IN THE COURT OF APPEALS OF IOWA

No. 18-1583

Filed February 5, 2020

STATE OF IOWA,

Plaintiff-Appellee,

vs.

JEREMY LEE HILL,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Warren County, Thomas P. Murphy, 

Judge.

Jeremy Hill appeals his conviction of theft in the second degree. 

AFFIRMED.

Nathan A. Olson of Branstad & Olson Law Office, Des Moines, for appellant.

Thomas J. Miller, Attorney General, and Richard Bennett, Assistant 

Attorney General, for appellee.

Heard by Tabor, P.J., and Mullins and Schumacher, JJ.
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MULLINS, Judge.

Jeremy Hill appeals his conviction of theft in the second degree. Hill argues 

the district court erred and violated his constitutional rights in providing an aidingand-abetting jury instruction, insufficient evidence was provided to support the 

conviction, and he received ineffective assistance of counsel at trial. 

I. Background Facts and Proceedings

Hill was the manager of a convenience store in the summer of 2017. While 

working second shift on September 10, Hill reported a theft to the Warren County 

Sheriff’s Department. Hill reported that bank deposits for two days were taken 

after Hill placed them in his personal vehicle. Hill provided a statement that he 

placed the deposits in his vehicle, went back into the store to retrieve his cell 

phone, and, upon returning to his vehicle some time later, discovered the door was 

open and the deposits were missing. Hill also said he moved his vehicle from 

designated employee parking to a location visible from the cash register of the 

convenience store prior to placing the deposits in the vehicle. Hill was working 

with another employee at the time of the incident. Hill and his co-worker were both 

questioned by law enforcement. The co-worker has since left the state and could 

not be found to provide testimony at trial. It was later discovered that four days’

worth of deposits, not two as originally reported, were taken. The total amount 

taken was just over $9500 in cash and checks. In October, Hill was charged with 

theft in the second degree and conspiracy to commit a non-forcible felony in 

relation to the September 10 incident. 

Hill entered a plea of not guilty and the case proceeded to trial in July 2018. 

Surveillance footage from the convenience store showed a person wearing a hood 
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walk by the front of the convenience store immediately before Hill removed the 

deposits from the safe and placed them in his vehicle. Hill testified he walked 

around the back of the building to perform his duties, including inspecting the area 

for waste and checking trash cans. Hill stated he did not encounter anyone when 

walking behind the building. The State argued Hill would have seen the hooded 

individual behind the building, as both people were behind the building at the same 

time. The State also argued Hill’s repeated use of his cell phone prior to the 

incident and behavior after seeing the hooded individual indicated he was in 

communication with a co-conspirator. Testimony showed Hill told the investigating 

officer he did not know the hooded individual, and that the individual’s face was 

covered when passing by the store. 

Hill moved for judgment of acquittal at the close of the State’s case-in-chief, 

arguing the State failed to prove the specific intent element required for conviction. 

The motion was denied. Hill renewed his motion prior to closing arguments, relying 

on the same argument. The motion was again denied. Hill also objected to entry 

of jury instruction sixteen, an aiding-and-abetting instruction, arguing no evidence 

was presented to suggest a common scheme existed. The court found “sufficient 

circumstantial evidence for [instruction sixteen] to be a jury question in this case” 

and submitted the instruction to the jury for deliberation. 

Hill was convicted of theft in the second degree. Prior to sentencing, Hill 

moved for a new trial arguing instruction sixteen was improper, insufficient 

evidence supported the conviction of theft in the second degree, and neither theory 

presented by the State supported the conviction. All three motions were overruled. 

Hill appeals.
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II. Analysis

Hill argues instruction sixteen was both an improper statement of the law 

on aiding and abetting and that it violated his constitutional rights. Hill also argues 

insufficient evidence was presented to support his conviction and he received 

ineffective assistance of counsel. The State challenges error preservation on both 

arguments related to instruction sixteen. The State also argues sufficient evidence 

was presented to support either theory of guilt and Hill’s trial counsel was 

effective.1

A. Instruction Sixteen Error Preservation

The State argues Hill did not preserve error on any arguments raised on 

appeal related to instruction sixteen. Specifically, the State argues the theory of 

the objection at trial, that no evidence supported issuing the instruction to the jury, 

does not preserve the argument raised on appeal, that the instruction misstated 

the law. 

Appellate courts “consider only those objections to instructions a party 

previously raised with the district court.” State v. Maghee, 573 N.W.2d 1, 8 (Iowa 

1997) (citing State v. Hepperle, 530 N.W.2d 735, 738 (Iowa 1995)). “A party’s 

objection must be sufficiently specific to alert the district court to the basis for the 

complaint,” and “a party is bound by the objection the party makes to the district 

 

1

In its brief, the State argues this court should not consider Hill’s ineffectiveassistance claim on direct appeal. The brief was filed before our supreme court 

issued a ruling on the retroactivity of newly enacted legislation limiting this court’s 

ability to hear ineffective-assistance claims on direct appeal. See 2019 Iowa Acts 

ch. 140, § 31 (codified at Iowa Code § 814.7 (2019)). Since that time, our supreme 

court has held the legislation does “not apply to a direct appeal from a judgment 

and sentence entered before July 1, 2019.” State v. Macke, 933 N.W.2d 226, 228 

(Iowa 2019). Thus, we may consider the merits of the claim.
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court’s instructions and may not amplify or change the objection on appeal.” Id.

(citing Hepperle, 530 N.W.2d at 738). 

Hill alleges error was preserved by objection on the record during trial, filing 

post-trial motions, and filing a timely notice of appeal. At trial, Hill’s objection to 

the instruction was general, insisting no evidence was provided to suggest Hill was 

involved in a common scheme, let alone that one existed at all. In his post-trial 

motion for new trial and in arrest of judgment Hill lodged the same complaint. At 

no time did Hill argue to the district court that there was any problem with the 

language contained in instruction sixteen. Hill finally argues error was preserved 

by his notice of appeal. 

We agree that Hill objected at trial and through post-trial motion, and the 

district court ruled on both, preserving error on the argument the instruction should 

not have been given at all. See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 

2002). However, no objection based on a misstatement of the requisite level of 

intent was ever raised. Because the precise jury-instruction issue was not raised, 

the district court could not rule and neither can we.2 See id. Error was not 

preserved on arguments related to jury instruction sixteen. 

B. Sufficiency of the Evidence

Challenges to sufficiency of the evidence are reviewed for corrections of 

errors at law. State v. Canal, 773 N.W.2d 528, 530 (Iowa 2009). We must 

 

2 This court has previously found the argument that notice of appeal is sufficient to 

preserve error is without merit. See, e.g., Friedrich v. State, No. 10-1250, 2011 

WL 2112783, at *2 (Iowa Ct. App. May 25, 2011) (citing Thomas A. Mayes & 

Anuradha Vaitheswaran, Error Preservation in Civil Appeals in Iowa: Perspectives 

on Present Practice, Drake L. Rev. 39, 48 (Fall 2006)). 
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“determine whether a rational trier of fact could have found the defendant guilty of 

the offense charged beyond a reasonable doubt.” State v. Millsap, 704 N.W.2d 

426, 430 (Iowa 2005) (quoting State v. Anspach, 627 N.W.2d 227, 231 (Iowa 

2001)). Evidence is viewed in the light most favorable to the State. Canal, 773 

N.W.2d at 530. 

Instruction twelve was the marshalling instruction and informed the jury of 

all the elements of theft that must be proven in this case: 

The State must prove all of the following elements of Theft:

(1) On or about September 10, 2017, Jeremy Lee Hill took 

possession or control of money,

(2) Jeremy Lee Hill did so with the specific intent to deprive 

the owner of the money,

(3) The money, at the time of the taking, belonged to [the 

convenience store].

If the State has proved all of the elements, Jeremy Lee Hill is 

guilty. You must then determine the degree of Theft, as explained in 

instruction No. 13. If the State has failed to prove any element, 

Jeremy Lee Hill is not guilty. 

Instruction fourteen defined specific intent: 

Concerning Element No. 2 of Instruction No. 12, “specific intent” 

means not only being aware of doing an act and doing it voluntarily, 

but in addition, doing it with a specific purpose in mind.

Because determining Jeremy Lee Hill’s specific intent 

requires you to decide what he was thinking when an act was done, 

it is seldom capable of direct proof. Therefore, you should consider 

the facts and circumstances surrounding the act to determine 

Jeremy Lee Hill’s specific intent. You may, but are not required to, 

conclude a person intends the natural results of his acts. 

Instruction sixteen, the subject of Hill’s objection, instructed the jury on the aidingand-abetting theory. 

All persons involved in the commission of a crime, whether they 

directly commit the crime or knowingly “aid and abet” its commission, 

shall be treated in the same way.

“Aid and abet” means to knowingly approve and agree to the 

commission of a crime, either by active participation in it or by 
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knowingly advising or encouraging the act in some way before or 

when it is committed. Conduct following the crime may be 

considered only as it may tend to prove [Hill’s] earlier participation. 

Mere nearness to, or presence at, the scene of the crime, without 

more evidence, is not “aiding and abetting.” Likewise, mere 

knowledge of the crime is not enough to prove “aiding and abetting.” 

The guilt of a person who knowingly aids and abets the 

commission of a crime must be determined only on the facts which 

show the part he has in it, and does not depend upon the degree of 

another person’s guilt[.]

If you find the State has proved Jeremy Lee Hill directly 

committed the crime, or knowingly “aided and abetted” other 

person(s) in the commission of the crime, then Jeremy Lee Hill is 

guilty of the crime charged. 

We must consider, based on the instructions given, whether a rational jury

could find Hill deprived the convenience store of money that lawfully belonged to 

the store. During closing arguments, Hill’s counsel admitted “Hill took the money” 

and “[i]t was [the convenience store]’s money.” But counsel argued Hill had no 

specific intent to steal the money. According to the instructions, jurors were 

allowed to consider whether Hill acted alone or in concert with another. The jury 

heard testimony that Hill moved his vehicle to a location that was not in view of 

security cameras but was in his personal line of sight. Testimony showed Hill was 

not accustomed to locking his vehicle but was aware of the risk of theft and was 

also aware he was not in compliance with the store’s policy regarding daily 

deposits. Hill initially told law enforcement he left the deposits in his vehicle to 

retrieve his cell phone from inside the store, but video and testimonial evidence 

revealed he had the phone on his person throughout the time in question. The jury 

was also able to view Hill’s physical reaction to seeing the hooded individual walk 

past the store and his immediate act to retrieve the deposits. Surveillance footage 

shows Hill saw the hooded individual, stood upright, paced, leaned on the counter, 
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paced again, and then reached for the deposits mere seconds later. Footage of 

the front of the store shows the hooded individual loitered at the front of the store 

and Hill turned his head to look in that direction as he passed out of one camera’s 

view while delivering the deposits to his vehicle. Based on the evidence presented 

at trial, a rational jury could have found Hill guilty of theft in the second degree, 

either directly or by the aiding-and-abetting theory. 

C. Ineffective Assistance of Counsel

Hill argues his trial counsel was ineffective in failing to object to the 

language contained in jury instruction sixteen. Hill argues the instruction should 

have contained an additional paragraph informing the jury of the appropriate level 

of intent required for conviction pursuant to an aiding-and-abetting theory. The 

State argues this court should not consider the ineffective-assistance claim, and 

urges us to preserve the claim for postconviction-relief proceedings. 

Claims of ineffective assistance of counsel are reviewed de novo. State v. 

Clay, 824 N.W.2d 488, 494 (Iowa 2012). Ineffective-assistance claims are 

ordinarily preserved for postconviction-relief proceedings but may be addressed 

on direct appeal if the record is adequate. Id. In order to succeed on an ineffectiveassistance claim, the claimant must prove “(1) counsel failed to perform an 

essential duty; and (2) prejudice resulted.” Id. at 495 (quoting State v. Maxwell, 

743 N.W.2d 185, 195 (Iowa 2008)). Both prongs of the test must be satisfied. Id.

In prior cases, this court has found a breach of duty when trial counsel failed 

to object to incomplete jury instructions similarly omitting the specific-intent 

language. Daniels v. State, No. 18-0672, 2019 WL 6894225, at *5 (Iowa Ct. App. 

Dec. 19, 2019); State v. Vinsick, No. 17-1344, 2018 WL 3472043, at *5–6 (Iowa 
9

Ct. App. July 18, 2019); State v. Burton, No. 12-2223, 2013 WL 5760635, at *5 

(Iowa Ct. App. Oct. 23, 2013). The specific-intent paragraph states:

The crime charged requires a specific intent. Therefore, before you 

can find the defendant “aided and abetted” the commission of the 

crime, the State must prove the defendant either has such specific 

intent or “aided and abetted” with the knowledge that others who 

directly committed the crime had such specific intent. If the 

defendant did not have the specific intent, or knowledge the other 

had such specific intent, [the defendant] is not guilty.

The facts of this case follow a similar line. A general specific intent instruction was 

given individually. But, the paragraph defining specific intent pursuant to the 

aiding-and-abetting theory was omitted in paragraph sixteen. Trial counsel did not 

object to the instruction for the failure to include the specific-intent paragraph. As 

our court found in the cases listed above, we believe the failure in this case 

constitutes a breach of duty. 

Turning to the prejudice prong of the test, we must ask “whether a 

reasonable probability exists that the result of the trial would have been any 

different without ineffective assistance of counsel.” Ledezma v. State, 626 N.W.2d 

134, 148 (Iowa 2001). “Jury instructions are not considered separately; they 

should be considered as a whole.” State v. Fintel, 689 N.W.2d 95, 104 (Iowa 

2004). Hill argues our analysis in State v. Burton should apply to the case at bar. 

See 2013 WL 5760635, at *4–5. In Burton, the defendant was prosecuted only on 

a theory of aiding-and-abetting willful injury causing bodily injury and was found 

guilty. Id. at *1. The aiding-and-abetting instruction lacked the specific-intent 

language. Id. In Burton, it appears there was no separate jury instruction defining 

or explaining specific intent as an element. Id. at *5. That error was compounded 

by the missing specific-intent paragraph in the aiding-and-abetting instruction. Id. 
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Thus, “the jury could convict Burton of willful injury without finding either that she 

personally possessed the specific intent to cause serious injury when she aided 

and abetted her co-defendants in the attack or that she had knowledge her codefendants had specific intent to cause serious injury.” Id. The present case 

differs from Burton in that Hill was prosecuted both as a principal and as an aider 

and abettor, and instruction fourteen defined the requisite level of intent, specific 

intent, required for the theft conviction as a principal. 

Our supreme court’s opinion in State v. Kuhse is instructive. See ___ 

N.W.2d ___, ___, 2020 WL 250542, at *1 (Iowa 2020). Kuhse discusses cases 

involving claims of ineffective assistance of counsel related to allegedly erroneous 

jury instructions. Id. at *5–6. Following the Kuhse analysis, we must “examine the 

record and consider the evidence presented, how the case was tried, and what the

jury instructions as a whole said” in order to determine whether prejudice resulted. 

Id. at *6. In Kuhse, our supreme court noted that both prosecution and defense 

counsel made justification, the omitted instruction language, a primary portion of 

closing arguments. Id. The court stated, “[t]his helped confirm for the jury that 

justification was an essential part of its deliberations and that the State had to prove 

‘the Defendant was not acting with justification.’” Id. The court also discussed the 

“strong evidence that Kuhse did not act with justification” including photos of 

injuries to both Kuhse and the target of the domestic abuse. Id. Finally, the court 

discussed testimony and physical evidence presented. Id. at *7. Ultimately, the 

court found there was no “reasonable probability of a different outcome if the 

marshalling instruction . . . had included or cross-referenced lack of justification.” 

Id. 
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In the case at bar, the jury was instructed on specific intent by instruction 

fourteen and was aware specific intent was required for conviction. The evidence 

showed Hill exited the convenience store with the money and no money was ever 

recovered. The surveillance video shown at trial proves Hill’s story about 

reentering the store to retrieve his cell phone was a fabrication; Hill was in 

possession of his cell phone during the relevant period of time. The evidence 

presented on the timing of the hooded individual’s appearance, Hill’s immediate 

reaction, the routes both people took around the building, and Hill’s cell phone use 

would lead a reasonable juror to find Hill either intended to deprive the 

convenience store of the deposits or acted in concert with another person who he 

knew had that intent. Even if the jury received instruction sixteen with the requisite 

language on specific intent it is unlikely a reasonable jury could come to the 

conclusion Hill did not possess specific intent. Our confidence in the outcome of 

the trial is not undermined. See State v. Graves, 668 N.W.2d 860, 882–83 (Iowa 

2003). Thus, no prejudice has resulted and Hill’s ineffective-assistance claim fails. 

Clay, 824 N.W.2d at 495. 

III. Conclusion

Sufficient evidence was presented at trial to support Hill’s conviction of theft 

in the second degree. It was a breach of trial counsel’s duty to fail to object when 

the specific-intent language was omitted from instruction sixteen on aiding and 

abetting. However, when considering the jury instructions provided as a whole 

and the evidence presented at trial there is no reasonable probability a different 

outcome would have resulted if the jury received the aiding-and-abetting
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instruction with the specific-intent language included. Hill suffered no prejudice. 

Thus, we affirm Hill’s conviction.

AFFIRMED.