author: LOVRIEN, Circuit Judge.

text:
    2006 SD 70
    John LORD, Plaintiff and Appellee v. HY-VEE FOOD STORES, Defendant and Appellant.
    No. 23409.
    Supreme Court of South Dakota.
    Argued Oct. 5, 2005.
    Decided Aug. 2, 2006.

      Tara L. Glasford, Canton, South Dakota, Attorney for plaintiff and appellee.
    Gary P. Thimsen and Mary A. Akker-man of Woods, Fuller, Shultz & Smith, Sioux Falls, South Dakota, Attorneys for defendant and appellant.
   LOVRIEN, Circuit Judge.

[¶ 1.] John Robert Lord (Lord) brought suit against his former employer, Hy-Vee, Inc. d/b/a Hy-Vee Food and Drug # 3 (Hy-Vee), claiming wrongful termination and intentional infliction of emotional distress. A Minnehaha County jury found for Lord on the wrongful termination claim and awarded damages in the amount of $19,576. Hy-Vee appeals claiming the trial court did not properly instruct the jury on the shifting burdens of proof inherent in Hy-Vee’s affirmative defense that Lord was discharged for lawful reasons. Hy-Vee also claims that the jury did not have sufficient evidence and did not use the proper standard in determining Lord’s damages. We affirm.

FACTS

[¶ 2.] In early 2000 Lord began working in Sioux Falls for Hy-Vee as a dairy stock person. He was terminated from that position on November 14, 2000. While it is undisputed that Lord was an at-will employee, he claimed he was wrongfully terminated because he reported to Hy-Vee that he had been sexually harassed by a female co-worker. Lord claimed that in June 2000, while he was working in the frozen freezer section in the back of the store, fellow employee Delyn Hinkle (Hin-kle) came out of the freezer and “bumped” into him and patted his “left butt cheek.” Brian Salter (Salter), a Hy-Vee supervisor, was with Lord at the time. Apparently, Lord expected Salter to take appropriate action against Hinkle. When nothing was done for two to three weeks Lord complained to store manager Brian Heinz (Heinz). Nothing more occurred at that time.

[¶ 3.] In late June or early July 2000 Lord was accused of touching a female coworker, Glenis Hawke (Hawke), in an offensive manner by “swiping his hand across her buttocks.” Lord denied the incident. Store director Paul Koll (Koll) investigated the accusation. After discussing the matter with Hawke, they decided the best solution was to reprimand Lord for the inappropriate contact rather than terminate him. Lord was also required to refrain from any further offensive contact with Hawke or other female employees.

.[¶ 4.] On November 11, 2000, Lord claimed he was approached by Hinkle. She was angry after she learned of the accusations of sexual harassment Lord had made against her relating to the June freezer incident. In fact, Hinkle claimed she had been sexually harassed by Lord.

[¶ 5.] Hinkle, Lord, Brent Anderson (Anderson), the frozen dairy manager, and Jeff Elyra (Elyra), the shift supervisor, all met to discuss the allegations. During the meeting Lord was instructed to submit to Koll a formal complaint by the following Monday concerning the June freezer incident involving Hinkle. During this meeting Hinkle and Lord both claimed they had been sexually harassed in the workplace by the other. The following Monday morning Koll called Lord to his office and fired him. However, before deciding to terminate Lord, Hy-Vee claimed that store director Koll investigated the various allegations made by both Lord and Hinkle. After examining the facts and interviewing other employees, Koll concluded that Hin-kle’s version was most likely true and Lord’s was most likely untrue. Hy-Vee maintained Lord was fired because Koll’s investigation concluded that Lord misrepresented the June freezer incident, engaged in improper conduct toward Hawke and possibly sexually harassed Hinkle.

[¶ 6.] As a result, Lord filed this action against Hy-Vee. A jury awarded him $19,576 for wrongful termination. Hy-Vee appeals that award claiming the jury was not properly instructed on the issue of retaliatory discharge. Hy-Vee also claims that the jury did not have sufficient evidence and did not use the proper standard in determining Lord’s damages.

ANALYSIS AND DECISION

ISSUE ONE

[¶ 7.] Did the trial court err in failing to instruct the jury on the shifting burdens of proof inherent in a retaliatory discharge case given Hy-Vee’s affirmative defense that Lord was discharged for lawful reasons?

[¶ 8.] Hy-Vee claims the trial court committed prejudicial error when it gave its proposed Jury Instruction No. 30 and refused to give Hy-Vee’s requested Jury Instruction No. 23. We conclude that Hy-Vee did not preserve for appeal its objection to proposed Jury Instruction No. 30. We further conclude that requested Jury Instruction No. 23 is not a correct statement of the law and was properly refused by the trial court.

[¶ 9.] This Court’s standard of review concerning jury instructions is well settled. Behrens v. Wedmore, 2005 SD 79, ¶ 37, 698 N.W.2d 555, 570(citing First Premier Bank v. Kolcraft Enterprises, Inc., 2004 SD 92, ¶ 40, 686 N.W.2d 480, 448). We construe jury instructions “as a whole to learn if they provide a full and correct statement of the law.” Id.; Von Sternberg v. Caffee, 2005 SD 14, ¶ 6, 692 N.W.2d 549, 552; Kappenman v. Stroh, 2005 SD 96, ¶ 14, 704 N.W.2d 36, 40. “The party alleging error on appeal must show error affirmatively by the record, and not only must the error be demonstrated, but it must also be shown to be prejudicial error.” Tovsland v. Reub, 2004 SD 93, ¶ 15, 686 N.W.2d 392, 398; Morrison v. Mineral Palace Ltd. Partnership, 1998 SD 33, ¶ 10, 576 N.W.2d 869, 872 (“Mere assertions of what a jury may have concluded are insufficient to show prejudice”). However, we have also held that a trial court’s failure to give a requested instruction that correctly sets forth the law, in the absence of another instruction which sufficiently does the same, is prejudicial error. Bauman v. Auch, 539 N.W.2d 320, 323 (S.D.1995).

[¶ 10.]Hy-Vee’s claim of prejudicial error is premised on the court’s proposed Jury Instruction No. 30 and Hy-Vee’s requested Jury Instruction No. 23, which the trial court rejected. Requested Jury Instruction No. 23 provided:

John Robert Lord was an at-will employee of Hy-Vee. This means his employment could have been terminated at any time and for any reason or for no reason by either Lord or Hy-Vee. Notwithstanding the fact that Lord was an at-will employee, Hy-Vee could not terminate Lord’s employment solely because he allegedly made complaints about sexual harassment.
If you find that Lord has established by a preponderance of the evidence that this employment was terminated solely because he complained about sexual harassment, the burden shifts to Hy-Vee to prove the termination occurred for reasons other than those alleged by Lord.
If you find Lord was terminated for reasons other than his alleged complaints of sexual harassment, you must find in favor of Hy-Vee on the wrongful discharge claim.

Instead of giving Hy-Vee’s requested instruction, the trial court gave Jury Instruction No. 30:

John Robert Lord was an at-will employee of Hy-Vee. Hy-Vee could terminate his employment at any time for any reason except retaliation for making complaints about sexual harassment. If you find that Lord proved that Hy-Vee terminated his employment because he complained about sexual harassment, he may recover damages from the defendant.

[¶ 11.] On appeal, Hy-Vee argues that the trial court erred because the instructions given did not inform the jury of Hy-Vee’s defense (nonretaliatory reasons for discharge). Hy-Vee points out that only Jury Instruction No. 23 mentioned that the burden shifted to Hy-Vee to articulate a legitimate reason for the termination. In Hy-Vee’s view, only its requested Jury Instruction No. 23 properly informed the jury that Lord could be terminated if he was fired for reasons other than making the complaint of sexual harassment.

A. Waiver

[¶ 12.] SDCL 15 — 6—51(a) (Rule 51(a)) provides that: “[n]o party may claim error for the giving or failure to give an instruction unless that party objects stating distinctly the matter objected to and the grounds for the objection.” Here, Hy-Vee failed to make any objection to the trial court’s Jury Instruction No. 30, which Hy-Vee now claims was inadequate.

[¶ 13.] Hy-Vee argues in its brief that it “objected to the trial court’s refusal to instruct the jury on [its] affirmative defense;” ie., the giving of Jury Instruction No. 30 instead of requested Jury Instruction No. 23. In support of that assertion Hy-Vee cites volume two of the trial transcript, page forty-nine. However, the objection found there was insufficient to preserve error in this instance because, at that point, defense counsel was only arguing the motion for a directed verdict. Moreover, during that discussion counsel only mentioned the jury instructions as they regarded another theory of recovery involving intentional infliction of emotional distress. There was no reference to the instructions related to the retaliatory discharge claim now in issue. Thus, the cited reference does not preserve the jury instruction issue for appeal. The exact discussion bears repeating:

Both parties having rested and by stipulation of counsel and consent of the court, I make the following motions at this time and also the same as though they had been made at the close of the plaintiffs case. And I move for a directed verdict on behalf of the defendant. First, I’d like to address what you just said, Judge. There is absolutely no evidence whatsoever of intentional infliction of emotional distress. The court, I think, correctly identifies the legal elements of that claim in its instruction 27 here, and the Supreme Court has outlined it in numerous cases, Dahl, D-a-h-1, v. Sittner, S-i-t-t-n-e-r,; Tibke, T-i-b-k-e, v. McDougall. And the court has said, and you’ve got in your instruction here, it has to be conduct exceeding all bounds of decency usually tolerated in a civilized society, not mere insults, indignities, et cetera. The most — if you view all of the evidence in this case in the light most favorable to Mr. Lord — which of course you have to do in considering this motion — is that they disbelieved his complaints about Delyn Hinkle and fired him. That doesn’t even approach the legal standard. So I’m going to object to any instructions in that regard and I move that the court direct a verdict against the plaintiff on that claim for intentional infliction of emotional distress.
The second thing is the claim of retaliation. He has to prove under the law that the reason for his discharge was in retaliation for his having filed that claim. Our affirmative defense is that we had a legitimate nondiseriminatiory reason for having terminated him and that that— and then he has to show that that articulated reason is a sham or a pretext. We have articulated a nondiscriminatory reason, ie, he sexually harassed and molested one Glenis Hawke and fabricated a story about another female employee, Delyn Hinkle. He has offered no evidence whatsoever to show that those reasons are a sham or pretextual; therefore, we prevail as a matter of law.
So I ask the court to direct a verdict on the retaliatory and the intentional infliction claims.

This argument was insufficient to preserve any objection to Jury Instruction No. 30 relating to retaliatory discharge.

[¶ 14.] After the trial court heard the foregoing argument, it denied the motion for directed verdict on the retaliatory discharge claim, and it then began settlement of the jury instructions. At this point, Lord’s attorney, rather than Hy-Vee’s counsel, brought up the shifting burden analysis stating: “Your Honor, if I may also say there — I probably should go through this. It is my opinion we might need an instruction on what [Hy-Vee’s counsel] has stated about the affirmative defense and then the pretextual.” The trial court rejected Lord’s counsel’s suggestion stating:

We’re not going to do anything. All that does is just — I disagree with the federal instructions on that, because you don’t need it. Either he was fired for retaliation or he wasn’t, and this pretext and all that kind of stuff I think is flat unnecessary.

[¶ 15.] Soon thereafter, Hy-Vee’s counsel was asked if he had any objections to the court’s instructions. Although Hy-Vee’s counsel made a few objections, they all related to the intentional infliction of emotional distress claim. Hy-Vee’s counsel stated:

Yes. I’ll be very brief. We discussed it off the record. In accord with my motion for directed verdict, I’m going to object to any instructions or reference in the instructions or verdict form to intentional infliction of emotional distress or damages for that count. Specifically, I see the phrase. So I’m objecting to that part of the instruction 22 that refers to intentional infliction of emotional distress and instructions 26, and 27, 28, 29 and object to the verdict form insofar as it refers to severe emotional distress, intentional infliction or damages to that.
* * *
We’ll object to the court’s failure to give our proposed or requested jury instruction number 18.

However, Hy-Vee’s counsel never objected to Jury Instruction No. 30. When the trial court specifically asked for any other objections, none were given. Thereafter, the trial court overruled all requested instructions stating: “All instructions not given are refused. Instructions are settled.”

[¶ 16.] Therefore, it is clear from the record that Hy-Vee never objected to the trial court’s proposed Jury Instruction No. 30. As a result, the only error that may have been preserved for appeal was the trial court’s refusal to give requested Jury Instruction No. 23.

B. It was unnecessary to instruct the jury on Hy-Vee’s “affirmative defense” and the burden shifting analysis.

[¶ 17.] Hy-Vee’s requested Jury Instruction No. 23 attempted to incorporate the McDonnell Douglas Corp. v. Green burden shifting analysis. 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). At the outset, however, it must be noted that this instruction is an incorrect statement of the law. Therefore, it did not preserve the burden shifting issue for appeal.

[¶ 18.] Comparing requested Jury Instruction No. 23 to the McDonnell Douglas burden shifting analysis reveals that the trial court properly rejected the instruction as an incorrect statement of law. Under the correct McDonnell Douglas burden shifting analysis, a plaintiff must first establish a “prima facie case by the preponderance of the evidence.” Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 252-253, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981). To establish a prima facie case of retaliatory discharge, a plaintiff must prove “(1) he engaged in Title VII protected activity (reported sexual harassment); (2) he subsequently suffered adverse employment action; and (3) [there was] a causal link between engaging in protected activity and the adverse employment action.” Leslie v. Hy-Vee Foods, Inc., 2004 SD 59, ¶ 11, 679 N.WÜd 785, 789.

[¶ 19.] If the plaintiff establishes a prima facie case, the burden shifts to the defendant to articulate some legitimate, nonretaliatory reason for the employment action. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. The defendant’s burden at this stage, however, is only a burden of production, not persuasion. Burdine, 450 U.S. at 259-60, 101 S.Ct. 1089. If the defendant produces a legitimate, nonretaliatory reason, the burden shifts back to the plaintiff to prove by a preponderance of the evidence that the stated reason is merely a pretext for retaliation. Id. at 252-53, 101 S.Ct. 1089; see also Leslie, 2004 SD 59, ¶ 11, 679 N.W.2d at 789; Johnson v. Kreiser’s, Inc., 433 N.W.2d 225, 227-28 (S.D.1988) (utilizing the burden shifting analysis).

[¶ 20.] Here, requested Jury Instruction No. 23 required Lord to establish a prima facie case that his termination was “solely” caused by retaliation for filing the sexual harassment complaint. This is an incorrect statement of the law. As we noted in Leslie, a plaintiff need only establish a “causal link between engaging in protected activity and the adverse employment action.” 2004 SD 59, ¶ 11, 679 N.W.2d at 789. In defining that causal link courts have not required a claimant to prove that the protected activity was the sole cause of the adverse employment action. Instead, they require a plaintiff to show that the sexual harassment complaint was “merely a contributing factor” in the decision to terminate his employment. Wiehoff v. GTE Directories Corp., 61 F.3d 588, 598 (8th Cir.1995) (specifically stating that the plaintiff is not required to “show that the retaliatory motive was the sole reason for the employment action, but ‘merely a contributing factor’ ”). Thus, there can be no preserved error because Hy-Vee’s requested Instruction No. 23 was an incorrect statement of law.

[¶ 21.] More fundamentally, however, Jury Instruction No. 23 should not have been given because most jurisdictions have concluded, for a variety of reasons, that a jury instruction setting forth the McDonnell Douglas burden shifting analysis is unnecessary. Those courts reason that the terminology associated

with the McDonnell Douglas analysis, in-eluding “prima facie case,” “preponderance of the evidence,” “burden of production,” and “pretext,” “create a distinct risk of confusing the jury.” Dudley, 166 F.3d at 1322; see also Lipchitz v. Raytheon Co., 434 Mass. 493, 508, 751 N.E.2d 360, 373 (2001).

[T]he distinction between burden of persuasion and burden of production is not familiar to jurors, and they may easily be misled by hearing the word ‘burden’ (though referring to a burden of production) used with reference to a defendant in an explanation of that part of the charge that concerns a plaintiffs burden of persuasion.

Dudley, 166 F.3d at 1322. We conclude that there is a significant risk that the jury may be confused and misled by the use of these legal concepts in a McDonnell Douglas burden shifting instruction.

[¶ 22.] Instead of instructing the jury regarding the burden shifting analysis, the -United States Supreme Court and the Eighth Circuit Court of Appeals have indicated that the McDonnell Douglas analysis “is merely an analytical tool that ‘serves to bring the litigants and the court expeditiously and fairly’ ” to the ultimate question, which “in any retaliation case is whether the employer’s adverse action against the employee was motivated by retaliatory intent.” Wallace v. DTG Operations, Inc., 442 F.3d 1112, 1119 (8th Cir.2006) (quoting Burdine, 450 U.S. at 253, 101 S.Ct. 1089). The McDonnell Douglas “ ‘analytical framework’ was established in the context of summary judgment ‘to give judges a method of organizing evidence and assigning the burdens of production and persuasion in [a] discrimination case.’ ” Lipchitz, 434 Mass, at 508, 751 N.E.2d at 372-73 (quoting Loeb, 600 F.2d at 1016). Thus, the analysis would only be applicable in a summary judgment or directed verdict situation for the trial court to utilize to determine if the issue should be given to the jury. Kanida v. Gulf Coast Medical Personnel LP, 363 F.3d 568, 575 (5th Cir.2004) (“The McDonnell Douglas formula ... is applicable only in a directed verdict or summary judgment situation.”)(quoting Powell v. Rockwell Int’l Corp., 788 F.2d 279, 285 (5th Cir.1986)). But, the analysis “is not the proper vehicle for evaluating a case that has been fully tried on the merits.” Id. In other words, “the analysis ‘was not written as a prospective jury charge,’ and is ill-suited to the task.” Lipchitz, 434 Mass. at 508, 751 N.E.2d at 372-73; see also Grebin v. Sioux Falls Indep. Sch. Dist. No. 49-5, 779 F.2d 18, 20 (8th Cir.1985); abrogated on other grounds by Foster v. Univ. of Arkansas, 938 F.2d 111 (8th Cir.1991) (“McDonnell-Douglas was not a jury case and its ritual is not well suited as a detailed instruction to the jury”).

[¶ 23.] The United States Supreme Court and Eighth Circuit Court of Appeals also explained that the McDonnell Douglas burden shifting analysis and presumption disappears when the case is submitted to the jury: “at [the] final stage of the burden shifting analysis, the plaintiffs burden ‘merges with the ultimate burden of persuading the jury that [the plaintiff] has been the victim of intentional [retaliation].’ ” Wallace, 442 F.3d at 1120 (quoting Burdine, 450 U.S. at 256, 101 S.Ct. 1089). This merging burden analysis appears to have been the basis for the trial court’s decision in this case. The merging burden theory is also required under state law. See SDCL 19-11-1 (Rule 301). That rule of evidence provides that when a presumption (the presumption of retaliation established by Lord’s prima facie case) requires the opposing party to produce evidence to rebut, and the rebutting party produces substantial, credible evidence making the presumption disappear, the jury shall not be instructed on the presumptions. Thus, under the McDonnell Douglas framework, the presumption of retaliation that arises once the plaintiff establishes a prima facie case disappears when the defendant satisfies its burden of articulating a legitimate, nonretaliatory reason for the employment action. At this point, “the McDonnell Douglas framework — with its presumptions and burdens — is no longer relevant.” St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 510, 113 S.Ct. 2742, 2749, 125 L.Ed.2d 407 (1993). The only question that the jury needs to be instructed on is the ultimate question of whether the plaintiff was terminated in retaliation for filing a complaint. See Walther, 952 F.2d at 127.

[¶ 24.] For these reasons, we conclude that the trial court was correct in instructing the jury (Jury Instruction No. 30) that Lord had the burden of proving “that Hy-Vee terminated his employment because he complained about sexual harassment.” The presumption of retaliation had disappeared following the submission of conflicting evidence on this point, and therefore, this instruction correctly required Lord to prove a retaliatory motive for the termination. The trial court correctly rejected requested Jury Instruction No. 23 because it was an incorrect statement of the law and because a jury should not be instructed to conduct a burden shifting analysis in reaching its verdict.

ISSUE TWO

[¶ 25.] Did the jury use the proper standard, supported by sufficient evidence, in determining Lord’s damages?

[¶ 26.] Hy-Vee preserved this issue for appeal by making a motion for directed verdict, judgment notwithstanding the verdict and new trial. We review the trial court’s ruling on these motions by the abuse of discretion standard. Gilkyson v. Wheelchair Express, Inc., 1998 SD 45, ¶ 7, 579 N.W.2d 1, 3 (citing Bland v. Davison County, 1997 SD 92, ¶26, 566 N.W.2d 452, 460 (additional citations omitted)).

[¶27.] Hy-Vee argues that there was insufficient evidence presented at trial on the issue of damages and that the jury used an improper standard in making its determination. Specifically, Hy-Vee argues that the jury award was incorrectly determined because: (1) Lord was fired from his subsequent employer, Wal-Mart, for sexual harassment; and (2) there was no rational basis for the jury’s determination of damages.

[¶ 28.] Following his employment at Hy-Vee, Lord was employed at Wal-Mart from November 2000 until March 2001. At trial, Hy-Vee repeatedly questioned Lord as to the reason why his employment was terminated. Hy-Vee’s contention was that Lord was released from employment at Wal-Mart for sexual harassment. Lord’s testimony was that he had “suffered a hernia.” Lord further testified that there was a misunderstanding related to his employment. Lord also claimed that he had come to the aid of a female customer who was being harassed by a former Wal-Mart employee, that he was accused of sexual harassment for this incident and this was partially the reason why he was fired.

[¶ 29.] In the alternative, Hy-Vee argues that any award of damages should be limited to compensate Lord for his term of unemployment following termination at Hy-Vee. Under this rationale, Lord would be compensated $720 for the two week time period in November 2000; following his termination at Hy-Vee, up until he found employment at Wal-Mart.

[¶ 30.] During final argument to the jury, Lord’s counsel offered the jury a formula by which it could determine damages in Lord’s favor. Based on this formula, Lord’s counsel asked for damages in the amount of $19,576. The formula was calculated as such: If Lord’s hourly rate at a subsequent job was less than at Hy-Vee, Lord asked for the difference. If Lord’s hourly rate at a subsequent job was equal to or more than at Hy-Vee, he asked for nothing. If Lord was unemployed for any time period after his employment at Hy-Vee, he asked for his hourly rate while at Hy-Vee.

[¶ 31.] An award of damages is a factual issue to be determined by the jury. Roth v. Farner-Bocken Co., 2003 SD 80, ¶ 26, 667 N.W.2d 651, 662. Damages must be reasonable and must be proved with reasonable certainty. Id.; Kephart v. Backhaus, 312 N.W.2d 473, 474 (S.D.1981). Proof of damages requires a reasonable relationship between the method used to calculate damages and the amount claimed. See Swenson v. Chevron Chem. Co., 89 S.D. 497, 234 N.W.2d 38, 43 (1975). Inclusively, “[i]n applying this rule, we refrain from dictating any specific formula for calculating damages. Instead, we apply a ‘simple reasonable certainty test concerning the proof needed to establish a right to recover damages.’ ” McKie v. Huntley, 2000 SD 160, ¶ 18, 620 N.W.2d 599, 603 (quoting Drier v. Perfection, Inc., 259 N.W.2d 496, 506 (S.D.1977)). The reasonable certainty standard requires there to be proof of a rational basis for measuring loss, without allowing a jury to speculate. Id. (quoting Kressly v. Theberge, 79 S.D. 386, 112 N.W.2d 232, 233 (1961)).

[¶ 32.] The trial court directly addressed the question of speculative damages in Jury Instructions No. 4 and No. 5:

4. Any damages awarded must be fair and reasonable under the circumstances. You must not base your verdict on speculation, guesswork or conjecture. An employee who was damaged as a result of termination of his employment has a duty to take steps to minimize the loss by making a reasonable effort to find comparable employment. I have given you different measures of damages for the various theories alleged by plaintiff. These measures of damages overlap. You must not award damages to plaintiff for the same injury more than one time. If you award damages for an alleged injury or loss under one theory, do not award damages for that injury or loss under another theory, (emphasis added).
5. Damages for retaliation are the amount of agreed compensation for a reasonable period that plaintiff would have received but for the wrongful discharge. You must deduct any compensation actually earned or that with reasonable efforts could have been earned, by the plaintiff during the reasonable period referred to in the first sentence of this paragraph.

This Court has noted that the difficulty in computing damages should not be confused with the requirement of proving damages as an essential element for recovery. McKie, 2000 SD 160, ¶20, 620 N.W.2d at 604 (quoting Seattle Western Indus., Inc. v. David A. Mowat Co., 110 Wash.2d 1, 750 P.2d 245, 249 (1988)). After providing sufficient evidence of damages, the claimant must only produce the best evidence available to allow a jury a reasonable basis for calculating the loss. Id.

[¶ 33.] The jury was the trier of fact. Evidence and testimony were offered for the jury’s consideration concerning Lord’s employment at Wal-Mart. Based on this evidence, the jury determined Lord’s testimony to be credible. The jury obviously determined that the facts did not support Hy-Vee’s contention that he was fired from Wal-Mart for sexual harassment.

[¶ 34.] In addition, Lord presented a reasonable method for the jury to determine damages and a rational basis for the jury to determine the amount of the award. Given the fact that the amount proposed by Lord and the amount awarded by the jury were the same, it is reasonable to conclude that the jury calculated damages in the manner proposed by Lord. The evidence in the record is sufficient to establish a rational basis for the jury to determine and measure Lord’s damages. Accordingly, the trial court did not abuse its discretion by denying Hy-Vee’s motion for directed verdict, judgment notwithstanding the verdict and new trial on the issue of damages.

APPELLATE ATTORNEY FEES

[¶ 35.] Lord has submitted a motion for appellate attorney fees in the amount of $1,908. The motion is accompanied by an itemized and verified statement of the costs incurred pursuant to SDCL 15-26A-87.3. An award of appellate attorney fees is permissible if the attorney fees are otherwise allowable and if they are accompanied by a verified, itemized statement of the legal services rendered. Id; Schaefer ex rel. S.S. v. Liechti, 2006 SD 19, ¶ 20, 711 N.W.2d 257, 264; Stratmeyer v. Engberg, 2002 SD 91, ¶29, 649 N.W.2d 921, 928. “We have interpreted this to mean that appellate attorney fees may be granted ‘only where such fees are permissible at the trial level.’ ” Grynberg Exploration Corp. v. Puckett, 2004 SD 77, ¶ 33, 682 N.W.2d 317, 324 (quoting Hentz v. City of Spearfish, Dept. of Pub. Works, Office of Planning & Zoning, 2002 SD 74, ¶ 13, 648 N.W.2d 338, 342). Attorney fees can only be awarded at the trial level if provided by contract or if authorized by statute. Matter of Estate of O’Keefe, 1998 SD 92, ¶ 17, 583 N.W.2d 138, 142. Lord fails to cite any authority to support his claim that the court can award attorney fees in this matter. Accordingly, Lord’s motion is denied.

[¶ 36.] The judgment of the trial court is affirmed.

[¶ 37.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER and MEIERHENRY, Justices, concur.

[¶ 38.] LOVRIEN, Circuit Judge for SABERS, Justice, disqualified.

      . The jury found for Hy-Vee on the claim of intentional infliction of emotional distress.

      . We note that under our rules the trial court "proposes” instructions and a party "requests” instructions. SDCL 15 — 6—51 (b).

      . This rule has been amended effective July 1, 2006.

      . As is explained herein, the trial judge was correct in his analysis.

      . We note the inconsistency of the phrases “prima facie case” and “preponderance of the evidence” appearing in the same burden of proof. However, this is the United States Supreme Court's language. Interestingly, it is only used by the federal courts in discussing summary judgment; i.e., presumptions that arise from establishing a prima facie case of retaliation. Even the federal courts that have attempted to instruct a jury on the McDonnell Douglas analysis do not instruct on prima facie case.

      . In Sanghvi v. City of Claremont, 328 F.3d 532 (9th Cir.2003), the Ninth Circuit Court of Appeals concluded that it was error to instruct the jury on the technical elements of the McDonnell Douglas burden shifting analysis because such an instruction had "significant potential to confuse juries,” was "designed to allocate burdens and promote the orderly presentation of evidence,” and "evades the ultimate question of discrimination,” which should be the focus of the fact finders. Id. at 541-42. In reaching its conclusion, the Ninth Circuit Court of Appeals surveyed the cases on this subject:
      Some decisions criticize any use of the McDonnell Douglas formulation in instructing the jury, emphasizing that the only question that should go to the jury is the ultimate question of discrimination; other circuits condemn the use of legalistic language and the complexities of burden shifting without rejecting the McDonnell Douglas framework outright. See Cabrera v. Jakabovitz, 24 F.3d 372, 380-82 (2nd Cir.1994) (holding that, although a jury instruction that included the phrase "prima facie case” and referred to "defendant’s 'burden' of produc[tion]” "created a distinct risk of confusing the jury,” in certain instances it would be appropriate to instruct the jury on the elements of a prima facie case); Watson v. Southeastern Pa. Transp. Auth., 207 F.3d 207, 221-222 (3rd Cir.2000) (holding that, although it is proper "to instruct the jury that it may consider whether the factual predicates necessary to establish the prima facie case have been shown," it is error to instruct the jury on the McDonnell Douglas burden shifting scheme), cert. denied, 531 U.S. 1147, 121 S.Ct. 1086, 148 L.Ed.2d 961 (2001); Mullen v. Princess Anne Vol. Fire Co., 853 F.2d 1130, 1137 (4th Cir.1988) (noting that the "shifting burdens of production of Burdine ... are beyond the function and expertise of the jury” and are "overly complex”); Walther v. Lone Star Gas Co., 952 F.2d 119, 127 (5th Cir.1992) ("Instructing the jury on the elements of a prima facie case, presumptions, and the shifting burden of proof is unnecessary and confusing. Instead, the court should instruct the jury to consider the ultimate question of whether defendant terminated plaintiff because of his age”); Ryther v. KARE 11, 108 F.3d 832, 849-50 (8th Cir.1997) (en banc) (Loken, J., in Part II.A. of the dissent, which a majority of the court joined) (holding that “the jury need only decide the ultimate issue of intentional discrimination,” and usually need not make findings on the prima facie case or whether the defendant's explanation is pre-textual); Dudley v. Wal-Mart Stores, Inc., 166 F.3d 1317, 1322 (11th Cir.1999) (“We stress that it is unnecessary and inappropriate to instruct the jury on the McDonnell Douglas analysis”).

        Id. at 539-40. In a footnote, the court continued and summarized other cases from the First, Seventh, and Tenth Circuits:
      The First, Seventh, and Tenth Circuits also appear to disapprove of the wholesale adoption of the McDonnell Douglas formulation in jury instructions. See Loeb v. Textron, Inc., 600 F.2d 1003, 1016-18 (1st Cir.1979) (explaining that, while the phrase "prima facie case” and other "legal jargon” need not be read to the jury, whether jury instructions should include "the four elements of the McDonnell Douglas-type prima facie case (properly tailored to the circumstances) and that the employer's reason is a pre-text” will depend upon the evidence presented); disapproved of on other grounds by Trans World Airlines, Inc. v. Thurston, 469 U.S. Ill, 126 n. 19, 105 S.Ct. 613, 624, 83 L.Ed.2d 523 (1985); Gehring v. Case Corp., 43 F.3d 340, 343 (7th Cir.1994) (“Once the judge finds that the plaintiff has made the minimum necessary demonstration (the 'prima facie case’) and that the defendant has produced an age-neutral explanation, the burden-shifting apparatus has served its purpose, and the only remaining question-the only question the jury need answer-is whether the plaintiff is a victim of intentional discrimination”); Messina v. Kroblin Transp. Sys., Inc., 903 F.2d 1306, 1308 (10th Cir.1990) ("The McDonnell Douglas inferences ... are of little relevance to the juiy.”); but see Rowlett v. Anheuser-Busch, Inc., 832 F.2d 194, 200 (1st Cir.l987)("[T]he district court was correct in using the [McDonnell Douglas ] framework in the instructions to the jury” because “[i]t is a straightforward way of explaining how to consider whether there is intentional discrimination”); abrogated on other grounds by Iacobucci v. Boulter, 193 F.3d 14, 27 (1st Cir.1999); Lynch v. Belden & Co., Inc., 882 F.2d 262, 269 (7th Cir.1989)("[I]t was proper for the district court to instruct the jury as to the McDonnell Douglas/Burdine formula for evaluating indirect evidence.... [Such an instruction] accurately informed the jury of the parties’ burdens ...” (footnote omitted)); Faulkner v. Super Valu Stores, Inc., 3 F.3d 1419, 1425 & n. 3 (10th Cirl993) (holding that there was no error in a jury instruction that incorporated the entire McDonnell Douglas formulation because it set forth the proper allocation of proof and directed the jury that age must be the determinative factor in the failure to hire).

        Id. at 540 n. 6.

      . For example, requested Jury Instruction No. 23 states that if Lord established by a "preponderance of the evidence" that his employment was terminated solely because of his sexual harassment complaint, "the burden shifts to Hy-Vee to prove" that Lord was terminated for nonretaliatory reasons. Under this instruction, there is a great risk that the jury would assume that Hy-Vee had the burden of proving a nonretaliatory reason for termination by a "preponderance of the evidence” (a burden of persuasion), rather than merely having a “burden of production.”

      . SDCL 19-11-1 provides:
      In all civil actions and proceedings, unless otherwise provided for by statute or by chapters 19-9 to 19-18, inclusive, a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast. When substantial, credible evidence has been introduced to rebut the presumption, it shall disappear from the action or proceeding, and the jury shall not be instructed thereon.


source: Caselaw Access Project

author: WIGGINS, Justice.

license: Public Domain

text:
    STATE of Iowa, Appellee, v. Jeffrey Michael NITCHER, Appellant.
    No. 05-0198.
    Supreme Court of Iowa.
    Aug. 11, 2006.

      Linda Del Gallo, State Appellant Defender, and Theresa R. Wilson, Assistant State Appellant Defender, for appellant.
    Thomas J. Miller, Attorney General, Kristin Guddall, Assistant Attorney General, and Paul L. Martin, County Attorney, for appellee.
   WIGGINS, Justice.

A jury found Jeffrey Nitcher guilty of aiding and abetting or conspiring to manufacture a controlled substance, possession of products with the intent to manufacture a controlled substance, and failure to affix a controlled substance tax stamp. On appeal, he claims his trial counsel was ineffective for failing to challenge a warrant-less search of a residence where he was an overnight guest. Our review of the record indicates that his trial counsel was not ineffective because the officers conducted the warrantless search with probable cause and exigent circumstances. Nitcher also complains there was not sufficient evidence to support his convictions. Again, our review of the record indicates sufficient evidence supported Nitcher’s conviction on all three charges. We therefore affirm his convictions and sentences. .

Nitcher further asserts the district court used the sufficieney-of-the-evidence standard rather than the weight-of-the-evidence standard when it overruled Nitcher’s motion for new trial. Because the district court did use an incorrect standard, we reverse the district court’s ruling denying Nitcher’s motion for new trial and remand the case to the district court to rule on his motion for new trial under the correct weight-of-the-evidence standard.

I. Background Facts and Proceedings.

During the early morning hours of December 30, 2003, Cerro Gordo County deputy sheriff Ryan Carroll was patrolling an area known as Winnebago Heights when he detected the odor of ether in the air. He drove around the area, parked his car, and walked until he was able to determine that the odor was coming from a specific residence. Before entering the property, Carroll called his lieutenant, George Foun-tas, for assistance.

When Fountas arrived, he and Carroll approached the house and knocked on the east door. A person eventually came to the door, but did not open it. A male voice from within the residence asked who was there. Fountas informed the person they were from the sheriffs office. The officers then heard the person shuffle away from the door and heard noises that sounded like the person was running toward the garage. Fountas stayed at the door while Carroll walked around the garage toward the north and west side of- the residence in case someone attempted to leave. Carroll also called for backup. At some point, the officers called the fire department due to the potential fire hazard.

As Carroll walked toward the garage, he began -to detect a very strong odor of anhydrous ammonia. He also smelled a moderately strong odor of ether as he walked toward the north side of the building. When he arrived at the northwest corner of the residence, he noticed the west side of the building had several windows and a doorway that were boarded up. While standing in the northwest corner, Carroll continued to hear the shuffling of a person or persons in the garage.

After the backup officers arrived on the scene, Carroll and Fountas returned to the east door of the residence and knocked on the door again. Lloyd Pierce eventually opened the door. Pierce was wearing sleeping attire. The officers told Pierce they were at his door because of the chemical odors. Pierce told the officers he was the owner of the residence, he had been sleeping, and he was not aware of any chemical odors. Carroll observed that Pierce appeared to be very anxious. Fountas asked Pierce for consent to search the residence, which he gave and then withdrew. The officers led Pierce out of the residence.

Concerned for the safety of any other person inside the residence, the officers asked Pierce if there were others in the residence. Pierce told them his wife and children were inside. Because the officers felt the odor of ether in the entryway made it too dangerous to enter the residence, Carroll left the premises to retrieve air-purifying respirators so that they could enter the residence and look for anyone else inside. Fountas then yelled inside the residence for anybody there to come out and three individuals did so. The officers took Susan Payne, Larry Hull, and Nitcher into protective custody and placed them inside the entryway of the residence.

When Carroll returned with the respirators, he and Fountas put their respirators on and entered the residence. They testified their purpose for entering the residence was to look for other people inside. They only looked in spaces big enough for a person to be in. When the officers opened the door to the garage, they immediately noticed a white cloud or haze and an odor of ether strong enough to overpower their respirators. They backed out of the garage for safety reasons and went outside the residence. They did not find any other persons in the residence.

An officer placed the four individuals in his patrol car and transported them to the station. While transporting these individuals to the station, the officer noticed a smell of ether and anhydrous ammonia in the vehicle. Before being processed at the station, the fire department decontaminated these four individuals.

While other officers secured the residence, Carroll and Cerro Gordo County chief deputy sheriff David Hepperly obtained a search warrant for the premises. Pursuant to the warrant, Carroll, Fountas, and other officers searched the exterior of the residence and property. Hepperly and Mason City police investigator David Tyler, who were state-certified for the investigation of methamphetamine labs, searched the interior of the residence wearing self-contained breathing apparatuses and fireproof suits. They entered the garage and opened the doors to ventilate the area. Eventually the other officers entered the house to participate in the search of the residence.

During the search of the garage area, officers found two glass pie plates containing red or pink and off-white powdery substances, a plastic container with an off-white powdery substance, and a white cloth shut under the lid of the container in the same area. The substance in the plastic container appeared moist. The room in which the officers found these items was separated from an attached shed to the garage by a sliding glass door that had been closed with a screw in the doorjamb. The room contained the odor of ether. Additionally, the officers observed moist off-white and pink or red substances between cracks in the floorboards and on the doorsill to the room. The officers found other items as well, including a foam plate with pink and white substances, a coffee filter with residue, a plastic pitcher with red residue, and plastic tubing with residue. The officers found no tax stamps for the substances in the plastic container or in the floorboards, which were later determined to contain methamphetamine.

In Pierce’s bedroom, the officers found a bottle of Heet and a nearly empty one-gallon container of acetone, common ingredients in the manufacture of methamphetamine. In another bedroom, officers found a pair of blue jeans, a sweatshirt, and coffee filters. The clothes smelled of ether and a pocket in the jeans contained an identification card issued to Nitcher. Nitcher had been staying at the residence for a few days because he had an argument with his girlfriend. The officers also found muriatic acid in a washroom.

Some of the items found outside the residence included a small propane tank with an altered fitting and a severed garden hose. This setup would allow a person to draw the anhydrous ammonia that was in the tank to another container using the hose. There was also a burn pile, which contained rusted burnt cans of what the officers believed to be starting fluid and camp fuel. The starting fluid cans had holes punched in them in order to depressurize the ether.

The officers sent several of the items seized during the search to the division of criminal investigation lab for testing. The analysis revealed all the items contained pseudoephedrine, most contained methamphetamine and CMP (a by-product created by the metal-ammonia reduction method of methamphetamine manufacture, the metal here likely being lithium), some contained lithium salt, and one contained triprolidine. The substance found in the plastic container weighed 10.57 grams and contained methamphetamine, pseudoephedrine, and CMP. The substance found on one glass pie plate contained pseudoephedrine and the substance found on the other glass pie plate contained pseudoephedrine and triprolidine.

The items tested , were consistent with the various steps of the lithium-ammonia reduction method of methamphetamine manufacture. The residue on the pie plates was consistent with the preparation of the precursor; the substances found on the foam plate were consistent with solid waste from the solvent phase; the residue on the plastic tubing was consistent with the bubbling process; and the white cloth in the plastic container as well as the residue on the plastic pitcher were consistent with the filtering stage. Additionally, the acetone was consistent with the process used to whiten the final product. The lab found Hull’s fingerprint on both pie plates and Nitcher’s fingerprint on one pie plate. The lab found no fingerprints on the plastic container. The analysts were unable to determine when the substances were generated or when the prints were left on the objects.

The State charged Hull, Nitcher, Payne, and Pierce with: (1) conspiracy to manufacture a schedule II controlled substance in violation of Iowa Code sections 124.401(1) and 124.401(1)(6) (2003), a class “B” felony;- (2) possession of products with the intent to manufacture a controlled substance in violation of Iowa Code section 124.401(4), a class “D” felony; and (3) failure to affix a controlled substance tax stamp in violation of Iowa Code sections 453B.l(3)(a) and 453B.12, a class “D” felony. Nitcher entered a plea of not guilty.

Nitcher filed a motion to suppress the evidence seized by the officers claiming the issuance of the search warrant lacked probable cause and failed to identify the places searched by the officers. The court overruled the motion. Nitcher filed a renewed motion to suppress the evidence seized by the officers pursuant to the warrant, claiming the basis for the renewed motion did not become evident until he took the depositions of the State’s witnesses. The court denied the renewed motion.

Nitcher and Hull proceeded to a joint jury trial. Both defendants moved for directed verdicts of acquittal at the close of the State’s case regarding count I as to conspiracy and counts II and III as to possession. The court overruled the motions. The jury found Nitcher and Hull guilty of aiding and abetting or conspiring to manufacture a controlled substance, possession of products with the intent to manufacture a controlled substance, and failure to affix a controlled substance tax stamp.

Hull filed a motion for new trial claiming the verdict was contrary to the law or evidence regarding possession, conspiracy, and intent to manufacture or deliver. Hull also filed a motion in arrest of judgment on the same day claiming there was insufficient evidence to support the judgment as to the link between the manufacture of a controlled substance and his presence in the house or his fingerprint on an object found in the house. He also claimed the court should have sustained his motion to suppress.

At the sentencing hearing, Nitcher joined in the motions filed by Hull. The court overruled the motions. The court then sentenced Nitcher. Nitcher appeals.

II. Issues.

On appeal we must consider: (1) whether Nitcher was denied effective assistance of original and substitute counsel and a fair trial as guaranteed by the United States Constitution and the Iowa Constitution; (2) whether the evidence was insufficient as a matter of law to convict Nitcher of aiding and abetting or conspiring to manufacture methamphetamine, possession of products with intent to manufacture methamphetamine, and failure to affix a drug tax stamp; and (3) whether the district court erred by applying an incorrect standard in overruling Nitcher’s motion for new trial.

III. Discussion and Analysis.

A. Nitcher’s claim of ineffective assistance of counsel.

Nitcher claims original and substitute counsel did not render effective assistance as guaranteed by the United States Constitution and the Iowa Constitution. Claims involving the ineffective assistance of counsel have their basis in the Sixth Amendment of the United States Constitution and thus are examined de novo. State v. Wills, 696 N.W.2d 20, 22 (Iowa 2005). Although these claims are typically preserved for postconviction relief actions, “we will address such claims on direct appeal when the record is sufficient to permit a ruling.” Id.

Nitcher claims his trial counsel was ineffective for failing to challenge the war-rantless search of the residence. He argues there is no applicable exception to the warrant requirement permitting Carroll and Fountas to enter the residence without a warrant. He concludes that because the warrantless search cannot be justified, the evidence obtained pursuant to the search warrant is tainted and inadmissible.

“In order for a defendant to succeed on a claim of ineffective assistance of counsel, the defendant must prove: (1) counsel failed to perform an essential duty and (2) prejudice resulted.” Id. In order to satisfy the first element, “‘counsel’s performance is measured against the standard of a reasonably competent practitioner with the presumption that the attorney performed his duties in a competent manner.’” State v. Doggett, 687 N.W.2d 97, 100 (Iowa 2004) (citations omitted). Prejudice exists where ‘“there is a reasonable probability that, but for the counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” Wills, 696 N.W.2d at 22 (citations omitted).

The Fourth Amendment assures “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const, amend. IV. The Fourteenth Amendment of the United States Constitution makes the Fourth Amendment binding on the states. State v. Freeman, 705 N.W.2d 293, 297 (Iowa 2005). In addition, article I, section 8 of the Iowa Constitution guarantees “[t]he right of the people to be secure in their persons, houses, /papers and effects, against unreasonable seizures and searches shall not be violated.” Iowa Const, art. I, § 8. Nitcher has not asked us nor have we found a basis to distinguish the protection afforded by the Iowa Constitution from that afforded by the federal constitution under the facts of this case. Therefore, our analysis of the search issue will apply equally to both the state and federal constitutional grounds raised by Nitcher. State v. Simmons, 714 N.W.2d 264, 271 (Iowa 2006).

Initially, it is necessary to decide if Nitcher had a legitimate expectation of privacy in the premises searched, both subjectively and objectively. State v. Lo vig, 675 N.W.2d 557, 562-63 (Iowa 2004). We have said it is apparent the Fourth Amendment protects the physical entry of a person’s home. Id. at 563. We have acknowledged a legitimate expectation of privacy may extend to protect an overnight guest in the host’s home, but we have also found no legitimate expectation of privacy if a guest is there simply to conduct a business transaction. Id. Nitcher had been staying at the residence for a few days because of an argument he had with his girlfriend. As Nitcher and the State agree, Nitcher had a legitimate expectation of privacy in view of his status as an overnight guest at the residence.

Because a legitimate expectation of privacy existed, absent a recognized exception to the search warrant requirement, searches and seizures conducted without a warrant are per se unreasonable. Freeman, 705 N.W.2d at 297. These exceptions include “ ‘searches based on consent, plain view, probable cause coupled with exigent circumstances, searches incident to arrest, and those based on the emergency aid exception.’ ” Id. (citation omitted). The State must prove by a preponderance of the evidence that such a recognized exception applies. Id. In making this determination, we must assess a police officer’s conduct based on an objective standard. Id.

The State claims the officers had probable cause coupled with exigent circumstances to enter the property near the garage area. There is probable cause to conduct a search if, under the totality of the circumstances, “a person of reasonable prudence would believe that evidence of a crime might be located on the premises to be searched.” State v. Davis, 679 N.W.2d 651, 656 (Iowa 2004).

Carroll knew ether is one of the necessary ingredients to make methamphetamine. The detection of the odor of ether coming from the residence gave Carroll and Fountas reason to approach the door of the residence to investigate the smell. See State v. Dickerson, 313 N.W.2d 526, 532 (Iowa 1981) (stating officers conducting an investigation did not invade the defendant’s reasonable expectation of privacy by going to a door that various members of society may use to call on the home in their personal or business pursuits). After knocking and identifying themselves as police officers, the officers heard the person at the door shuffle away from the door and run toward the garage. Only then did Carroll proceed to the area by the garage. Although Carroll walked across the property to get to the garage area, under these circumstances it was reasonable for him to do so in order to make contact with the person he heard at the door run toward the garage, in case that person attempted to exit the residence through a door near the garage. Cf. State v. Lewis, 675 N.W.2d 516, 527 (Iowa 2004) (stating “[i]f the officer had attempted to contact [the defendant] at his front door and received no response, the invasion of the curtilage may not have violated [the defendant’s] Fourth Amendment rights”); State v. Breuer, 577 N.W.2d 41, 49 (Iowa 1998) (noting some courts have found if no one responds to an officer’s knock, it does not violate the Fourth Amendment for the officer to walk around the residence to look for another door to interview a person). While walking toward the garage, Carroll detected the distinct odor of anhydrous ammonia and heard the shuffling of a person or persons in the garage.

After Pierce opened the door, the officers detected a strong odor of ether in the entryway. They felt it was so strong that it was unsafe to enter the residence without wearing their respirators. They also noted Pierce appeared anxious and denied the obvious presence of the chemical odor. Pierce also told the officers other persons were in the residence, including his wife and children.

Under the totality of the circumstances, which included the odors of ether and anhydrous ammonia, the sound of a person running from the front door, the shuffling of the person or persons in the garage, Pierce’s anxiousness, and his denial of the obvious presence of chemical odors, the officers had probable cause to believe the occupants of the residence were engaged in criminal activity related to the manufacture of methamphetamine. See Simmons, 714 N.W.2d at 273 (stating “[biased on [an officer’s] training and experience, coupled with the distinct odor of anhydrous ammonia and the lack of household uses for it, we find the officers had probable cause to believe the occupants of the apartment were engaged in criminal activity”); see also Kleinholz v. United States, 339 F.3d 674, 677 (8th Cir.2003) (explaining law enforcement’s detection of the odor of ether, “a substance known to be used in the manufacture of methamphetamine,” may alone establish probable cause).

“Exigent circumstances usually include ‘danger of violence and injury to the officers or others; risk of the subject’s escape; or the probability that, unless taken on the spot, evidence will be concealed or destroyed.’ ” State v. Holtz, 300 N.W.2d 888, 893 (Iowa 1981) (citation omitted). In Simmons, we noted an exigency posing a threat of danger to others allows officers to “perform a limited search to remove the immediate risk.” 714 N.W.2d at 273. We found “[t]he volatile nature of and the dangers created by methamphetamine labs can be exigent circumstances justifying an immediate limited search of premises harboring such a lab,” and we recognized various cases have upheld such searches to eliminate these potential hazards where officers had probable cause to believe an ongoing methamphetamine lab existed. Id.; see also Kleinholz, 339 F.3d at 677 (explaining the volatile nature of methamphetamine labs presents exigent circumstances justifying an immediate limited search where law enforcement smelled ether).

The record demonstrates exigent circumstances existed to allow the officers to do a limited search of the premises to eliminate the dangers associated with the manufacture of methamphetamine and to determine if other persons were on the premises who might be exposed to those dangers. The level of the chemical odor not only required the officers to wear respirators while inside the residence, but also caused them to call the fire department to the scene. When the officers entered the residence, they did so only to see if any dangers associated with the manufacture of methamphetamine were present and to make sure no other persons were still in the residence. They only searched areas big enough to hold a person. They did not open any drawers or search any areas where a person would not fit. They left the residence when they were satisfied no immediate danger existed and no more persons were in the residence.

Thus, Carroll and Fountas’s limited search of the residence was justified based on probable cause and exigent circumstances. The applicability of this exception to the warrant requirement means Nitcher’s trial and substitute counsel were not ineffective for failing to challenge the warrantless entry. See Wills, 696 N.W.2d at 24 (finding trial counsel was not ineffective for failing to raise an.issue with no merit). Accordingly, Nitcher’s ineffective-assistance-of-counsel claim must fail. See State v. Liddell, 672 N.W.2d 805, 809 (Iowa 2003) (recognizing failure to prove either a breach of an essential duty or prejudice is fatal to ineffective-assistance-of-counsel claims).

B. Nitcher’s claim the evidence was insufficient as a matter of law to convict him of aiding and abetting or conspiring to manufacture methamphetamine, possession of products with the intent to manufacture methamphetamine, and failure to affix a drug tax stamp.

Our review of Nitcher’s motion for judgment of acquittal requires us to examine the sufficiency of the evidence supporting the jury’s guilty verdict. State v. Bash, 670 N.W.2d 135, 137 (Iowa 2003). “ *We review challenges to the sufficiency of the evidence supporting a guilty verdict for correction of errors at law ” and “ ‘[w]e will uphold a verdict if substantial record evidence supports it.’ ” Id. (citation omitted). Evidence is considered substantial if, viewed in the light most favorable to the State, it can convince a rational jury that the defendant is guilty beyond a reasonable doubt. Id. “Inherent in our standard of review of jury verdicts in criminal cases is the recognition that the jury was free to reject certain evidence, and credit other evidence.” State v. Anderson, 517 N.W.2d 208, 211 (Iowa 1994). Because Nitcher does not assert the law in the instructions was incorrect, but rather the evidence did not support the jury’s finding, we will examine his claims in view of the instructions the district court gave to the jury. State v. Shanahan, 712 N.W.2d 121, 134 (Iowa 2006).

In regards to count I, Nitcher claims the evidence was not sufficient to prove he entered into an agreement with anyone to manufacture methamphetamine or that he knowingly and actively partici-patéd or encouraged such. The district court instructed the jury that the State relied on the alternative theories of aiding and abetting as well as conspiracy to prove its case under count I.

In particular, the jury was instructed that the crime of conspiracy to manufacture a controlled substance required the State to prove the following elements:

1. On or about the 30th day of December, 2003, [Nitcher] agreed with one or more other persons:
a. that one or more of them would manufacture a controlled substance, or
b. attempt to manufacture a controlled substance.
2. [Nitcher] entered into the agreement with the intent to promote or facilitate the crime of manufacturing a controlled substance.
3. [Nitcher] or the other person or persons committed an overt act.
4. The other person or persons were not law enforcement agents investigating the offense or assisting law enforcement agents in the investigation when the conspiracy began.

The court further instructed the jury “[t]he State must prove [Nitcher] and the other person or persons came to a mutual understanding the offense would be attempted or committed.”

As to the crime of aiding and abetting the manufacture of a controlled substance, the jury was instructed that the State was required to prove the following elements: (1) “On or about the 30th day of December, 2003, [Nitcher] aided and abetted the manufacture of methamphetamine”; and (2) “[Nitcher] knew that the substance he aided and abetted in manufacturing was methamphetamine.” The court further instructed the jury:

“Aid and abet” means to knowingly approve and agree to the commission of a crime, either by active participation in it or by 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 a defendant’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.”

Our review of the record causes us to conclude substantial evidence supports the jury finding of guilt as to the crime of conspiracy to manufacture a controlled substance. Nitcher does not dispute methamphetamine was manufactured at some time at the residence. Additionally, the facts that Nitcher’s clothing smelled of ether, the proximity of the coffee filters to his clothes, and Nitcher’s fingerprint on a pie plate that contained pseudoephedrine and triprolidine support the jury’s finding he was involved with the process. The evidence of Nitcher’s fingerprint on the pie plate not only supports the jury’s finding he was involved in the process to manufacture methamphetamine, but also permits the inference of an agreement. Cf. State v. Speicher, 625 N.W.2d 738, 742-43 (Iowa 2001) (explaining an agreement to sustain a conviction for conspiracy may be inferred from proof of involvement in the methamphetamine-manufacturing process). The jury could believe Nitcher entered into such an agreement with Hull, as his fingerprint was also on the pie plate. Finally, other manufacturing-related items found by the officers in the same area as the pie plate, the chemical odors, and the moistness of the substances found could lead a jury to find the methamphetamine-making process had occurred recently.

This same evidence also supports the jury’s finding that Nitcher knowingly participated in or encouraged the manufacture of methamphetamine; thus, there is substantial evidence to support a conviction on the alternate theory of aiding and abetting. See State v. Williams, 674 N.W.2d 69, 71 (Iowa 2004) (stating if alternative theories of culpability are submitted to the jury and a general verdict is returned, all theories must be supported by substantial evidence).

In regards to count II, Nitcher claims under the pre-amended version of Iowa Code section 124.401(4), the statute governing this charge, there is no evidence that he intended to use any precursors to manufacture methamphetamine. Nitcher also contends the evidence failed to show he constructively possessed the precursors.

The district court instructed the jury that the crime of possession of products with the intent to manufacture a controlled substance required the State to prove the following elements:

1. That on or about December 30, 2003, [Nitcher] knowingly possessed any product containing any of the following: ethyl ether, anhydrous ammonia, red phosphorous, lithium, iodine, thionyl chloride, chloroform, palladium, per-chloric acid, tetrahydrofuran, ammonium chloride, magnesium sulfate, or pseu-doephedrine.
2. That [Nitcher] possessed any of the above with the intent to manufacture a controlled substance, namely methamphetamine.

The court further instructed the jury:

The word “possession” includes actual as well as constructive possession, and also sole as well as joint possession.
A person who has direct physical control of something on or around his person is in actual possession of it.
A person who is not in actual possession, but who has knowledge of the presence of something and has the authority or right to maintain control of it either alone or together with someone else, is in constructive possession of it.
If one person alone has possession of something, possession is sole. If two or more persons share possession, possession is joint.

“Unlawful possession of a controlled substance requires proof that the defendant: (1) exercised dominion and control over the contraband, (2) had knowledge of its presence, and (3) had knowledge that the material was a controlled substance.” Bash, 670 N.W.2d at 137. Constructive possession may not be inferred from a defendant’s sharing of the premises with others; such possession must be established by other proof, such as

incriminating statements made by the defendant, incriminating actions of the defendant upon the police’s discovery of the controlled substance among or near the defendant’s personal belongings, the defendant’s fingerprints on the packages containing the controlled substance, and any other circumstances linking the defendant to the controlled substance.

Id. at 138.

Evidence supporting the jury’s finding that Nitcher was in possession of products with the intent to manufacture a controlled substance includes Nitcher’s presence in a residence emanating odors of ether and anhydrous ammonia, clothing belonging to Nitcher that smelled of ether, coffee filters found in close proximity to the clothing, and Nitcher’s fingerprint on a pie plate that contained pseudoephedrine and triprolidine. The odors and moistness of the substances found indicate the process had occurred recently. Nitcher’s clothing containing an ether smell and his fingerprint on the pie plate containing pseudoephed-rine constitutes substantial evidence to establish the possession link between him and the products when viewed in the context of the other evidence in this case. See State v. Heuser, 661 N.W.2d 157, 166 (Iowa 2003) (finding a defendant possessed precursors with the intent to manufacture methamphetamine based on the sum of facts).

The State was also required to prove Nitcher himself intended to manufacture methamphetamine. See State v. Truesdell, 679 N.W.2d 611, 617-19 (Iowa 2004) (examining the legislative change to section 124.401(4) and concluding, in cases where the pre-amended version applies, “this statute required the defendant intend to use the product to manufacture a controlled substance” (emphasis added)). Here, Nitcher’s clothing smelled of ether and was found in close proximity to coffee filters. This evidence coupled with the burn pile that contained punctured cans of starting fluid support the jury’s finding that he intended to manufacture methamphetamine. Likewise, Nitcher’s fingerprint on the pie plate that contained pseu-doephedrine, which was consistent with the preparation of the precursor in methamphetamine manufacture, support such intent. All the items tested by the division of criminal investigation contained pseu-doephedrine. Again, the odors and moistness of the substances found indicate the process had occurred recently. When viewed in the context of the other evidence in this case, there was substantial evidence to support the jury’s finding that Nitcher himself intended to use the products to manufacture methamphetamine. See Heuser, 661 N.W.2d at 166 (finding intent to manufacture methamphetamine from facts that circumstantially proved such intent).

In regards to count III, Nitcher claims the evidence failed to show he constructively possessed the methamphetamine, so he had no duty to affix a drug tax stamp. In this count, the crime of a drug tax stamp violation required the State to prove the following elements:

1. On or about the 30th day of December, 2003, [Nitcher] knowingly possessed a taxable substance as defined in [another instruction].
2. [Nitcher] possessed seven or more grams of the taxable substance.
3. The taxable substance that [Nitcher] possessed did not have permanently affixed to it a stamp, label or other official indication of payment of the state tax imposed on the substance.

The district court further instructed the jury that a “taxable substance” is defined as “a controlled substance, a counterfeit substance, a simulated controlled substance, or marijuana, or a mixture of materials that contains a controlled substance, counterfeit substance, simulated controlled substance or marijuana.”

The evidence that Nitcher’s clothing contained an ether smell and his fingerprint was on the pie plate containing pseu-doephedrine constitutes substantial evidence to establish the connection between him and the products. In the same area as the pie plates, there was an odor of ether, the plastic container of methamphetamine, and methamphetamine between cracks in the floorboards. The odors and moistness of the substances found indicate the process had occurred recently. This constitutes substantial evidence to support the jury’s finding as to the possession link between Nitcher and the methamphetamine when viewed in the context of the other evidence in this case. Cf. State v. Webb, 648 N.W.2d 72, 81 (Iowa 2002) (recognizing possession is a necessary component of a drug tax stamp charge, and inferences of constructive possession must be drawn from facts that “have a ‘visible, plain, or necessary connection’ with” such possession (citation omitted)). Accordingly, there was substantial evidence to support the jury’s finding of guilt as to the drug tax stamp violation.

Therefore, substantial evidence supported the jury’s finding that Nitcher was guilty of conspiracy to manufacture a controlled substance, possession of products with the intent to manufacture a controlled substance, and failure to affix a drug tax stamp.

C. Nitcher’s claim the district court erred by applying an incorrect standard in overruling his mbtion for new trial.

“The district court has broad discretion in ruling on a motion for new trial,” and thus our review in such cases is for abuse of discretion. State v. Reeves, 670 N.W.2d 199, 202 (Iowa 2003). A court may grant a new trial where a verdict rendered by a jury is contrary to law or evidence. Id. at 201. We have held the phrase “ ‘contrary to ... evidence’ ” means “ ‘contrary to the weight of the evidence.’ ” Id. (citations omitted). Unlike the suffi-cieney-of-the-evidence analysis, the weight-of-the-evidence analysis is much broader in that it involves questions of credibility and refers to a determination that more credible evidence supports one side than the other. Id. at 202.

The district court overruled Nitcher’s motion for new trial stating:

As I stated during Mr. Hull’s hearing, these are essentially a reassertion of the same motions made during trial and for the same reason they are rejected. Mr. Nitcher, the standard here is whether there was evidence from which a jury could find you guilty. The issue is not whether I agree or disagree with that verdict, and I have concluded that there is sufficient evidence to support the verdicts arrived at. So the motion — or motions, rather, are denied.

The court’s reference to Hull’s and Nitcher’s motions for directed verdicts of acquittal during the trial where the court used the sufficiency-of-the-evidence standard indicates the court did not engage in any weighing of the evidence or consideration of credibility. See State v. Scalise, 660 N.W.2d 58, 66 (Iowa 2003) (finding a court used the sufficiency-of-the-evidence standard based upon its use of certain language in its ruling, and noting an absence of an independent evaluation of the evidence and determinations of witness credibility).

In its brief, the State agrees the district court erred on this matter. Accordingly, we must reverse the district court’s ruling denying Nitcher’s motion for new trial and remand the case to the district court to rule on his motion for new trial under the correct weight-of-the-evidence standard. See State v. Ellis, 578 N.W.2d 655, 659 (Iowa 1998).

IV. Disposition.

Because the officers conducted the war-rantless search of the residence where Nitcher was staying with probable cause and exigent circumstances, Nitcher’s trial counsel was not ineffective for failing to challenge the search. Additionally, there was sufficient evidence to support the jury’s guilty verdict on the charges of aiding and abetting or conspiring to manufacture a controlled substance, possession of products with the intent to manufacture a controlled substance, and failure to affix a controlled substance tax stamp. We do find, however, the district court improperly used the sufficiency-of-the-evidence standard rather than the weight-of-the-evidence standard in ruling on Nitcher’s motion for new trial. Consequently, we affirm the convictions but remand the case to the district court to rule on the motion for new trial under the correct weight-of-the-evidence standard.

AFFIRMED IN PART, REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS.

      . See 2004 Iowa Acts ch. 1057, § 1 (replacing the phrase "intent to use the product” with the phrase "intent that the product be used”).


author: CARTER, Justice.

text:
    IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. Theodore M. MEGGERS, Respondent.
    No. 06-0549.
    Supreme Court of Iowa.
    Aug. 18, 2006.

      Charles L. Harrington and Laura Roan, Des Moines, for complainant.
    No appearance for respondent.
   CARTER, Justice.

This is a review under Iowa Court Rule 35.10 of the findings and recommendations of the Grievance Commission concerning respondent-attorney Theodore M. Meg-gers. The commission found that respondent has violated the Iowa Code of Professional Responsibility for Lawyers by (1) neglecting his professional responsibility to a client by failing to file a notice of appeal as directed by the client following an operating-while-intoxicated conviction, and (2) failing to respond to the Iowa Supreme Court Attorney Disciplinary Board’s inquiry concerning that alleged neglect. The commission has recommended that respondent’s license be suspended for an indeterminate period of time with no possibility of reinstatement for at least three months.

The chronology of significant events was as follows: On October 14, 2003, the Disciplinary Board was advised by a district associate judge that a client of respondent who had been convicted of operating a motor vehicle while intoxicated had been ordered to serve his sentence, notwithstanding his filing of an appeal bond, because respondent failed to file a notice of appeal after having been directed to do so by the client. On November 1, 2003, the Disciplinary Board wrote to respondent seeking his explanation with respect to the judge’s complaint. That communication was sent by certified mail with return receipt requested, and respondent receipted for the mailing.

When no response was received from respondent, the Disciplinary Board sent additional mailings requesting a response that were mailed on November 24, 2003, and December 3, 2003. Both of those communications were returned by postal authorities with the explanation that the post office box to which they had been mailed (respondent’s mailing address furnished to the Iowa Client Security and Disciplinary Commission) had been closed, and no forwarding address had been provided. As a result of these circumstances, the Disciplinary Board filed a formal complaint against respondent and made service on the clerk of the supreme court as permitted by Iowa Court Rule 36.6(3). The clerk’s mailing of a copy of the complaint to respondent was returned and marked undelivered.

The Grievance Commission staff made informal efforts to locate respondent, but proceeded to a hearing without him. Because respondent had not answered the complaint, the allegations contained therein were deemed admitted by the Grievance Commission. Based on those admissions, the Grievance Commission found that respondent had violated DR 6 — 101(A)(3) of the Iowa Code of Professional Responsibility for Lawyers by neglecting a client’s legal matter and violated DR 1 — 102(A)(5) of that code by failing to respond to the inquiries of the Disciplinary Board. We find the record fully supports that finding. The Grievance Commission recommended that respondent’s license be suspended for three months. We note, as did the commission, that his license is currently under suspension for failure to comply with the continuing legal education requirements.

Appropriate discipline depends on the nature of the alleged violations, the need for deterrence, the protection of the public, the maintenance of the reputation of the bar as a whole, and the attorney’s fitness to continue in the practice of law. Comm, on Profl Ethics & Conduct v. Havercamp, 442 N.W.2d 67, 69 (Iowa 1989). We are satisfied that the period of suspension recommended by the Grievance Commission represents an appropriate discipline to be imposed for respondent’s ethical violations.

We suspend respondent Theodore M. Meggers’ license to practice law in this state indefinitely with no possibility of reinstatement for three months following the filing of this opinion. The suspension shall apply to all facets of the practice of law. See Iowa Ct. R. 35.12(3). Upon application for reinstatement, respondent shall have the burden to prove he has not practiced law during the period of suspension and that he has in all other ways complied with Iowa Court Rule 35.21. Costs are assessed against the respondent. See Iowa Ct. R. 35.25(1).

LICENSE SUSPENDED.