trial.

      REVERSED AND REMANDED.
