IN THE COURT OF APPEALS OF IOWA

No. 3-1208 / 13-0209

Filed February 19, 2014

RONALD D. HAY,

Applicant-Appellant,

vs.

STATE OF IOWA,

Respondent-Appellee.

________________________________________________________________

Appeal from the Iowa District Court for Buchanan County, Todd A. Geer, 

Judge.

Ronald Hay appeals from the denial of his application for postconviction 

relief. AFFIRMED.

John J. Sullivan of Sullivan Law Office, P.C., Oelwein, for appellant.

Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney 

General, Shawn M. Harden, County Attorney, and Dustin S. Lies, Assistant 

County Attorney, for appellee State.

Considered by Danilson, C.J., and Vaitheswaran and Potterfield, JJ.
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POTTERFIELD, J.

Ronald Hay appeals from the denial of his application for postconviction 

relief. He argues his trial counsel was ineffective for failing to call a witness and 

in failing to object to or request a jury instruction. He argues his postconviction 

counsel was ineffective in failing to obtain the testimony of a different witness. 

Finally, he argues the prosecutor committed misconduct in surprising him at trial 

with an aiding and abetting theory. We affirm.

I. Facts and Proceedings.

This is the second time we have heard Hay’s case on appeal. We set 

forth the facts here as written in the direct appeal:

On September 30, 2005, a deputy sheriff came to Hay’s 

home to talk to him about a motorcycle of his that was stolen. The 

deputy saw an overhead garage door was open and he walked 

inside looking for Hay. He noticed two LP tanks with altered fittings 

and valves and a bottle of Red Devil Lye drain opener. Eventually 

Hay came to the door of his home and told the deputy his brother 

was with him. At the deputy’s request Hay stepped out and, when 

questioned, told the deputy the garage and the things in it were his.

The two men went to the garage where the deputy inspected the 

tanks. There was a glass Frank’s Sauerkraut jar containing liquid 

on a shelf, coffee filters, and white sediment. Hay denied the 

deputy’s request to search his house and garage and a search 

warrant was obtained. Subsequently the officers additionally found 

Rooto drain opener, a garden hose, Red Devil Lye, an open lithium 

battery pack containing alkaline batteries, coffee filters, an empty 

starter fluid can, a light bulb smoking device, a Mason jar with 

Coleman fuel, a Mountain Dew bottle containing a white mixture 

with a rag in the bottle and a hose, four ketchup bottles containing 

salt, a box of glass tubes and beakers, a self-contained-breathingapparatus mask, miscellaneous glassware, a notebook with Hay’s 

name on it, three hypodermic needles, a spoon with white residue 

and a cotton ball, a finger scale, plastic baggies some marked with 

“25” and “100,” a can of Coleman fuel, a scale with a small quantity 

of methamphetamine on it, a snort tube, and a shaving cream can 

with a false bottom that contained several small clear baggies.

Three items were taken to the DCI laboratory. A criminalist 

with the division explained at trial the process of manufacturing 
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methamphetamine using the lithium-ammonia reduction method. 

She examined the three items seized from Hay. The items 

included a bilayer of liquid with coffee filters and solids. She took 

samples of the upper layer of the liquid and found it contained 

methamphetamine. She examined the lower level, which she found 

consistent with engine starting fluid and it contained ether in 

addition to methamphetamine, CMP [a by-product of manufacturing 

methamphetamine], and a precursor, pseudoephedrine. She 

examined a metal spoon containing a fiber wad and residue. She 

found the spoon had crystalline reside containing 

methamphetamine and dimethyl sulfone which is a veterinary 

product used as a cutting agent. There was a plastic bag 

containing a white crystalline substance and dimethyl sulfone.

State v. Hay, No. 06–1032, 2008 WL 2902172, at *2–3 (Iowa Ct. App. July 30,

2008).

Hay was arrested and a charged by trial information with manufacturing 

more than five grams of methamphetamine as a second offender. Trial before a 

jury commenced May 10, 2006. Hay testified and presented as his defense 

evidence the material in his garage belonged to another person. The jury found 

Hay guilty as charged on May 15, 2006. Hay appealed to this court. and we 

affirmed the trial court on July 30, 2008. See id. Hay filed an application for 

postconviction relief, alleging several claims of ineffective assistance of counsel 

and prosecutorial misconduct. Hay’s original trial counsel died between the trial 

and postconviction proceedings. Hay and his mother testified at the 

postconviction proceeding, along with the trial court judge. The depositions of

two police witnesses were submitted to the court after the hearing. On January 

30, 2013, the postconviction court dismissed Hay’s application. He appeals.

II. Analysis.

We review claims of ineffective assistance of counsel de novo. Ledezma 

v. State, 626 N.W.2d 134, 141 (Iowa 2001). To demonstrate he was provided 
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with ineffective assistance, Hay must show both that his counsel performed 

deficiently and that but for this deficiency, there is a reasonable probability that 

the result of the proceeding would have been different. Id. at 142–43. We need 

not look to whether counsel’s performance was deficient if Hay cannot 

demonstrate prejudice. See id. at 143. “[T]he nature of the ineffective 

assistance as well as the nature and strength of the evidence produced by the 

State at trial are important factors” when determining whether a defendant was 

prejudiced by his counsel’s alleged deficiencies. Id. at 148. 

A. Failure to call witnesses.

Hay’s defense at trial consisted of alleging the methamphetamine 

production paraphernalia found by police in his house belonged to various other 

people. In the case of the sauerkraut jar, he argued the jar belonged to Todd 

Manley, who was arrested for manufacturing methamphetamine. He argues now 

that his trial counsel was ineffective for failing to call Mike Derbyshire, who was to 

testify that he helped unload Manley’s belongings into Hay’s garage. In its ruling 

on Hay’s application for postconviction relief, the district court noted the evidence 

presented by this witness would have been cumulative to testimony offered at 

trial by another defense witness. We agree and therefore conclude Hay cannot 

demonstrate the requisite prejudice to establish his ineffective-assistance claim

regarding this witness. See id. at 143.

Hay next argues his postconviction counsel was ineffective in failing to find 

and depose or otherwise secure Manley’s testimony. He reasons, 

“Postconviction counsel knew that Hay’s defense was that the jar and its 

contents belonged to Manley. Had postconviction trial counsel secured Manley’s 
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testimony, said testimony would be available for consideration by the 

postconviction court.” Hay does not argue now, and did not argue before the 

postconviction court, that his trial counsel was ineffective for failing to call 

Manley. It is unclear what issue Manley’s testimony could have aided the 

postconviction court in deciding. Hay’s postconviction arguments were: trial 

counsel was ineffective in failing to call Derbyshire, failing to object to jury 

instructions, and failing to request a spoliation instruction. He also raised 

prosecutorial misconduct, claiming he was excluded from conferences on jury 

instructions, and that his conviction was supported by insufficient evidence. Out 

of all of these claims, Manley’s testimony could only pertain to the sufficiency of 

the evidence, and the district court correctly found we already determined that 

issue on Hay’s direct appeal. We therefore find Hay’s postconviction counsel did 

not breach an essential duty by failing to call Manley as a witness. See id. at 

142.

B. Failure to object to aiding and abetting instruction and request 

accessory after the fact instruction.

Hay next argues his counsel was ineffective in failing to object to an 

instruction on aiding and abetting the manufacture of methamphetamine. 

Instead, Hay argues his counsel should have requested an instruction on acting 

as an accessory after the fact. The district court dismissed this argument, stating 

the aiding and abetting instruction was appropriate in light of Hay’s defense—that 

the items seized belonged to someone else. Hay relies on our rule that “[a]n 

accused may not be convicted as a principal on the theory of aiding and abetting 

for conduct that only supports an accessory after the fact.” State v. Hustead, 538 
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N.W.2d 867, 870 (Iowa Ct. App. 1995). Hay argues he “simply testified that the 

jar containing evidence of methamphetamine was not his.” However, he told 

police everything in the garage was his, testified he personally moved the jar into 

the garage, and he blamed others for the remaining manufacturing paraphernalia 

found inside his home. He stated he, along with two other people, wrote in a 

notebook containing instructions for the purchase of items to manufacture 

methamphetamine. This is not a situation where the evidence only supported a 

theory of Hay acting as an accessory after the fact. An objection to the aiding 

and abetting instruction would not have been effective; counsel therefore had no 

duty to request an accessory after the fact instruction. See State v. Maxwell, 743 

N.W.2d 185, 197 (Iowa 2008) (“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 claim, no prejudice results.”).

C. Prosecutorial misconduct.

Hay’s final argument is that the prosecutors committed misconduct when 

they failed to notify him before trial they would request an aiding and abetting 

instruction.1 He argues “The State never charged Hay under a theory of aiding 

and abetting and the State’s evidence did not support an aiding and abetting 

theory. Hay suffered prejudice because he was unable to adequately prepare a 

 

1 The State argues the prosecutorial-misconduct claim can only be raised in the context 

of an ineffective-assistance-of-counsel claim because it was not raised at trial. However, 

the State did not argue Hay’s prosecutorial-misconduct claim was waived before the 

postconviction court. The postconviction court addressed Hay’s prosecutorial 

misconduct claim on the merits. We therefore consider the issue as submitted by Hay. 

DeVoss v. State, 648 N.W.2d 56, 63 (Iowa 2002).
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defense that would rebut this theory.” Hay cites no authority for his claim an 

aiding and abetting theory could not be raised at trial. In fact, our supreme court 

has explicitly held such notice is not necessary. Wilker v. Wilker, 630 N.W.2d 

590, 595 (Iowa 2001) (“We do not require the theory of aiding and abetting to be 

pled even in a criminal case where the loss of many fundamental interests are at 

stake.”); see also State v. Black, 282 N.W.2d 733, 734 (Iowa 1979). We 

therefore affirm.

AFFIRMED.