marshaling instruction in Iowa

2026See State v. Propps, 376 N.W.2d 619, 623 (Iowa 1985) (acknowledging that the marshaling instruction omitted an element of the offense but stating that “[b]ecause his trial counsel failed to object, defendant may not now assert error on appeal”).

2026See State v. Propps, 376 N.W.2d 619, 623 (Iowa 1985) (acknowledging that the marshaling instruction omitted an element of the offense but stating that “[b]ecause his trial counsel failed to object, defendant may not now assert error on appeal”).

2025Nelson did not object to this marshaling instruction, so it is the law of the case for the purpose of assessing his sufficiency-of-the-evidence challenge.2 See State v. Schwartz, 7 N.W.3d 756, 764 (Iowa 2024).

2025As no objection was made to these omissions from the instructions, the instructions became the law of the case for purposes of Heiller’s sufficiency challenge, see Schwartz, 7 N.W.3d at 764, so we analyze the sufficiency based on the charge as marshaled for both charges.

2024See State v. Schiebout, 944 N.W.2d 666 , 671 (Iowa 2020). 4 While Myers does not expressly state which element or elements of the marshaling instruction he contends the State failed to prove, we discern from the substance of his argument that he challenges only the intent component of the first element.

2022As no objection was lodged to the jury instructions, the instructions are the law of the case for purposes of our review of the sufficiency of the evidence.5 Here, the marshaling instruction for the 1 State v. Mathis, 971 N.W.2d 514 , 516 (Iowa 2022). 2 Mathis, 971 N.W.2d at 516. 3 Mathis, 971 N.W.2d at 516–17. 4 Mathis, 971 N.W.2d at 517 (quoting State v. Tipton, 897 N.W.2d 653, 692 (Iowa 2017)). 5 See State v. Schiebout, 944 N.W.2d 666 , 671 (Iowa 2020). 4 ongoing-criminal-conduct charge told the jury that the State must prove all of the following for a finding of guilt on this charge: (1) O

2017Notably, while an argument that counsel failed to object to an erroneous jury instruction has appeal, that appeal “is diminished in most situations where practical considerations make it unlikely that the inclusion of a particular element in the marshaling instruction would have produced any difference in the verdict of the jury.” State v. Broughton, 450 N.W.2d 874, 876 (Iowa 1990).

2015Unlike the case at bar, however, [those cases] were decided on direct appeal, and not in the ineffective-assistance-of-counsel context.” (Citations and internal quotation marks omitted.)); State v. Broughton, 450 N.W.2d 874, 876 (Iowa 1990) (“‘[T]he facial appeal of [the defendant’s argument] ... is diminished in most situations where practical considerations make it unlikely that the inclusion of a particular element in the marshaling instruction would have produced any difference in the verdict of the jury.” ’ (quoting State v. Propps, 376 N.W.2d 619, 623 (Iowa 1985))).

2025The marshaling instruction for assault erroneously failed to indicate that assault can occur only if the defendant acts “without justification.” Id. at 625–27.

2025“The marshaling instruction is the crown jewel of the court’s instructions in a criminal case.” Davis, 951 N.W.2d at 20 (quoting Kuhse, 937 N.W.2d at 633 (Appel, J., concurring specially)).

2017See Miller, 841 N.W.2d at 590 .

2017We look at the elements of the marshaling instruction submitted to the jury and compare them with the statutory elements of the proposed lesser-included offense to “determine if the greater offense can be committed without also committing the lesser offense.” Miller, 841 N.W.2d at 590 .

2017Hillrichs did not involve the omission of an element of proof from the marshaling instruction. 37 We therefore determine HES is entitled to a new trial. 8 Rivera, 865 N.W.2d at 892 (“Prejudice occurs and reversal is required if jury instructions have misled the jury, or if the district court materially misstates the law.”).

2017Hillrichs did not involve the omission of an element of proof from the marshaling instruction. 37 We therefore determine HES is entitled to a new trial. 8 Rivera, 865 N.W.2d at 892 (“Prejudice occurs and reversal is required if jury instructions have misled the jury, or if the district court materially misstates the law.”).

2020The determination logically begins “with the court’s marshaling instruction on the greater offense.” Id. (quoting State v. Turecek, 456 N.W.2d 219, 223 (Iowa 1990)).

1991As we observed in State v. Turecek, 456 N.W.2d 219 (Iowa 1990), “the determination of whether a particular lesser crime must be submitted as a lesser-included offense of the crime charged may logically begin with the court’s marshaling instruction on the greater offense.” Id. at 223 .

2025Relying on a specific intent instruction given to the jury, Liendo contends the State had to prove a higher level of knowledge: that “not only was Liendo aware he possessed an intoxicating beverage and did so voluntarily, but he did so with the specific purpose of introducing it into the jail.” While we question the impact (and applicability) of the specific intent instruction,4 which was not referenced in the marshaling instruction or closing arguments, we conclude the evidence was sufficient to establish that specific intent despite Liendo’s intoxication.5 See State v. Guerrero Cordero, 861

2023Alcala v. Marriott Int’l, Inc., 880 N.W.2d 699, 707 (Iowa 2016).

2026Id. at 298.

2026A marshaling instruction does not need to quote a criminal statute verbatim, but “it must be a correct statement of the law.” State v. Cooley, 21 N.W.3d 137 , 143 (Iowa 2025) (quoting State v. Schuler, 774 N.W.2d 294, 298 (Iowa 2009)).

2025In addition, it will facilitate consideration of “the cumulative effect of the prejudice arising from all the claims.” Id. at 465 (citation omitted) (first quoting State v. Brown, 930 N.W.2d 840, 844 (Iowa 2019); and then quoting State v. Clay, 824 N.W.2d 488, 501 (Iowa 2012)). 9 In Trane I, we foreshadowed the two claims for PCR not at issue arising from Trane’s trial counsel’s failure to move for severance and her failure to object to the marshaling instruction on child endangerment: Ordinarily one might have expected a motion for severance in a case like this.

2019To the contrary, Haskenhoff’s counsel took advantage of the flawed jury instruction in her closing argument.”); see also State v. Clay, 824 N.W.2d 488 , 497–98 (Iowa 2012) (“A prosecutor can argue the law, but cannot instruct the jury on the law.

2025See State v. Davis, 951 N.W.2d 8 , 16 (Iowa 2020) (“We have repeatedly held that timely objection to jury instructions in criminal prosecutions is necessary in order to preserve any error thereon for appellate review.” (quoting State v. Taggart, 430 N.W.2d 423, 425 (Iowa 1988))); see also 4 State v. Brammer, No 24-0127, 2025 WL 52854 , at *6 (Iowa Ct. App. Jan. 9, 2025) (requiring a defendant to object to a marshaling instruction related to territorial jurisdiction to preserve error).

2017See State v. Taggart, 430 N.W.2d 423, 425 (Iowa 1988) (“Failure to timely object to an instruction not only waives the right to assert error on appeal, but also ‘the instruction, right or wrong, becomes the law of the case.’” (citations omitted)).

2024See State v. Canal, 773 N.W.2d 528, 530 (Iowa 2009).

2016See State v. Canal, 773 N.W.2d 528, 530 (Iowa 2009).

2022As no objection was lodged to the jury instructions, the instructions are the law of the case for purposes of our review of the sufficiency of the evidence.5 Here, the marshaling instruction for the 1 State v. Mathis, 971 N.W.2d 514 , 516 (Iowa 2022). 2 Mathis, 971 N.W.2d at 516. 3 Mathis, 971 N.W.2d at 516–17. 4 Mathis, 971 N.W.2d at 517 (quoting State v. Tipton, 897 N.W.2d 653, 692 (Iowa 2017)). 5 See State v. Schiebout, 944 N.W.2d 666 , 671 (Iowa 2020). 4 ongoing-criminal-conduct charge told the jury that the State must prove all of the following for a finding of guilt on this charge: (1) O

2022As no objection was lodged to the jury instructions, the instructions are the law of the case for purposes of our review of the sufficiency of the evidence.5 Here, the marshaling instruction for the 1 State v. Mathis, 971 N.W.2d 514 , 516 (Iowa 2022). 2 Mathis, 971 N.W.2d at 516. 3 Mathis, 971 N.W.2d at 516–17. 4 Mathis, 971 N.W.2d at 517 (quoting State v. Tipton, 897 N.W.2d 653, 692 (Iowa 2017)). 5 See State v. Schiebout, 944 N.W.2d 666 , 671 (Iowa 2020). 4 ongoing-criminal-conduct charge told the jury that the State must prove all of the following for a finding of guilt on this charge: (1) O

2020“As we have noted in the past, ‘trial courts should generally adhere to the uniform instructions.’ ” State v. Becker, 818 N.W.2d 135, 143 (Iowa 2012) (quoting State v. Mitchell, 568 N.W.2d 493, 501 (Iowa 1997)), overruled on other grounds by Alcala v. Marriott Int’l, Inc., 880 N.W.2d 699 , 708 n.3 (Iowa 2016).

2020“As we have noted in the past, ‘trial courts should generally adhere to the uniform instructions.’ ” State v. Becker, 818 N.W.2d 135, 143 (Iowa 2012) (quoting State v. Mitchell, 568 N.W.2d 493, 501 (Iowa 1997)), overruled on other grounds by Alcala v. Marriott Int’l, Inc., 880 N.W.2d 699 , 708 n.3 (Iowa 2016).

2020State v. Howard, 896 S.W.2d 471, 484 (Mo. Ct. App. 1995) (citation omitted); see also Patterson v. State, 576 S.W.3d 240, 246 (Mo. Ct. App. 37 2019) (holding defendant failed to establish Strickland prejudice due to omission of cross-reference to defense in instructions where the instructions as a whole referenced the defense); Wright v. State, 125 S.W.3d 861, 867 (Mo. Ct. App. 2003) (holding defendant failed to establish Strickland prejudice due to lack of cross-reference to defense in instructions where “trial counsel explained the concepts of self-defense and defense-of-another in his closi

2020State v. Howard, 896 S.W.2d 471, 484 (Mo. Ct. App. 1995) (citation omitted); see also Patterson v. State, 576 S.W.3d 240, 246 (Mo. Ct. App. 37 2019) (holding defendant failed to establish Strickland prejudice due to omission of cross-reference to defense in instructions where the instructions as a whole referenced the defense); Wright v. State, 125 S.W.3d 861, 867 (Mo. Ct. App. 2003) (holding defendant failed to establish Strickland prejudice due to lack of cross-reference to defense in instructions where “trial counsel explained the concepts of self-defense and defense-of-another in his closi

2020State v. Howard, 896 S.W.2d 471, 484 (Mo. Ct. App. 1995) (citation omitted); see also Patterson v. State, 576 S.W.3d 240, 246 (Mo. Ct. App. 37 2019) (holding defendant failed to establish Strickland prejudice due to omission of cross-reference to defense in instructions where the instructions as a whole referenced the defense); Wright v. State, 125 S.W.3d 861, 867 (Mo. Ct. App. 2003) (holding defendant failed to establish Strickland prejudice due to lack of cross-reference to defense in instructions where “trial counsel explained the concepts of self-defense and defense-of-another in his closi

2020State v. Howard, 896 S.W.2d 471, 484 (Mo. Ct. App. 1995) (citation omitted); see also Patterson v. State, 576 S.W.3d 240, 246 (Mo. Ct. App. 37 2019) (holding defendant failed to establish Strickland prejudice due to omission of cross-reference to defense in instructions where the instructions as a whole referenced the defense); Wright v. State, 125 S.W.3d 861, 867 (Mo. Ct. App. 2003) (holding defendant failed to establish Strickland prejudice due to lack of cross-reference to defense in instructions where “trial counsel explained the concepts of self-defense and defense-of-another in his closi

2020“As we have noted in the past, ‘trial courts should generally adhere to the uniform instructions.’ ” State v. Becker, 818 N.W.2d 135, 143 (Iowa 2012) (quoting State v. Mitchell, 568 N.W.2d 493, 501 (Iowa 1997)), overruled on other grounds by Alcala v. Marriott Int’l, Inc., 880 N.W.2d 699 , 708 n.3 (Iowa 2016).

2020“As we have noted in the past, ‘trial courts should generally adhere to the uniform instructions.’ ” State v. Becker, 818 N.W.2d 135, 143 (Iowa 2012) (quoting State v. Mitchell, 568 N.W.2d 493, 501 (Iowa 1997)), overruled on other grounds by Alcala v. Marriott Int’l, Inc., 880 N.W.2d 699 , 708 n.3 (Iowa 2016).

2020State v. Howard, 896 S.W.2d 471, 484 (Mo. Ct. App. 1995) (citation omitted); see also Patterson v. State, 576 S.W.3d 240, 246 (Mo. Ct. App. 37 2019) (holding defendant failed to establish Strickland prejudice due to omission of cross-reference to defense in instructions where the instructions as a whole referenced the defense); Wright v. State, 125 S.W.3d 861, 867 (Mo. Ct. App. 2003) (holding defendant failed to establish Strickland prejudice due to lack of cross-reference to defense in instructions where “trial counsel explained the concepts of self-defense and defense-of-another in his closi

2020State v. Howard, 896 S.W.2d 471, 484 (Mo. Ct. App. 1995) (citation omitted); see also Patterson v. State, 576 S.W.3d 240, 246 (Mo. Ct. App. 37 2019) (holding defendant failed to establish Strickland prejudice due to omission of cross-reference to defense in instructions where the instructions as a whole referenced the defense); Wright v. State, 125 S.W.3d 861, 867 (Mo. Ct. App. 2003) (holding defendant failed to establish Strickland prejudice due to lack of cross-reference to defense in instructions where “trial counsel explained the concepts of self-defense and defense-of-another in his closi

2019See, e.g., State v. Heemstra, 721 N.W.2d 549, 553 (Iowa 2006) (including ‘[t]he defendant was not justified’ in the first-degree murder marshaling instruction); State v. Lee, 494 N.W.2d 706, 707 (Iowa 1993) (including ‘[t]hat the defendant did not act with justification [self-defense]’ in the second-degree murder marshaling instruction).

2017Specifically, he complains that one of the two alternative predicate felonies for willful murder set forth in “Alternative B”—the willful injury of Delgado—runs afoul of State v. Heemstra, 721 N.W.2d 549, 558 (Iowa 2006), in which our supreme court held that “if the act causing willful injury is the same act that causes the victim’s death, the former is merged into the murder and therefore cannot serve as the predicate felony for felony-murder purposes.” Nino-Estrada argues the act of willfully injuring Delgado was the same act that caused Delgado’s death.

2025In State v. Harris, the marshaling instruction for going armed with intent omitted the element of “movement.” Id. at 185.

2020In determining Strickland prejudice, “we consider[ed] 16 whether our confidence in the outcome of Harris’s trial [was] undermined by omission of the element of movement in [the marshaling instruction].” Id. at 189 .

2026Id. at 144–45.

2026A marshaling instruction does not need to quote a criminal statute verbatim, but “it must be a correct statement of the law.” State v. Cooley, 21 N.W.3d 137 , 143 (Iowa 2025) (quoting State v. Schuler, 774 N.W.2d 294, 298 (Iowa 2009)).

2026When read together, see Ross, 986 N.W.2d at 586, the instructions adequately instructed the jury of the link between the two elements identified in the marshaling instruction.

2026When read together, see Ross, 986 N.W.2d at 586, the instructions adequately instructed the jury of the link between the two elements identified in the marshaling instruction.

2025See Iowa Code § 701.9 (“If the jury returns a verdict of guilty of more than one offense and such verdict conflicts with this section, the court shall enter judgment of guilty of the greater of the offenses only.”); Brown, 996 N.W.2d at 697–98 (applying the legal-elements test to the marshaling instruction); State v. Cook, 996 N.W.2d 703 , 710–11 (Iowa 2023) (same); State v. Hickman, 623 N.W.2d 847 , 850–51 (Iowa 2001) (en banc) (same); State v. Lambert, 612 N.W.2d 810 , 815–16 (Iowa 2000) (en banc) (same); State v. Anderson, 565 N.W.2d 340, 344 (Iowa 1997) (“When a statute provides alternativ

2020The determination logically begins “with the court’s marshaling instruction on the greater offense.” Id. (quoting State v. Turecek, 456 N.W.2d 219, 223 (Iowa 1990)).

2025See Iowa Code § 701.9 (“If the jury returns a verdict of guilty of more than one offense and such verdict conflicts with this section, the court shall enter judgment of guilty of the greater of the offenses only.”); Brown, 996 N.W.2d at 697–98 (applying the legal-elements test to the marshaling instruction); State v. Cook, 996 N.W.2d 703 , 710–11 (Iowa 2023) (same); State v. Hickman, 623 N.W.2d 847 , 850–51 (Iowa 2001) (en banc) (same); State v. Lambert, 612 N.W.2d 810 , 815–16 (Iowa 2000) (en banc) (same); State v. Anderson, 565 N.W.2d 340, 344 (Iowa 1997) (“When a statute provides alternativ

2025While we consider all evidence in the record—not just evidence supporting guilt—we view that evidence “in the light most favorable to the State” and draw all “legitimate inferences and presumptions that may fairly and reasonably be deduced.” Cook, 996 N.W.2d at 708 (citation omitted). 3 With that standard of review in mind, we turn to the marshaling instruction given to the jury:1 The State must prove all of the following elements of Possession of Contraband in a Jail Facility: 1.

2025See Iowa Code § 701.9 (“If the jury returns a verdict of guilty of more than one offense and such verdict conflicts with this section, the court shall enter judgment of guilty of the greater of the offenses only.”); Brown, 996 N.W.2d at 697–98 (applying the legal-elements test to the marshaling instruction); State v. Cook, 996 N.W.2d 703 , 710–11 (Iowa 2023) (same); State v. Hickman, 623 N.W.2d 847 , 850–51 (Iowa 2001) (en banc) (same); State v. Lambert, 612 N.W.2d 810 , 815–16 (Iowa 2000) (en banc) (same); State v. Anderson, 565 N.W.2d 340, 344 (Iowa 1997) (“When a statute provides alternativ

2014Turecek, 456 N.W.2d at 223 ; see also State v. Hickman, 623 N.W.2d 847, 850 (Iowa 2001).