IN THE SUPREME COURT OF IOWA

No. 13–1403

Filed February 27, 2015

STATE OF IOWA,

Appellee,

vs.

MAX V. THORNDIKE,

Appellant.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Scott County, Henry W. 

Latham II, Judge.

Defendant appeals his conviction for lascivious acts with a child 

pursuant to Iowa Code section 709.8, claiming ineffective assistance of 

counsel under the Sixth Amendment to the United States Constitution

and article I, section 10 of the Iowa Constitution. DECISION OF COURT 

OF APPEALS AND JUDGMENT OF DISTRICT COURT AFFIRMED.

Mark C. Smith, State Appellate Defender, and Melinda J. Nye, 

Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Tyler J. Buller, Assistant 

Attorney General, Sean M. Corpstein, Student Legal Intern, Michael J. 

Walton, County Attorney, and Jerald Feuerbach, Assistant County 

Attorney, for appellee.
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ZAGER, Justice.

Max Thorndike appeals his conviction for two counts of sexual 

abuse in the second degree pursuant to Iowa Code section 709.3 (2013), 

and one count of lascivious acts with a child pursuant to Iowa Code 

section 709.8. He maintains there was insufficient evidence to support 

the jury’s finding that he committed sex acts with the minor victims. 

Further, he asserts the district court erred in denying his motion for new 

trial because it applied the incorrect legal standard in concluding the 

weight of the evidence supported his convictions. He also asserts the 

district court abused its discretion in concluding the weight of the 

evidence supported his convictions. Finally, he maintains his trial 

counsel was ineffective in failing to object to the lascivious-acts jury 

instruction he claims was not supported by sufficient evidence. We 

transferred the case to the court of appeals, which affirmed the 

convictions. Thorndike applied for further review, which we granted.

When we grant further review of a decision of the court of appeals, 

we have discretion to select issues for our consideration. See Iowa R. 

App. P. 6.1103(1)(d). In this appeal, we consider only whether 

Thorndike’s trial counsel was ineffective in failing to object to the 

lascivious-acts jury instruction he claims was not supported by sufficient 

evidence. Therefore, we let the court of appeals’ affirmance on the 

remaining issues stand as the final decision of this court. See State v. 

Clay, 824 N.W.2d 488, 494 (Iowa 2012). With respect to Thorndike’s 

claim that trial counsel was ineffective in failing to object to the 

lascivious-acts jury instruction, we conclude Thorndike has failed to 

establish he suffered prejudice as a result of counsel’s failure to object to 

the instruction. We affirm the decision of the court of appeals and the 

judgment of the district court.
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I. Background Facts and Proceedings.

In December 2012, Thorndike was living with his son, Joseph, 

Joseph’s girlfriend, Tiffany, and their four-year-old son, N.T., in a duplex 

located in Davenport, Iowa. On the evening of December 15th, Joseph 

and Tiffany attended a graduation party along with their friends, A.C. 

and M.C., and Thorndike. While at the party, the adults had arranged 

for a babysitter to care for N.T. and the friends’ twin daughters, Jo.S. and 

Ja.S. Jo.S. and Ja.S. were six years old at the time.

While at the party, Joseph received a phone call from his landlord 

who lived in the other half of the duplex. The landlord told Joseph the 

children were being loud and it sounded like N.T. was out of control. The 

adults convened to discuss the issue. Ultimately, it was decided that 

Thorndike would return to the duplex to calm the children. Thorndike 

then left the party and returned to the duplex. A.C. and M.C. left the 

party at approximately 2:00 a.m. so that M.C. could attend to a workrelated matter. The couple then returned to their home. The twins 

stayed at the duplex for the night.

The next morning, M.C. went to the duplex to pick up the twins. 

On the ride home, the twins told M.C. they needed to tell him something. 

The twins then informed M.C. that after Thorndike had returned from 

the party the previous night, he had entered Joseph and Tiffany’s room 

where they were sleeping and made each of them touch his “private 

part.” The police were contacted soon thereafter.

The State charged Thorndike with two counts of sexual abuse in 

the second degree pursuant to Iowa Code section 709.3 and one count of 

lascivious acts with a child pursuant to Iowa Code section 709.8. 

Thorndike entered a plea of not guilty to each of the charges.
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At trial, both Ja.S. and Jo.S. testified that on the evening in 

question, Thorndike came into the room in which they were sleeping, 

walked to the sides of the bed, and briefly made each of them touch his 

“private part.” Neither twin testified that Thorndike touched their genital 

or pubic regions, and the State presented no other evidence to that effect 

at trial.

After the close of evidence, the district court provided the jury with 

the following instruction, quoted in relevant part, regarding the charge of 

lascivious acts with a child:

[T]he State must prove each of the following elements of 

Lascivious Acts with a Child:

1. On or about the 15th day of December, 2012, the 

Defendant, with or without Ja.S. or Jo.S’s consent:

(a) fondled or touched the pubes or genitals of 

Ja.S. or Jo.S.; or

(b) permitted or caused Ja.S. or Jo.S to fondle or 

touch the Defendant’s genitals or pubes.

2. The Defendant did so with the specific intent to 

arouse or satisfy the sexual desires of the Defendant or Ja.S. 

or Jo.S.

3. The Defendant was then 16 years of age or older.

4. Ja.S. or Jo.S. was under the age of 12 years.

The jury was further instructed:

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 as to which 

theory or fact leads to his or her verdict. It is the verdict 

itself which must be unanimous, not the theory of facts upon 

which it is based.

During the State’s closing argument, the attorney for the State 

explained to the jury the elements necessary to sustain a conviction for 

lascivious acts with a child. Specifically, he stated:
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From the evidence in this case we’re talking late in the 

evening of December 15 . . . [t]hat one of two things 

happened. And here the first one, (a), probably doesn’t 

apply. We are talking about the second one, “permitted or 

caused Ja.S. or Jo.S. to fondle or touch the Defendant’s 

genitalia or pubes.”

On June 13, 2013, the jury returned its verdicts finding Thorndike 

guilty of each of the charged offenses. With respect to the charge of 

lascivious acts with a child, the jury’s verdict was on a general verdict 

form.

Thorndike appealed, and we transferred the case to the court of 

appeals. On appeal Thorndike asserted, among other things, that trial 

counsel was ineffective in failing to object to the alternative offered in the 

lascivious-acts jury instruction 1(a) because the State had failed to 

present sufficient evidence to instruct that Thorndike fondled or touched 

the pubes or genitals of Ja.S. or Jo.S. Thorndike argued that because 

the jury returned its verdict on a general verdict form, there was no way 

of knowing on which basis the jury rendered its verdict. Therefore, 

Thorndike argued, he was entitled to a new trial. The court of appeals 

rejected Thorndike’s ineffective-assistance-of-counsel claim. It reasoned 

the jury instruction was a correct statement of the law and that 

Thorndike had failed to show prejudice even if counsel should have 

objected to the instruction.

Thorndike applied for further review, which we granted.

II. Standard of Review.

We review ineffective-assistance-of-counsel claims de novo. Clay, 

824 N.W.2d at 494. This is because such claims are grounded in the 

Sixth Amendment to the United States Constitution.1 Id. In a criminal 

1In his brief, Thorndike cites both the Sixth Amendment and article I, section 10 

of the Iowa Constitution in support of his ineffective-assistance-of-counsel claim. 

Thorndike does not argue that we should interpret article I, section 10 differently than 

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6

case, an ineffective-assistance-of-counsel claim “need not be raised on 

direct appeal from the criminal proceedings in order to preserve the claim 

for postconviction relief purposes.” Iowa Code § 814.7(1). However, a

defendant may raise such a claim on direct appeal if he or she has

“reasonable grounds to believe that the record is adequate to address the 

claim on direct appeal.” Id. § 814.7(2). Ordinarily, we preserve such 

claims for postconviction relief proceedings. Clay, 824 N.W.2d at 494. 

“We prefer to reserve such questions for postconviction proceedings so 

the defendant’s trial counsel can defend against the charge.” State v. 

Tate, 710 N.W.2d 237, 240 (Iowa 2006). “We will resolve the claims on 

direct appeal only when the record is adequate.” Clay, 824 N.W.2d at 

494. In this case, the record is adequate for us to address the merits of 

Thorndike’s ineffective-assistance-of-counsel claim. See State v. 

Maxwell, 743 N.W.2d 185, 195 (Iowa 2008) (concluding record was 

adequate to address ineffective-assistance-of-counsel claim on direct 

appeal when defendant asserted counsel was ineffective in failing to 

object to superfluous aiding-and-abetting instruction); State v. Truesdell, 

679 N.W.2d 611, 616 (Iowa 2004) (“A claim of ineffective assistance of 

trial counsel based on the failure of counsel to raise a claim of 

insufficient evidence to support a conviction is a matter that normally 

can be decided on direct appeal.”).

III. Discussion.

To succeed on a claim of ineffective assistance of counsel, a 

claimant must establish by a preponderance of the evidence: “ ‘(1) his 

trial counsel failed to perform an essential duty, and (2) this failure 

the parallel provisions of the Sixth Amendment. Thus, for purposes of our analysis we 

assume that the legal principles governing both provisions are the same. See Simmons 

v. State Pub. Defender, 791 N.W.2d 69, 76 n.3 (Iowa 2010).

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resulted in prejudice.’ ” State v. Adams, 810 N.W.2d 365, 372 (Iowa 

2012) (quoting State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006)); accord 

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 

L. Ed. 2d 674, 693 (1984). “Unless a defendant makes both showings, it 

cannot be said that the conviction . . . resulted from a breakdown in the 

adversary process that renders the result unreliable.” Strickland, 466 

U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Thus, reversal is 

warranted only where a claimant makes a showing of both of these 

elements. Simmons v. State Pub. Defender, 791 N.W.2d 69, 75–76 (Iowa 

2010). If we conclude a claimant has failed to establish either of these 

elements, we need not address the remaining element. See Clay, 824 

N.W.2d at 501 n.2 (“The court always has the option to decide the claim 

on the prejudice prong of the Strickland test, without deciding whether 

the attorney performed deficiently.”).

Under the first prong, “ ‘we measure counsel’s performance against 

the standard of a reasonably competent practitioner.’ ” Id. at 495

(quoting Maxwell, 743 N.W.2d at 195). It is presumed the attorney 

performed his or her duties competently, and the claimant must 

successfully rebut this presumption by establishing by a preponderance 

of the evidence that counsel failed to perform an essential duty. Id. We 

assess counsel’s performance “objectively by determining whether [it] was 

reasonable, under prevailing professional norms, considering all the 

circumstances.” State v. Lyman, 776 N.W.2d 865, 878 (Iowa 2010).

Under the second prong, the claimant must establish that 

prejudice resulted from counsel’s failure to perform an essential duty. 

Clay, 824 N.W.2d at 496. The claimant must show “counsel’s errors 

were so serious as to deprive [him or her] of a fair trial.” Strickland, 466 

U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. A showing that the 
8

error “conceivably could have influenced the outcome” of the proceeding 

is insufficient. See id. at 693, 104 S. Ct. at 2067, 80 L. Ed. 2d at 697. 

Rather, the effect must be affirmatively demonstrated by showing “there 

is a reasonable probability that, but for counsel’s unprofessional errors, 

the result of the proceeding would have been different.” Id. at 694, 104 

S. Ct. at 2068, 80 L. Ed. 2d at 698; accord King v. State, 797 N.W.2d 

565, 572 (Iowa 2011). “A reasonable probability is a probability 

sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. 

at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. The claimant must 

prove prejudice by a preponderance of the evidence. Clay, 824 N.W.2d at 

496. The ultimate question is “whether there is a reasonable probability 

that, absent the errors, the factfinder would have had a reasonable doubt 

respecting guilt.” Strickland, 466 U.S. at 695, 104 S. Ct. at 2068–69, 80 

L. Ed. 2d at 698; accord Lamasters v. State, 821 N.W.2d 856, 866 (Iowa 

2012).

Thorndike argues his trial counsel was ineffective in failing to 

object to the lascivious-acts jury instruction, specifically alternative 

instruction 1(a), because the State failed to present sufficient evidence to 

prove Thorndike fondled or touched the pubes or genitals of Ja.S. or 

Jo.S. He maintains that he suffered prejudice because the jury returned 

its verdict on a general verdict form such that there is no way of knowing 

on which basis the jury rendered its verdict. More specifically, Thorndike 

argues there is a reasonable probability the jury found him guilty on the 

basis that he fondled or touched the pubes or genitals of Ja.S. or Jo.S.—

a basis not supported by the evidence—instead of on the basis that he 

caused Ja.S. or Jo.S to fondle or touch his genitals or pubes—a basis 

supported by the evidence. Because we conclude this case can be 
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decided under the prejudice prong of Strickland, we now turn to this 

analysis.

At the outset, it is important to note that this case comes before us 

in the context of an ineffective-assistance-of counsel claim, as opposed to 

a direct appeal objecting to the legality of a jury instruction. Thorndike 

is correct in his assertion that on numerous prior occasions we have 

stated that “ ‘[w]ith a general verdict of guilty, we have no way of 

determining which theory the jury accepted.’ ” State v. Martens, 569 

N.W.2d 482, 485 (Iowa 1997) (alteration in original) (quoting State v. 

Hogrefe, 557 N.W.2d 871, 881 (Iowa 1996)); see also, e.g., State v. 

Lathrop, 781 N.W.2d 288, 297 (Iowa 2010) (“When circumstances make it 

impossible for the court to determine whether a verdict rests on a valid 

legal basis or on an alternative invalid basis, we give the defendant the 

benefit of the doubt and assume the verdict is based on the invalid 

ground.”); State v. Heemstra, 721 N.W.2d 549, 558 (Iowa 2006) (“When a 

general verdict does not reveal the basis for a guilty verdict, reversal is 

required.”); State v. Pilcher, 242 N.W.2d 348, 354–56 (Iowa 1976) (holding 

reversal was required when general verdict did not specify the alternative 

upon which the jury based its verdict and one of the alternatives was 

unconstitutional); State v. Mays, 204 N.W.2d 862, 865 (Iowa 1973) (“The 

present case falls under the principle that an instruction submitting an 

issue unsubstantiated by evidence is generally prejudicial.”). However, 

as we have previously explained,

We have made it clear that ineffective-assistance-ofcounsel claims based on failure to preserve error are not to 

be reviewed on the basis of whether the claimed error would 

have required reversal if it had been preserved at trial. 

Rather, a defendant must demonstrate a breach of an 

essential duty and prejudice. In ineffective-assistance-ofcounsel claims “the instruction complained of [must be] of 
10

such a nature that the resulting conviction violate[s] due 

process.”

Maxwell, 743 N.W.2d at 196 (alterations in original) (citations omitted) 

(quoting State v. Hill, 449 N.W.2d 626, 629 (Iowa 1989)); accord State v. 

Tejeda, 677 N.W.2d 744, 754–55 (Iowa 2004) (“It is true that we have 

said that an instruction submitting an issue unsubstantiated by 

evidence is generally prejudicial. Unlike the case at bar, however, [those 

cases] were decided on direct appeal, and not in the ineffectiveassistance-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))). Thus, given the nature of 

Thorndike’s claim, he must affirmatively demonstrate counsel’s alleged 

deficiency undermines our confidence in the verdict and therefore 

resulted in prejudice entitling him to a new trial, regardless of whether 

his claim would require reversal if it were before us on direct appeal. See

Maxwell, 743 N.W.2d at 196–97 (requiring defendant to affirmatively 

demonstrate prejudice when counsel failed to object to a superfluous 

aiding-and-abetting instruction given to the jury by the district court and 

concluding defendant failed to demonstrate the necessary prejudice to 

succeed on his ineffective-assistance-of-counsel claim because it was 

unlikely the “instruction had any effect on the jury’s decision”).

As we have previously stated,

When the submission of a superfluous jury instruction 

does not give rise to a reasonable probability the outcome of 

the proceeding would have been different had counsel not 

erred, in the context of an ineffective-assistance-of-counsel 
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claim, no prejudice results. Further, when there is no 

suggestion the instruction contradicts another instruction or 

misstates the law there cannot be a showing of prejudice for 

purposes of an ineffective-assistance-of-counsel claim.

Id. at 197 (citation omitted).

In this case, the alternative offered in the lascivious-acts jury 

instruction 1(a) did not contradict another instruction given to the jury 

or misstate the law. A person commits the offense of lascivious acts with 

a child when he or she, with or without a child’s consent, “[f]ondle[s] or 

touch[es] the pubes or genitals of a child,” or “[p]ermit[s] or cause[es] a 

child to fondle or touch the person’s genitals or pubes.” Iowa Code 

§ 709.8(1)–(2). This is precisely the instruction the district court gave to 

the jury. It was a correct statement of the law.

Further, even if counsel had objected to the superfluous alternative 

offered in the lascivious-acts jury instruction 1(a), we are not convinced 

on this record there is a reasonable probability the outcome of the 

proceeding would have been different. If trial counsel had objected to the 

jury instruction, the district court simply would have removed the 

offending language and otherwise provided the same instructions to the 

jury. We are confident the jury would have returned the same verdict of 

guilty for a number of reasons. First, the record in this case is devoid of 

any evidence that would have allowed the jury to find that Thorndike 

fondled or touched the pubes or genitals of Ja.S. or Jo.S. Rather, the 

only evidence the State presented to the jury was evidence showing

Thorndike caused Ja.S. or Jo.S to fondle or touch his genitals or pubes. 

See Maxwell, 743 N.W.2d at 197 (concluding defendant failed to 

establish the necessary prejudice to succeed on his ineffectiveassistance-of-counsel claim when the record was “devoid of any evidence” 

that would have allowed the jury to find the defendant guilty based on an 
12

unsupported alternative). Second, during closing argument, the State 

told the jury alternative 1(a) “probably doesn’t apply” and then stated,

“[W]e are talking about the second one, ‘permitted or caused Ja.S. or 

Jo.S. to fondle or touch the Defendant’s genitalia or pubes.’ ”2 If the 

State had presented any evidence to the jury suggesting alternative 1(a) 

applied, or made any argument suggesting a conviction on that basis 

would be proper, this case would pose a much closer question. See

Stromberg v. California, 283 U.S. 359, 368, 51 S. Ct. 532, 535, 75 L. Ed. 

1117, 1122 (1931) (recognizing that when one of three alternatives upon 

which the jury could base its verdict was invalid and “the State’s attorney 

. . . emphatically urged upon the jury that they could convict the 

appellant under the [invalid] clause alone,” the likelihood the jury 

reached its verdict on an invalid alternative was, as a practical matter, 

greater). But here, the State presented no evidence to the jury that could 

support a conviction under alternative 1(a). Likewise, it made no 

argument to the jury that the unsupported alternative applied. Rather, 

the State effectively removed that alternative from the jury’s 

consideration during its closing argument. Under this record, our 

confidence in the jury’s verdict is not undermined.

Based on the record before us, we cannot conclude Thorndike’s 

conviction resulted from a breakdown in the adversary process that 

renders the result unreliable. We are confident the jury reached its 

verdict on the proper basis and that substantial evidence supports the 

verdict. Thorndike has failed to establish the necessary prejudice to 

2Once the State recognized that one of the alternatives contained in the jury 

instruction “probably doesn’t apply,” the better practice would have been to advise the 

court and counsel of this fact and have the jury instruction modified to eliminate the 

alternative.

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succeed on his ineffective-assistance-of-counsel claim. Thus, Thorndike 

has failed to prove he received ineffective assistance of counsel.

IV. Conclusion.

We conclude that Thorndike has failed to establish he suffered 

prejudice as a result of counsel’s failure to object to the lascivious-acts

jury instruction, specifically alternative instruction 1(a). Thus, 

Thorndike’s ineffective-assistance-of-counsel claim must fail. We affirm 

the decision of the court of appeals and the judgment of the district 

court.

DECISION OF COURT OF APPEALS AND JUDGMENT OF 

DISTRICT COURT AFFIRMED.