author: APPEL, Justice.

text:
    Kim WYATT, Appellee v. IOWA DEPARTMENT OF HUMAN SERVICES and/or Iowa Department of Inspections and Appeals, Appellants.
    No. 06-0351.
    Supreme Court of Iowa.
    Jan. 18, 2008.

      Thomas J. Miller, Attorney General, and John R. Lundquist, Assistant Attorney General, for appellants.
    Vernon P. Squires and Nikki J. Johnson of Bradley & Riley, PC, Cedar Rapids, for appellee.
   APPEL, Justice.

In this case, the central issue is whether a nurse who seeks to muffle the screams of a distressed patient in order to protect the health of another seriously ill patient commits an assault under Iowa’s dependent abuse statute and as a result, has earned a place on Iowa’s dependent adult abuse registry. This case has caromed through the legal system, suffering a seemingly unending series of reversals and appeals.

We now settle the matter. No assault occurred under the facts of this case. Therefore, the decision of the court- of appeals is vacated and the decision of the district court, including expunging Wyatt’s name from the dependent adult abuse registry, is affirmed.

I. Factual and Procedural History.

Kim Wyatt is a registered nurse employed by the University of Iowa Hospitals and Clinics. On May 12, 2004, Wyatt was assigned to the neuroscience unit, a stressful unit for medical staff under even the best of circumstances. On that day, Wyatt attended to a patient who suffered from a subarachnoid hemorrhage, a neurological condition that rendered the patient highly susceptible to stimuli such as light and noise. Patients with this condition who are exposed to excess stimuli can suffer ruptured aneurysms so severe as to cause paralysis or death. As a result, such patients are typically kept in darkness in private rooms without television, radios, telephones, or other sources of stimulation. Wyatt believed her patient’s condition was particularly acute in light of the level of pain medication that had been prescribed by physicians. The level was twice as high as normally prescribed.

In a room adjacent to Wyatt’s patient, E.W. was hospitalized. E.W. was an eighty-two-year-old man admitted for evaluation as a possible candidate for brain surgery to remove a tumor from his frontal lobe. E.W. also suffered from a heart condition, hypertension, and was prone to bouts of dementia. This combination of ailments made E.W. a difficult patient who resisted all invasive medical procedures. As a result, he was often placed in restraints for his own protection and the safety of hospital staff.

While Wyatt was attending her patient, two nurses and a nursing assistant attempted to administer an IV to E.W. E.W. resisted, and began screaming, “Help me, help me.” Wyatt and another nurse, responding to the commotion, ran into the room. By the time she entered, Wyatt found four staff members attempting to restrain E.W.

Faced with the chaotic situation, Wyatt became concerned that the commotion could harm her subarachnoid patient in the next room. Seeking to abate the threat and protect her patient by muffling the shouts, Wyatt grabbed a pillow and placed it over E.W.’s mouth, below his nose.

One of the nurses present in E.W.’s room objected to the use of the pillow and asked Wyatt to- discontinue her efforts. Upon a second request, .Wyatt removed the pillow. No one ran a stopwatch in the room, but those present estimated that the incident lasted between ten and thirty seconds. There were no signs that the pillow caused E.W. physical or respiratory distress. The patient had no memory of the incident, and thus voiced no complaint as to this course of treatment.

Another treating nurse, however, filed a report with Melissa Gross, the nurse manager of the unit, the following morning. After investigating the matter, Gross concluded that dependent adult abuse had not occurred. Gross’s conclusion rested on her belief that Wyatt did not intend to abuse E.W. and that no harm resulted from her actions. Based on her investigation, Gross found that Wyatt’s sole intent was to protect her subarachnoid patient, not to harm E.W. The associate director of clinical practice, Ellen Cram, agreed with Gross’s assessment. Although Wyatt received a favorable performance review by her supervisors after the incident, the hospital elected to file a report with the Iowa Department of Inspections and Appeals (DIA) as a possible instance of dependent adult abuse.

DIA investigated the matter and determined that Wyatt had committed dependent adult abuse by unreasonably punishing and assaulting E.W. DIA thus released Wyatt’s name to the Department of Human Services (DHS) for placement on the dependent adult abuse registry. Wyatt appealed her inclusion on the registry.

After an evidentiary hearing, an administrative law judge (ALJ) issued a comprehensive proposed decision. In the proposed decision, the ALJ made findings of fact and conclusions of law. In the findings of fact, the ALJ found that Wyatt was not trying to hurt, punish, harm, cause fear, or offensively contact E.W. when she placed the pillow over his mouth. He concluded that Wyatt’s only concern was for the safety of her patient.

In the conclusions of law, the ALJ noted that under Iowa Code section 235B.2(5)(a)(1)(a) (2003), dependent adult abuse includes “assault of a dependent adult.” The ALJ further noted that under the applicable administrative rule, assault under this Code provision is the same as criminal assault defined in Iowa Code section 708.1. Iowa Admin. Code r. 441-176.1. He went on to note that while language in Bacon v. Bacon, 567 N.W.2d 414 (Iowa 1997), suggested that assault might be a general intent crime, this court overruled such an approach and declared assault a specific intent crime in State v. Heard, 636 N.W.2d 227, 231 (Iowa 2001). In light of Heard, the ALJ determined that negligent assault is not recognized by Iowa law. Based on the evidence in the record, the ALJ concluded that Wyatt did not commit dependent adult abuse and ordered that the report be expunged.

The March 10, 2005 decision of the ALJ was not mailed to the attorney for DIA. The decision itself notes that it was copied to the attorney through local delivery. The attorney for DIA, however, stated that she did not receive a copy of the proposed decision by mail or by hand delivery and was unaware of the decision until March 29, 2005, when counsel received a phone inquiry from the appeals division asking whether an appeal had been filed. Subsequently, counsel for DIA filed an appeal of the ALJ’s decision to DIA’s director on the following day.

The administrative rules of the department require that appeals be filed within fifteen days of the issuance of a proposed decision. Wyatt thus sought dismissal of the appeal as untimely, noting that a copy of the proposed decision was provided to the Health Facilities Division within DIA and to the DIA file. The director nevertheless refused to dismiss the appeal, noting that the DIA file is not the respondent’s attorney’s file for purpose of legal representation and notice, and noted that the department has not rigidly applied filing deadlines when technical irregularities are present. Good cause thus existed, according to the director, to excuse the filing, even assuming that it was untimely.

Approximately one month later, the director reversed the ALJ’s decision. In so doing, the director accepted most of the factual findings of the ALJ. He concluded, however, that “assault” was a general intent crime and all that was required was intended physical contact that a reasonable person would consider insulting or offensive. The director, moreover, rejected assertions of justification, concluding, without elaboration, that there were “several options” that could have been considered and implemented to mitigate the stimuli. Finally, he noted that the use of the pillow was not part of any care plan and that if the course of action chosen was an approved method of patient care it would have been so reflected in the record.

Wyatt sought judicial review of the director’s decision in the district court. The district court held that Iowa law did not recognize “negligent assault” and found that the record did not show that Wyatt acted with the specific intent to assault E.W. under applicable law. As a result, the district court reversed the director’s decision.

DIA appealed the decision of the district court, and we referred the case to the court of appeals. The court of appeals reversed the district court, finding that Wyatt committed an intentional assault. We granted further review.

II. Standard of Review.

Determination of the statutory requirements for dependent adult abuse has not been explicitly vested in the agency’s discretion. Mosher v. Dep’t of Inspections & Appeals, 671 N.W.2d 501, 509 (Iowa 2003). As a result, our review is for corrections of errors at law. Iowa Code § 17A.19(10)(c).

III. Discussion.

A. Timeliness of Appeal. The first issue is whether DIA’s appeal of the proposed decision was timely. A proposed decision becomes final unless an appeal is made within the time provided by agency rule. Iowa Code § 17A.15(3). Iowa Administrative Code rule 481-10.25(1) provides that a request for review of a proposed decision shall be made within fifteen days of the issuance of the proposed decision. Issuance, moreover, is defined as “the date of mailing of a decision or order or date of delivery if service is by other means.” Iowa Admin. Code r. 481-10.1.

In this case, the proposed decision dated March 10 indicates that it was sent to the Health Facilities Division of DIA. DIA’s counsel in the matter, however, did not receive a copy of the proposed decision dated March 10 until March 30 by “local” mail. DIA filed an appeal on the same day. Wyatt claims that under the circumstances, DIA’s appeal is untimely. The district court did not address this issue in light of its ruling on the merits. The court of appeals, however, held that under the applicable administrative rule, the appeal was timely.

We agree with the court of appeals on the timeliness issue. For notice to be issued, it must be sent by mail to or received by, if other service is used, DIA’s representative in the administrative proceeding, which in this case was DIA’s counsel. Since the decision was not “issued” to DIA’s counsel until March 30, the appeal was timely.

Even assuming the appeal was untimely, the agency retains discretion to waive the time requirements for appeal. Iowa Admin. Code r. 481-10.2. In excusing the delay, the director determined that good cause existed due to the mail confusion. On appeal, Wyatt does not challenge the factual finding of good cause. As a result, DIA’s appeal was timely.

B. Substantive Merits. Iowa Code chapter 235B provides the statutory framework regarding dependent adult abuse. Iowa Code section 235B.2 establishes four categories of dependent adult abuse. One category of dependent adult abuse includes “assault of a dependent adult,” which is at issue in this case. Other categories of dependent adult abuse include acts of sexual abuse, exploitation of dependent adults for personal or pecuniary profit without the consent of the dependent adult, and deprivation of food, shelter, clothing, or other care necessary to maintain the dependent adult’s life or health. See generally Iowa Code §§ 235B.2(5)(a)-(d).

Iowa Code section 235B.2 does not provide a definition of assault of a dependent adult. The administrative rules of DHS, however, provide that assault in the context of dependant adult abuse means assault as defined by the criminal code in Iowa Code section 708.1. Iowa Admin. Code r. 441-176.1.

The central question on this appeal, therefore, is whether assault under Iowa Code section 708.1 requires that the actor have a specific intent to offend or insult the victim, as contended by Wyatt, or a lesser showing that the intended physical conduct could be objectively viewed as insulting or offensive, as found by the director.

The question of what intent is required under Iowa Code section 708.1 to commit an assault has considerable recent history. In Heard, this court overruled prior precedent and held that assault was a specific intent crime. Heard, 636 N.W.2d at 231-32. The legislature in 2002 responded to our decision in Heard by adding a preface to Iowa Code section 708.1, declaring that “an assault as defined in this section is a general intent crime.” 2002 Iowa Acts ch. 1094, § 1.

This court considered the impact of the 2002 amendment in State v. Bedard, 668 N.W.2d 598 (Iowa 2003). In Bedard, the court noted that the 2002 amendment did not alter the substantive content of Iowa Code section 708.1 as it pertained to the substantive elements of the crime. As a result, Bedard held that notwithstanding the new language, specific intent, as outlined in Heard, remained a required element of assault. 668 N.W.2d at 601.

The question of the elements of assault was revisited in State v. Keeton, 710 N.W.2d 531 (Iowa 2006). In Keeton, the court noted that the two labels — specific and general intent — were difficult to apply. 710 N.W.2d at 533-34. Instead, the court emphasized the need to focus on the elements of the crime involved. In order to prove assault, we held that the State must demonstrate not only that the defendant intended to make physical contact, but that the defendant intended that physical contact to be insulting or offensive. Id.

The State counters that assault for the purpose of Iowa Code section 235B.2(5) does not require intent. The State argues that the introduction to the provision plainly states that dependent adult abuse may be committed by the “willful or negligent acts or omissions of a caretaker.” Iowa Code § 235B.2(5)(a)(1).

We disagree. This prefatory language does not recognize “negligent assault.” Instead, we interpret the preface as providing general introductory language that is broad enough to cover the intent requirement of all categories of dependent abuse. Some of the categories, such as abuse arising out of sexual acts or assault, require willful or intentional acts, while other types of abuse, such as deprivation of food, shelter, and clothing, may arise from negligent acts or omissions. We further note that the theory of “negligent assault” is inconsistent with DHS’s own rule, which incorporates the definition of assault in Iowa Code section 708.1. We, therefore, hold that the elements of assault as described in Bedard and Keeton are applicable to this case.

Applying the standard of Bedard and Keeton, we conclude that Wyatt did not have the intent necessary to assault E.W. The ALJ specifically found that Wyatt did not intend to harm or to offensively contact E.W., but only intended to muffle the noise for the protection of her nearby patient. These findings of fact were adopted by the director, are not challenged on appeal, and are thus binding against the State. As a result, we find that Wyatt did not assault E.W.

IV. Conclusion.

For the above reasons, the decision of the court of appeals is vacated and the judgment of the district court, including its order that Wyatt’s name be expunged from the dependant adult abuse registry and that DHS provide notice of expungement pursuant to Iowa Code section 235B.10, is affirmed.

DECISION OF THE COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT AFFIRMED.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Iowa, Appellee v. Raymond REYES, Appellant.
    No. 05-1000.
    Supreme Court of Iowa.
    Jan. 25, 2008.

      Mark C. Smith, State Appellate Defender, and Martha J. Lucey, Assistant State Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney General, Matthew D. Wilber, County Attorney, and Daniel McGinn and Shelley Sedlak, Assistant County Attorneys, for appellee.
   APPEL, Justice.

In this case, we must decide whether a defendant accused of sexual abuse of his minor niece is entitled to a new trial where the trial court admitted evidence of a prior sexual assault involving the same victim. In addition, the defendant claims that he was denied effective assistance of counsel as a result of his attorney’s failure to object to several jury instructions. For the reasons expressed below, we affirm his conviction and preserve in part his claim of ineffective assistance of counsel for post-conviction relief.

I. Factual and Procedural Background.

The minor involved in this case, AG, was twelve years old at the time of trial. She and her younger brother often visited their maternal grandparents in Council Bluffs during weekends and school breaks. When visiting her grandparents, AG sometimes slept upstairs on a couch, but often slept downstairs in the family room on an air mattress.

Sometime in 2003, the defendant Raymond Reyes and his wife were also visiting AG’s grandparents. Reyes is an uncle to AG and her brother. After watching television with her grandparents, AG carried her little brother, who had fallen asleep, into the family room for the night. Both AG and her little brother slept on the air mattress. Reyes was also sleeping in the family room on a couch when AG fell asleep. Reyes’ wife was sleeping in a downstairs bedroom adjacent to the family room.

AG testified that she was awakened during the night and found Reyes having sexual intercourse with her. She testified in detail that her pajama pants and underwear had been pulled down to her ankles. Her brother had rolled off the air mattress during the night and slept through the attack. Once awake, AG stated that she attempted to get out from under the defendant. AG further asserted that Reyes told her to be quiet and hold still. AG testified that after Reyes got off of her, she felt a liquid on the inside of her thighs, which she wiped off. She then fell asleep.

At first, AG did not tell anyone of the attack. At trial, she testified that she felt ashamed and guilty. Finally, over a year after the attack, she told a friend, Austin Piekos, about the incident, but at first suggested only that Reyes had penetrated her digitally. Later, however, AG told the friend that Reyes had, in fact, had sexual intercourse with her.

A couple months after confiding in her friend, AG further confided in the friend’s mother, Bonnie Piekos. Around the same time, AG had a discussion concerning her holiday plans with the school nurse. AG stated that she was not looking forward to Christmas because her uncle was a “pervert.” When the school nurse inquired further, AG disclosed to her that Reyes had attacked her in the past. The nurse reported AG’s statements to a school counselor. Reyes was subsequently arrested and charged with sexual abuse in the second degree.

On the day of trial, Reyes moved to exclude testimony from AG that Reyes had previously sexually abused her. Reyes claimed that any such testimony violated Iowa Rule of Evidence 5.404(b), which generally provides that evidence of prior bad acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. The State countered that the evidence was being offered to show “pattern.” The State further asserted that such evidence was not prejudicial because the case already involved sex abuse and was probative because it involved the same victim. The district court ruled that the evidence of the prior sexual assault could be offered by the State at trial.

At trial, AG offered testimony regarding the previous attack, which allegedly occurred in Lincoln, Nebraska, more than a year prior to the crime alleged by the State. AG admitted that she had not revealed this attack to any of her confidants and had originally told police that there were no such prior incidents.

AG also offered testimony regarding the assault charged by the State. There were, however, some inconsistencies in the evidence. AG testified that the assault took place in the summer of 2003. Mrs. Piekos, however, testified that AG told her that the assault had occurred on March 15, 2003. The testimony of Mrs. Piekos was corroborated to some extent by AG’s grandfather, who testified that he checked his calendar and believed that AG visited him from March 13-15, 2003.

The evidence at trial also showed that AG made inconsistent statements regarding the issue of whether Reyes spoke to her during the attack. Prior to trial, AG told the police that she did not recall whether Reyes said anything to her during the assault. At trial, however, AG testified that Reyes told her to be quiet and lay still during the attack.

The medical testimony at trial was inconclusive. There was no evidence of physical injury at the time of the examination, but there was medical testimony that noticeable injury would be unlikely in a young girl such as AG who was at the onset of puberty.

The only witness to testify on behalf of the defense was Reyes himself. Reyes’ direct testimony was limited to a general denial of the charge, but the State offered into evidence a tape recording of a police interview conducted at Reyes’ home. In the interview, Reyes initially denied the attack, but then recounted a dream that he had while staying at his in-laws’ home in 2003. Reyes remembered dreaming that he had fallen asleep on the couch downstairs and woke up in the family room with the dog licking his face. He then went to the bathroom and went to bed. Reyes further stated that if anything happened to AG, it occurred while he was sleeping. The unedited tape of the interview includes statements made by the police officers conducting the interview as well as comments by Reyes himself.

Prior to submission of the case to the jury, the court instructed the jury regarding the proper use of the prior sexual abuse. Specifically, Instruction No. 25 stated:

You have heard evidence that the defendant allegedly committed other acts with [AG] before the summer of 2003. If you decide the defendant committed these other acts, you may consider those acts only to determine whether the defendant has a sexual passion or desire for [AG]. You may not consider them as proving that the defendant actually committed the act charged in this case.

Counsel for Reyes did not object to this prior bad acts instruction. In addition, counsel did not seek an instruction limiting the use of police statements made in the taped interview.

The jury convicted Reyes after the July 2005 trial. Reyes filed an appeal which asserted that the evidence of the prior assault was improperly admitted and that trial counsel provided ineffective assistance of counsel in connection with his failure to object to Instruction No. 25 and for failing to request a limiting instruction on the use of the police interview. We referred the case to the court of appeals. The court of appeals determined that the evidence regarding the prior sexual assault was properly admitted under Iowa Rule of Evidence 5.404(b). On the ineffective assistance claim, the court of appeals found the record inadequate on direct appeal and preserved the claim for postconviction relief.

II. Standard of Review.

We review rulings on the admission of evidence of prior bad acts for an abuse of discretion. State v. White, 668 N.W.2d 850, 853 (Iowa 2003). “An abuse of discretion occurs when the trial court ‘exercises its discretion on grounds clearly untenable or to an extent clearly unreasonable.’ ” State v. Greene, 592 N.W.2d 24, 27 (Iowa 1999) (quoting State v. Smith, 522 N.W.2d 591, 593 (Iowa 1994)). To the extent constitutional claims are at issue, our review is de novo. State v. Piper, 663 N.W.2d 894, 901 (Iowa 2003).

III. Discussion.

A. Admission of Prior Sexual Abuse Involving Same Victim.

1. Applicable Law. In this case, we confront a preliminary issue in connection with the admission of prior bad act evidence. At trial, the State relied on Iowa Rule of Evidence 5.404(b) for the admission of the prior bad acts evidence. This rule of evidence provides that evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity with the prior criminal acts. Iowa R. Evid. 5.404(b). The prior criminal acts may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Id.

The Iowa legislature, however, in 2003 enacted Iowa Code section 701.11 (2005). 2003 Iowa Acts ch. 132, § 1. Section 1 of this new Code provision provides,

In a criminal prosecution in which a defendant has been charged with sexual abuse, evidence of the defendant’s commission of another sexual abuse is admissible and may be considered for its bearing on any matter for which the evidence is relevant. This evidence, though relevant, may be excluded if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. This evidence is not admissible unless the state presents clear proof of the commission of the prior act of sexual abuse.

Iowa Code § 701.11(1).

Under Iowa law, section 701.11 was fully applicable at Reyes’ trial in 2005. State ex rel Buechler v. Vinsand, 318 N.W.2d 208, 210 (Iowa 1982); State ex rel. Leas in Interest of O’Neal, 303 N.W.2d 414, 420 (Iowa 1981). The State, however, only contended that the prior sexual assault was admissible under Iowa Rule of Evidence 5.404(b). After submission of this appeal, this court asked for supplemental briefing on the question of whether Iowa Code section 701.11(1) provided a basis for admission of the challenged evidence notwithstanding the failure of the State to assert either at trial or on appeal that the evidence was admissible under this new Code provision.

Specifically, the parties were directed to brief the issue of whether the rule of evidence established in DeVoss v. State, 648 N.W.2d 56 (Iowa 2002), applied in this case. In DeVoss, we held that general error preservation requirements do not foreclose this court’s consideration of alternate grounds for the admission of evidence on appeal. 648 N.W.2d at 62. The rule in DeVoss is based on the common sense notion that a conviction should not be reversed where evidence is erroneously admitted on the theory advanced by the prosecution at trial, but would be fully admissible on retrial on an alternate theory. Id. There is no sense in requiring a retrial based on erroneous admission of evidence if the identical evidence would be admissible on retrial.

Reyes recognizes the DeVoss principle but objects on procedural grounds. Reyes contends that under Iowa Code section 701.11(2), notice of intent to offer evidence of a prior sexual act must be provided ten days prior to trial. Iowa Code § 701.11(2). In this case, the record only shows that an oral motion in limine was raised the day of trial. While it is clear that the defendant knew of the State’s intention to offer prior bad acts evidence at some time prior to trial, the record does not establish whether Reyes learned of the State’s intention to offer the evidence ten days prior to trial. The State responds, however, that Reyes plainly had adequate notice of the State’s intention and that, in any event, if there was not ten days notice, Iowa Code section 701.11(2) allows the court “for good cause” to permit disclosure less than ten days prior to trial. Id. The State asserts that its failure to comply with the notice requirement “could have and likely would have” been excused by the trial court in this case.

We conclude the notice issue is a red herring. Reyes does not contend that he was in any way prejudiced by the lack of notice at trial. In light of this lack of prejudice, there is little reason to require a retrial if the prior bad acts evidence, though arguably not admissible under Iowa Rule of Evidence 5.404(b), is admissible on retrial under Iowa Code section 701.11. The real issue under DeVoss is not what kind of notice occurred at trial, but instead is whether the State could meet the statutorily established notice requirements should there be a retrial. Clearly at a putative retrial, the State would meet the ten-day notice requirement.

Reyes further contends that under Iowa Code section 701.11(1), the court is required to balance the probative value of the evidence against the prejudice to the defendant. Reyes contends that the district court did not engage in this assessment. We disagree. At the motion in limine hearing, the State specifically argued that the probative value of the prior bad acts testimony involving the same alleged victim outweighed any prejudicial impact. Although the district court did not expressly rule on the balancing issue in its oral denial, the district court necessarily considered the issue of balancing. State v. Long, 628 N.W.2d 440, 447 (Iowa 2001).

Further, on retrial, it is clear that the evidence would be admissible under Iowa Code section 701.11(1). The evidence elicited at trial concerning the prior sexual assault was concise, direct, and noninfla-matory, and of a nature similar to that in the underlying charge. The evidence was not of a nature that would have incited “overmastering hostility” toward Reyes. White, 668 N.W.2d at 855. It is thus not subject to exclusion under section 701.11(1) on the grounds that its probative value was substantially outweighed by the danger of unfair prejudice, confusion of issues, or misleading the jury. United States v. Mound, 149 F.3d 799, 802 (8th Cir.1998).

Aside from these procedural challenges, Reyes also suggests that the De Voss rule is inapplicable because the State does not have “clear proof’ of the prior sexual assault. We conclude, however, that direct testimony from the victim of a prior alleged assault, as a matter of law, is sufficient “clear proof’ to meet the code requirement. State v. Jones, 464 N.W.2d 241, 243 (Iowa 1990).

2. Due Process Challenge to the Constitutionality of Iowa Code section 701.11. Reyes also challenges the constitutionality of Iowa Code section 701.11(1) on due process grounds. Specifically, Reyes claims that the application of Iowa Code section 701.11 would violate his right to due process under Article I, section 9 of the Iowa Constitution. The thrust of Reyes’ argument is that a person should be found guilty of a crime not based on who he or she is, but upon the specific facts of the case. Although Reyes’ challenge is based on due process under the Iowa Constitution, he does not offer or suggest a framework different than that under the United States Constitution. As a result, we consider the legal standard under the Iowa Constitution as identical to that under the United States Constitution. Callender v. Skiles, 591 N.W.2d 182, 187 (Iowa 1999).

The United States Supreme Court has left open the question of whether a state law permitting admission of propensity evidence violates due process under the United States Constitution. Estelle v. McGuire, 502 U.S. 62, 75 n. 5, 112 S.Ct. 475, 484 n. 5, 116 L.Ed.2d 385, 401 n. 5 (1991). Lower federal courts, however, have generally upheld the admission of evidence regarding prior bad acts under Federal Rules of Evidence 413 and 414, which are nearly identical to Iowa Code section 710.11. United States v. LeMay, 260 F.3d 1018 (9th Cir.2001); Mound, 149 F.3d at 799; United States v. Castillo, 140 F.3d 874 (10th Cir.1998); United States v. Enjady, 134 F.3d 1427 (10th Cir.1998).

When evaluating the constitutionality of rules of evidence under due process attack, the traditional approach has been to invalidate an evidentiary rule only if it “violates those ‘fundamental conceptions of justice which lie at the base of our civil and political institutions,’ which define ‘the community’s sense of fair play and decency.’ ” United States v. Lovasco, 431 U.S. 783, 790, 97 S.Ct. 2044, 2049, 52 L.Ed.2d 752, 759 (1977) (citations omitted). The United States Supreme Court has declared that courts should construe the category of evidentiary rules that violate this rule “very narrowly.” Dowling v. United States, 493 U.S. 342, 352, 110 S.Ct. 668, 674, 107 L.Ed.2d 708, 720 (1990).

In determining whether an eviden-tiary rule meets the Lovasco standard, historical practice is a relevant factor. Montana v. Egelhoff, 518 U.S. 37, 43-44, 116 S.Ct. 2013, 2017-18, 135 L.Ed.2d 361, 368 (1996). The historical practice with respect to the admissibility of prior sexual acts is ambiguous at best. About half the states have developed a “lustful disposition” or “depraved sexual instinct” exception which allows evidence of prior sexual misconduct involving children to be admitted into evidence. Mary Christine Hutton, Commentary: Prior Bad Acts Evidence in Cases of Sexual Contact with a Child, 34 S.D. L.Rev. 604, 614 n. 47 (1989). In other jurisdictions, evidence of prior sexual abuse has been excluded even in cases involving sexual misconduct involving the same child victim. Getz v. State, 538 A.2d 726 (Del.1988); Lannan v. State, 600 N.E.2d 1334 (Ind.1992).

In Iowa, our approach to the admissibility of prior acts of sexual abuse has evolved over time. Older cases have admitted evidence of prior bad acts to demonstrate a defendant’s “lustful disposition” toward a particular victim or generally to show abnormal sexual proclivities such as pedophilia. State v. Neubauer, 145 Iowa 337, 124 N.W. 312 (1910); State v. Trusty, 122 Iowa 82, 97 N.W. 989 (1904).

More recently, however, this court has narrowed the scope of admissibility of pri- or sexual abuse in criminal cases. This court in State v. Spaulding, 313 N.W.2d 878 (Iowa 1981), held that prior sexual abuse was admissible “ ‘to show a passion or propensity for illicit sexual relations with the particular person concerned in a criminal trial.’ ” 313 N.W.2d at 880 (emphasis added; citation omitted). Twenty years after Spaulding, this court held in State v. Mitchell, 633 N.W.2d 295 (Iowa 2001), that prior sexual misconduct involving different victims was not admissible. 633 N.W.2d at 300.

In a recent case involving prior bad acts not involving sexual abuse, this court stressed that prior bad act evidence “must be relevant and material to a legitimate issue in the case other than a general propensity to commit wrongful acts.” State v. Sullivan, 679 N.W.2d 19, 25 (Iowa 2004). In the post-Sullivan case of State v. Taylor, 689 N.W.2d 116 (Iowa 2004), the court considered whether prior instances of domestic abuse against the same person were admissible in a domestic assault proceeding. In Taylor, we held that such evidence was admissible, noting that domestic violence is never a single isolated instance but is a pattern of behavior, with each incident connected to the others. 689 N.W.2d at 129 n. 6.

The Iowa case law demonstrates that the rule announced in Iowa Code section 701.11, to the extent it applies to prior sexual abuse of the same victim, conforms to historical practice. Montana, 518 U.S. at 43-44, 116 S.Ct. at 2017-18, 135 L.Ed.2d at 368. As a result, historical usage does not support a due process violation with respect to the admission of prior sexual misconduct involving the same victim. Castillo, 140 F.3d at 882.

We recognize that history and tradition is the starting point, but not necessarily the ending point of due process analysis in all cases. State v. Seering, 701 N.W.2d 655, 664 (Iowa 2005). The mere fact that a practice is ancient does not mean it is embodied in the constitution. Enjady, 134 F.3d at 1432. The existence of prior sexual abuse involving the same alleged perpetrator and victim, however, has relevance on the underlying criminal charge because it shows the nature of the relationship between the alleged perpetrator and the victim. Further, the potential of undue prejudice where prior sexual abuse evidence is admitted in cases involving the same alleged perpetrator and victim is far less than in cases where the prior bad acts involve other alleged victims. We hold that a defendant’s fundamental right to a fair trial is not jeopardized by the admission of such evidence. LeMay, 260 F.3d at 1027; Mound, 149 F.3d at 800; Castillo, 140 F.3d at 881-83; Enjady, 134 F.3d at 1431; United States v. Wright, 48 M.J. 896, 901 (A.F.Crim.Ct.App.1998).

We further note that to the extent the admission of prior acts of sexual abuse involving the same victim raises potential fairness concerns due to the inflammatory or unduly prejudicial nature of the evidence, Iowa Code section 701.11 vests discretion in trial courts to exclude the evidence. Federal appellate courts have held that the existence of such a safety valve is a factor which alleviates potential due process problems posed by the admission of prior acts of sexual misconduct. Enjady, 134 F.3d at 1433; Kerr v. Caspari, 956 F.2d 788, 790 (8th Cir.1992).

We hold that in this case, admission of prior sexual abuse involving the same victim does not amount to a constitutional violation of due process. The evidence was thus not offered to show a general propensity to be attracted sexually to young girls, but instead to demonstrate the nature of the defendant’s relationship and feelings toward a specific individual. We also hold that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice, confusion of issues, or misleading the jury. The evidence of prior sexual abuse was offered in a direct, concise, and noninflamatory fashion and was similar to the underlying charge against Reyes. Mound, 149 F.3d at 802. The admission of the evidence of prior acts of sexual abuse involving the same alleged perpetrator and alleged victim is therefore consistent with Iowa Code section 701.11 and with the due process guarantee under the Iowa Constitution.

B. Claims of Ineffective Assistance of Counsel.

Reyes claims his trial counsel was ineffective because of his failure to properly handle jury instructions. His first claim of ineffective assistance arises from his counsel’s failure to object to Instruction No. 25. As noted above, the instruction told the jury that it was to use evidence of the prior sexual incident only to show that Reyes had a sexual desire toward AG and not to prove that Reyes actually committed the crime in this case. Reyes claims that his counsel should have objected to the instruction on the ground that it did not advise that “the weight and significance of the evidence, if any, is for the jury to decide.... ” See People v. Falsetta, 21 Cal.4th 903, 89 Cal.Rptr.2d 847, 986 P.2d 182, 192 (1999).

We ordinarily preserve claims of ineffective assistance of counsel for post-conviction relief proceedings. State v. Tate, 710 N.W.2d 237, 240-41 (Iowa 2006). With respect to the challenge to Instruction No. 25, however, we find that the record on this issue is sufficient to allow us to resolve the issue on direct appeal. Instruction No. 25 specifically states that the evidence of prior sexual assault was relevant “only if you decide that the defendant committed these other acts.” Further, the instruction limited the use of the evidence to establish that Reyes had sexual passion or desire for AG. It further clearly stated that the evidence could not be used to determine whether the underlying offense was committed. While the phrasing could have been more elaborate, we do not believe counsel provided ineffective assistance because of his failure to object to this generally accurate instruction. See State v. Oliver, 341 N.W.2d 744 (Iowa 1983) (holding no error where any ambiguity in instruction was hypertechnical and speculative).

Reyes also argues that counsel was ineffective in light of his failure to seek a limiting instruction in connection with the taped interview Reyes gave to law enforcement officers prior to his arrest. Reyes argues that the jury should have been instructed that the officers’ statements were to be considered only to establish the context of Reyes’ statements and not for the truth of the matters asserted. On this issue, we agree with the court of appeals that the record is not sufficiently developed to allow for disposition on direct appeal. Counsel may have had strategic concerns for not seeking the instruction that are not illuminated in the record on appeal. State v. Biddle, 652 N.W.2d 191, 203 (Iowa 2002). We preserve the issue for postconviction relief proceedings.

IV. Conclusion.

For the reasons expressed above, Reyes’ conviction is affirmed. His challenge related to a limiting instruction in connection with the tape recorded interview is preserved for postconviction relief.

AFFIRMED.

All justices concur except HECHT, J., who takes no part.

      . In settings involving prior sexual abuse with persons other than the alleged victim, there is a substantial risk that " 'a jury will convict for crimes other than those charged-or that, uncertain of guilt, it will convict anyway because a bad person deserves punishment....' ” Old Chief v. United States, 519 U.S. 172, 181, 117 S.Ct. 644, 650, 136 L.Ed.2d 574, 588 (1997) (quoting United States v. Moccia, 681 F.2d 61, 63 (1st Cir.1982)). We express no view regarding the constitutionality of Iowa Code section 701.11 where the prior acts of sexual abuse involve persons other than the current alleged victim.


author: LARSON, Justice.

text:
    Casandra LOBBERECHT and David L. Lobberecht, Individually and as Next Best Friends of Keiffer Lobberecht, Adam Lobberecht, and Olivia Lobberecht, Appellants, v. Akella CHENDRASEKHAR and the Iowa Clinic, P.C., Appellees.
    No. 06-0672.
    Supreme Court of Iowa.
    Feb. 1, 2008.

      Alfredo Parrish and Tammy Westhoff Gentry of Parrish, Kruidenier, Moss, Dunn, Boles, Gribble & Cook, L.L.P., Des Moines, for appellants.
    Robert D. Houghton of Shuttleworth & Ingersoll, P.L.C., Cedar Rapids, for appel-lees.
   LARSON, Justice.

Casandra and David Lobberecht sued Dr. Akella Chendrasekhar and the Iowa Clinic for damages arising out of Dr. Chendrasekhar’s allegedly negligent treatment of Casandra. The district court granted the defendants’ motion for summary judgment on the ground the Lobber-echts were not the real parties in interest, and the court of appeals affirmed. We vacate the decision of the court of appeals, affirm the judgment of the district court in part and reverse it in part, and remand.

I. Facts and Prior Proceedings.

Casandra Lobberecht had gastric bypass surgery on December 18, 2002, by Dr. Chendrasekhar, a doctor employed by the Iowa Clinic, P.C. Lobberecht began experiencing abdominal pain, and on February 18, 2008, sought further treatment from Dr. Chendrasekhar, who suspected she suffered from inflammation of the gallbladder. Shortly thereafter, he performed surgery to remove Lobberecht’s gallbladder. Her abdominal pain continued, however, and on March 29, 2003, she went to the Iowa Methodist Medical Center emergency room with severe pain. She was admitted to Iowa Methodist for pain control and additional tests to determine the source of her pain. Lobberecht underwent a test that revealed a fistula or an opening along the staple lines of her stomach pouch. Lobberecht was discharged from the hospital on April 2, 2003, and was told to return to Dr. Chendrasekhar for a follow-up after two to three weeks. On April 22, 2003, Lobberecht returned to the Iowa Clinic complaining of continued abdominal pain and a possible hernia. Dr. Chendra-sekhar again noted the presence of the fistula and told Lobberecht that he would probably do repair work on the fistula during her hernia surgery. On April 26, 2003, just before the date of her scheduled surgery, Lobberecht was admitted to the Iowa Methodist Medical Center with severe abdominal pain due to either the hernia or problems from the fistula. Surgery was performed on April 27, 2003, to repair the hernia and the fistula. However, the fistula was not addressed at that time due to excessive scar tissue. At Lobberecht’s June 5, 2003 follow-up visit, Dr. Chendra-sekhar noted that Lobberecht was doing well after the hernia surgery, although she began regaining some of her weight.

On May 28, 2003, the Lobberechts filed for chapter 7 bankruptcy. They did not list on their bankruptcy forms any potential medical-malpractice claim against the defendants. The Lobberechts received their discharge in bankruptcy on August 26, 2003.

On January 9, 2004, Lobberecht went to Mahaska Hospital with abdominal pain. Over the next seven months, Dr. Timothy Breon of the Mahaska Hospital performed several procedures intended to address the problems occurring as a result of the fístu-la.

On December 14, 2004, the Lobberechts filed suit against Dr. Chendrasekhar and the Iowa Clinic, claiming negligent performance of the gastric bypass surgery, negligent postoperative treatment, and wrongful performance of unnecessary gallbladder surgery. The defendants moved for summary judgment, claiming the plaintiffs lacked standing to bring the lawsuit because the bankruptcy trustee was the true party in interest. The district court agreed and granted summary judgment in favor of the defendants. The court of appeals affirmed, and the plaintiffs’ application for further review was granted by this court.

II. Scope of Review.

We review a district court’s ruling on a motion for summary judgment for correction of errors at law. Peppmeier v. Murphy, 708 N.W.2d 57, 58 (Iowa 2005). Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact, and that the moving party is entitled to a judgment as a matter of law.” Iowa R. Civ. P. 1.981(3). The evidence presented must be viewed in the light most favorable to the party opposing summary judgment. Kelly v. Iowa Mut. Ins. Co., 620 N.W.2d 637, 641 (Iowa 2000); Gen. Car & Truck Leasing Sys., Inc. v. Lane & Waterman, 557 N.W.2d 274, 276 (Iowa 1996).

III. Disposition.

The single issue presented is whether the plaintiffs’ medical-malpractice cause of action against the defendants belongs to them, as individuals, or to the bankruptcy estate. If the cause of action belongs to the bankruptcy trustee, the plaintiffs are not the real parties in interest.

On the filing of a chapter 7 bankruptcy petition, a bankruptcy estate is created, comprising “all legal or equitable interests of the debtor in property as of the commencement of the case.” 11 U.S.C. § 541(a)(1). The Eighth Circuit summarized a court’s inquiry into whether property belongs to the bankruptcy estate:

First, the court must decide whether the item constitutes “property” under § 541(a)(1). Second, the court should look to state law to ascertain the debt- or’s interest in the property.... Third, the court must find that the debtor had the property interest at the time of filing the bankruptcy petition.

In re Mahendra, 131 F.3d 750, 755 (8th Cir.1997) (citations omitted). “The property of a bankruptcy estate is ‘broadly defined,’ ... [and] includes all causes of action that the debtor could have brought at the time of the bankruptcy petition.” United States ex rel. Gebert v. Transp. Admin. Serv., 260 F.3d 909, 913 (8th Cir.2001) (citations omitted). Whether a debt- or has an interest in property at the time the bankruptcy petition is filed is determined by state law. In re Mahendra, 131 F.3d at 755; Collins v. Fed. Land Bank of Omaha, 421 N.W.2d 136, 138 (Iowa 1988) (“Whether a trustee in bankruptcy succeeds to property of the debtor in a chapter 7 bankruptcy under 11 U.S.C. section 541(a)(1) turns on whether the debtor has a legal or equitable interest in the property under applicable state law at the time the bankruptcy petition is filed.”).

In Iowa, a person has a legal interest in a cause of action when it accrues, and that occurs when “an aggrieved party has a right to institute and maintain a lawsuit.” Dolezal v. Bockes, 602 N.W.2d 348, 351 (Iowa 1999). Here, we must determine when the plaintiffs’ cause of action accrued to determine whether it is part of the bankruptcy estate. See In re Swift, 129 F.3d 792, 795 (5th Cir.1997) (“Our first task, then, is to determine whether Swift had a property interest in the causes of action against State Farm at the time he filed bankruptcy. Stated differently, we must determine whether Swift’s causes of action had accrued.”). The plaintiffs, relying on the statute-of-limitations provisions of Iowa Code section 614.1(9), contend that their cause of action for medical malpractice did not accrue until they knew, or should have known, they were injured. Section 614.1(9) provides that medical-malpractice cases must be brought

within two years after the date on which the claimant knew, or through the use of reasonable diligence should have known, ... of the existence of [ ] the injury or death for which damages are sought in the action, whichever of the dates occurs first....

The plaintiffs argue that their medical-malpractice claim could not have accrued as of the date they filed for bankruptcy because, as of that date, they did not know, and could not reasonably have known, of their injury. Unfortunately for the plaintiffs, the present case is not a statute-of-limitations case. The statute of limitations under section 614.1(9) determines when a cause of action is lost by passage of time. However, for bankruptcy purposes, the question is not when the cause of action was lost, but when it was acquired. In other words, could the plaintiffs have sued prior to May 28, 2003, the date they filed their bankruptcy petition? If so, the cause of action belonged to the trustee in bankruptcy and not the plaintiffs.

A federal court explained the distinction between accrual for statute-of-limitations purposes and accrual for bankruptcy purposes. As that court noted,

the statute of limitations may begin to run on a date other than that on which the suit could first be maintained. A classic example illustrates this. Consider a case of medical malpractice in which the treating physician has left a dangerous metal instrument inside the body of his patient. At the time the doctor finishes the surgery, the doctor has completed a tort. He has violated a legal duty owed to the patient, and the patient was injured by that violation. If the patient instituted suit at this moment, his suit would be viable.

Swift, 129 F.3d at 796. The court in Swift concluded that the bankruptcy estate, not the plaintiffs, was the owner of the cause of action for negligence and breach of fiduciary duty, even though the plaintiffs’ claim had not accrued for statute-of-limitations purposes at the time they filed their bankruptcy petition. Id. at 802. Thus, accrual for statute-of-limitations purposes is irrelevant to determining whether a cause of action has accrued for bankruptcy purposes.

In Iowa, a medical-malpractice cause of action accrues when “all the necessary elements have occurred.” Slater v. Farmland Mut. Ins. Co., 334 N.W.2d 728, 730 (Iowa 1983).

To establish a prima facie case of medical malpractice, the plaintiff must submit evidence that shows the applicable standard of care, the violation of the standard of care, and a causal relationship between the violation and the harm allegedly experienced by the plaintiff.

Peppmeier, 708 N.W.2d at 61-62.

In this case, the plaintiffs’ petition alleges the defendants were negligent in the following respects:

a. In performance of the Roux-en-Y Gastric Bypass procedure utilizing an outdated and inadequate technique, below the current standard of care;
b. In failing to completely divide the stomach as necessary for a successful outcome;
c. In failing to properly and adequately perform an anastomosis of the gastric pouch to the small bowel of the Roux limb.
d. In failing to exercise a degree of care and skill ordinarily exercised in the performance of such surgery under the conditions and circumstances then and there existing.

All of these acts occurred on December 18, 2002, the date of the surgery. As of that date, the plaintiffs’ medical-malpractice cause of action had accrued for bankruptcy purposes, and the plaintiffs’ right to sue was complete. The cause of action therefore became the property of the bankruptcy estate, and the district court and the court of appeals properly concluded that the plaintiffs were not the real parties in interest. However, the proper remedy is not to dismiss, but to allow a reasonable time, as determined by the district court, for substitution of the real party in interest. See Iowa R. Civ. P. 1.201. We vacate the decision of the court of appeals, affirm the judgment of the district court in part, reverse it in part, and remand.

DECISION OF COURT OF APPEALS VACATED; JUDGMENT OF DISTRICT COURT AFFIRMED IN PART AND REVERSED IN PART; CASE REMANDED.

All justices concur except APPEL, J., who takes no part.


text:
    Robert M. SPEIGHT and Beverly E. Speight, Appellants, v. WALTERS DEVELOPMENT COMPANY, LTD., Appellee.
    No. 05-1996.
    Supreme Court of Iowa.
    Feb. 1, 2008.

      Harley C. Erbe of Erbe Law Firm, West Des Moines, for appellants.
    Brian P. Rickert and Michael J. Green of Brown, Winick, Graves, Gross, Basker-ville & Schoenebaum, P.L.C., Des Moines, for appellee.
   LARSON, Justice.

The plaintiffs, Robert and Beverly Speight, appeal from a summary judgment entered against them in their suit for breach of implied warranty of workmanlike construction against the builder of their home. The court of appeals affirmed. Both the district court and the court of appeals expressly declined to recognize an implied-warranty claim in favor of third-party purchasers, deferring for such a decision to this court. We now extend our common law of implied warranty to cover such parties and therefore vacate the decision of the court of appeals, reverse the judgment of the district court, and remand for further proceedings.

I. Facts and Prior Proceedings.

The Speights are the present owners of a home in Clive, Iowa, which was custom-built in 1995 by the defendant, Walters Development Company, Ltd. It was built for use by the original buyers, named Roche. The Roches sold the home to people named Rogers, who in turn sold it to the Speights on August 1, 2000. Sometime after purchasing the home, the Speights noticed water damage and mold. A building inspector determined that the damage was the result of a defectively constructed roof and defective rain gutters. Nothing in the record indicates that any of the owners between the original builder and the Speights had actual or imputed knowledge of these defects.

The Speights filed suit against Walters on May 23, 2005, alleging a breach of implied warranty of workmanlike construction and general negligence in construction of the home. Both the Speights and Walters moved for summary judgment, raising the issue of whether the Speights, as remote purchasers, could pursue a claim for breach of an implied warranty of workmanlike construction. Walters also raised the issue of whether the plaintiffs’ claim for breach of implied warranty was barred by Iowa Code section 614.1(4) (2005), the applicable statute of limitations. The district court concluded that, under the present state of the law, the Speights could not maintain an implied-warranty claim, and in any event, such claim would be barred by the statute of limitations. The district court also concluded that the Speights could not bring a general negligence claim because they did not assert an accompanying claim for personal injury — a ruling the plaintiffs do not challenge on appeal.

II. The Implied-Warranty Claim.

The implied warranty of workmanlike construction is a judicially created doctrine implemented to protect an innocent home buyer by holding the experienced builder accountable for the quality of construction. See 17 Richard A. Lord, Williston on Contracts § 50:30 (4th ed. 2007) [hereinafter Lord]. Home buyers are generally in an inferior position when purchasing a home from a builder-vendor because of the buyer’s lack of expertise in quality home construction and the fact that many defects in construction are latent. These defects, even if the home were inspected by a professional, would not be discoverable. See Sean M. O’Brien, Note, Caveat Venditor: A Case for Granting Subsequent Purchasers a Cause of Action Against Builder-Vendors for Latent Defects in the Home, 20 J. Corp. L. 525, 529 (Spring 1995).

The implied warranty of workmanlike construction addresses the inequities between the buyer and the builder-vendor by requiring that a building be constructed “in a reasonably good and workmanlike manner and ... be reasonably fit for the intended purpose.” Kirk v. Ridgway, 373 N.W.2d 491, 492 (Iowa 1985). In Kirk this court applied the doctrine of implied warranty of workmanlike construction to the sale of a home by the builder to the first owner. 373 N.W.2d at 496. In doing so, we noted that interest in consumer protection had increased, and the complexity of homes had increased, making it difficult for a buyer to discover defects in the construction. Id. at 493-94. In Kirk we rejected the application of the doctrine of caveat emptor under which “it has been observed, courts considered purchasing as a game of chance.” Id. at 493 (citing Roberts, The Case of the Unwary Home Buyer: The Housing Merchant Did It, 52 Cornell L.Q. 835, 836 (1967)). We noted that home buyers are ill-equipped to discover defects in homes, which are increasingly complex, and therefore must rely on the skill and judgment of the vendor. Id. at 494.

In Kirk we held that, in order to sustain a claim that a builder-vendor has breached the implied warranty of workmanlike construction, the buyer must show:

(1) [tjhat the house was constructed to be occupied by the [buyer] as a home;
(2) that the house was purchased from a builder-vendor, who had constructed it for the purpose of sale;
(3) that when sold, the house was not reasonably fit for its intended purpose or had not been constructed in a good and workmanlike manner;
(4) that, at the time of purchase, the buyer was unaware of the defect and had no reasonable means of discovering it; and
(5) that by reason of the defective condition the buyer suffered damages.

Id. at 496; see also Flom v. Stahly, 569 N.W.2d 135, 142 (Iowa 1997).

In Kirk we defined a “builder” as

“a general building contractor who controls and directs the construction of a building, has ultimate responsibility for completion of the whole contract and for putting the structure into permanent form thus, necessarily excluding merchants, material men, artisans, laborers, subcontractors, and employees of a general contractor.”

373 N.W.2d at 496 (quoting Jeanguneat v. Jackie Hames Constr. Co., 576 P.2d 761, 762 (Okla.1978)).

The plaintiffs ask this court to take the cause of action recognized in Kirk one step further by applying it to the case of a subsequent purchaser. Jurisdictions outside of Iowa are split on this issue.

Many jurisdictions do not permit subsequent purchasers to recover for a breach of the implied warranty of workmanlike construction. This holding stems from the lack of a contractual relationship between the subsequent purchaser and the builder-vendor. Michael A. DiSabatino, J.D., Annotation, Liability of Builder of Residence for Latent Defects Therein as Running to Subsequent Purchasers from Original Vendee, 10 A.L.R.4th 385, 388 (1981) [hereinafter DiSabatino]. The implied warranty of workmanlike construction is contractual in nature, and because privity is traditionally required in order to maintain a contract action, some courts have concluded that the lack of privity between the subsequent purchaser and the builder-vendor prevents the subsequent purchaser’s implied-warranty claim. O’Brien, 20 J. Corp. L. at 537; see also Mary Dee Pridgen, Consumer Protection and the Law § 18:19 (2006) [hereinafter Pridgen] (discussing the holding in Crowder v. Vandendeale, 564 S.W.2d 879, 881 (Mo.1978)); 2 James Acret, Construction Law Digests § 14:12 (2007) [hereinafter Acret] (“The implied warranty of habitability arises out of a contract between the builder and the initial buyer. There is no hint in the case law that it arises out of the general duty to build a reasonably fit house, by reason of which the builder would be liable to remote purchasers, that is, the general public, having no privity with it.” (discussing the holding in Foxcroft Townhome Owners Ass’n v. Hoffman Rosner Corp., 96 Ill.2d 150, 70 Ill.Dec. 251, 449 N.E.2d 125 (1983))). Further, because there is a lack of privity between the subsequent purchaser and the builder-vendor, there is no reliance by the subsequent purchaser on any representations made by the builder-vendor regarding the quality of construction. See Pridgen, § 18:19. Finally, some courts have concluded that the justifications for eliminating the privity requirement in products liability cases do not exist in the sale of real estate. See DiSabatino, 10 A.L.R.4th at 397-98 (“The court reasoned that a house which is not the product of a mass marketing scheme or which is not designed as a temporary dwelling differs from the usual item to which the principles of strict liability have generally been applied, in that it is not an item which generally changes owners or occupants frequently.” (discussing Coburn v. Lenox Homes, Inc., 173 Conn. 567, 378 A.2d 599 (1977))).

Other jurisdictions do permit subsequent purchasers to recover for a breach of the implied warranty of workmanlike construction. The purpose of the implied warranty of workmanlike construction is to ensure that innocent home buyers are protected from latent defects. This principle is “ ‘equally applicable to subsequent purchasers’ ” who are in no better position to discover those defects than the original purchaser. Acret, § 14:12 (discussing and quoting the holding in Lempke v. Dagenais, 130 N.H. 782, 547 A.2d 290 (1988)); see also Pridgen, § 18:19 (“ ‘The purpose of a warranty is to protect innocent purchasers and hold builders accountable for their work. With that object in mind, any reasoning which would arbitrarily interpose a first buyer as an obstruction to someone equally as deserving of recovery is incomprehensible.’ ” (quoting Moxley v. Laramie Builders, Inc., 600 P.2d 733, 736 (Wyo.1979))). Thus, the public policy justifications for eliminating the doctrine of caveat emptor for original purchasers of new homes similarly support allowing subsequent purchasers to recover on a theory of a breach of the implied warranty of workmanlike construction. See O’Brien, 20 J. Corp. L. at 531-32 (“[B]y definition, latent defects are not discoverable by reasonable inspection. Thus, home buyers are left with the choice of relying on a builder-vendor’s expertise, or not buying a home at all. As one court stated, ‘(t)o apply the rule of caveat emptor to an inexperienced buyer, and in favor of a builder(-vendor) who is daily engaged in the business of building and selling houses is manifestly a denial of justice.’ ” (Internal citations omitted.)). Further, the purpose of the implied warranty of workmanlike construction is to ensure the home “ ‘will be fit for habitation,’ a matter that ‘depends upon the quality of the dwelling delivered’ not the status of the buyer.” Pridgen, § 18:19 (quoting Tusch Enters. v. Coffin, 113 Idaho 37, 740 P.2d 1022 (1987)).

The lack of privity between the subsequent purchaser and the builder-vendor is not an impediment, in these jurisdictions, to allowing a subsequent purchaser to recover on an implied-warranty claim. Though the implied warranty of workmanlike construction “ ‘has roots in the execution of the contract for sale,’ ” it exists independently of the contract by its very nature. O’Brien, 20 J. Corp. L. at 538 (citations omitted). Additionally, requiring privity to sue for a breach of an implied warranty has been disfavored in products liability cases in some jurisdictions. Many jurisdictions find similar justifications for extinguishing the privity requirement in the purchase of a home. See O’Brien, § 50:30 (“[T]he builder was in the same position as a manufacturer who sells an article which, if defective, will be imminently dangerous to persons who come in contact with it, ‘and liability is not limited to those with whom the manufacturer contracts.’ ” (quoting Leigh v. Wadsworth, 361 P.2d 849 (Okla.1961))). From a practical perspective, these jurisdictions note that many latent defects “are often not discoverable for some time after completion of the house. By the time the defects come to light, the original purchasers may have sold the home. For that reason, subsequent purchasers need protection for faulty construction.” Pridgen, § 18:19. Additionally, the reality is that our society is increasingly mobile, and as a result, a home’s ownership is likely to change hands a number of times. See O’Brien, 20 J. Corp. L. at 526 (noting that, at the time the note was written, “[njearly four million single-family used homes [were] sold in the United States every year”). A blanket rule prohibiting subsequent purchasers from recovering for a breach of the implied warranty of workmanlike construction would do injustice to those who purchase a home from a previous buyer shortly after the home was constructed when the subsequent purchaser later discovers that the home was defectively constructed. See id. at 538. Finally, one author posits that the doctrine of assignment allows for the transfer to the subsequent purchaser of the original purchaser’s right to sue for breach of the implied warranty of workmanlike construction. Id. at 538-40.

We believe that Iowa law should follow the modern trend allowing a subsequent purchaser to recover against a builder-vendor for a breach of the implied warranty of workmanlike construction. As in many jurisdictions, this court has eliminated the privity requirement in products liability cases raising a breach-of-implied-warranty claim. See State Farm Mut. Auto. Ins. Co. v. Andersorn-Weber, Inc., 252 Iowa 1289, 110 N.W.2d 449, 456 (Iowa 1961). As the court discussed in State Farm, the privity requirement was eliminated in other jurisdictions to “ ‘ameliorate the harsh doctrine of caveat emptor,’ ” and because “ ‘the [implied warranty] obligations on the part of the seller were imposed by operation of law, and did not depend for their existence upon express agreement of the parties,’ ” privity was not necessary. Id. at 454 (quoting Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 161 A.2d 69 (1960)). The same is true in a case such as the present one in which a home buyer raises an implied-warranty claim. Further, the implied warranty of workmanlike construction is a judicial creation and does not, in itself, arise from the language of any contract between the builder-vendor and the original purchaser. Thus, it is not extinguished upon the original purchaser’s sale of the home to a subsequent purchaser. The builder-vendor warrants that the home was constructed in a workmanlike manner, not that it is fit for any particular purpose the original owner intended. As such, there is no contractual justification for limiting recovery to the original purchaser.

Additionally, the public policy justifications supporting our decision to recede from the doctrine of caveat emptor in the sale of new homes by builder-vendors equally apply to the sale of used homes to subsequent purchasers. As discussed above, latent defects are, by definition, undiscoverable by reasonable inspection. Thus, the subsequent purchaser is in no better position to discover those defects than the original purchaser. It is inequitable to allow an original purchaser to recover while, simultaneously, prohibiting a subsequent purchaser from recovering for latent defects in homes that are the same age.

Walters contends that allowing the recovery the Speights seek would lead to increased costs for builders, increased claims, and increased home prices. However, builder-vendors are currently required to build a home in a good and workmanlike manner. The implied warranty of workmanlike construction reasonably puts the risk of shoddy construction on the builder-vendor. The builder-vendor’s risk is not increased by allowing subsequent purchasers to recover for the same latent defects for which an original purchaser could recover. As discussed more fully below, the statute of limitations and statute of repose are the same for original purchasers and subsequent purchasers, thus eliminating any increased time period within which a builder-vendor is subject to suit.

Walters argues that allowing subsequent purchasers to recover for a breach of the implied warranty of workmanlike construction would subject builder-vendors to unlimited liability; however, we are not persuaded. Iowa Code section 614.1(11) provides a safety net — a statute of repose for potential plaintiffs seeking to recover for breach of an implied warranty on an improvement to real property. A statute of repose works to “ ‘terminate[ ] any right of action after a specified time has elapsed, regardless of whether or not there has as yet been an injury.’ ” Bob McKiness Excavating & Grading, Inc. v. Morton, 507 N.W.2d 405, 408 (Iowa 1993) (quoting Hanson v. Williams County, 389 N.W.2d 319, 321 (N.D.1986)). Section 614.1(11) applies to an action for breach of the implied warranty of workmanlike construction in the purchase of a building. See id. at 409. That section provides

an action arising out of the unsafe or defective condition of an improvement to real property based on tort and implied warranty ... and founded on injury to property, real or personal, or injury to the person or wrongful death, shall not be brought more than fifteen years after the date on which occurred the act or omission of the defendant alleged in the action to have been the cause of the injury or death.

Iowa Code § 614.1(11). Pursuant to section 614.1(11), the period of repose begins to run on the date of the act or omission causing the injury. In cases involving the construction of a building, such as this home, that period begins upon completion of the construction of the building. See Bob McKiness Excavating & Grading, Inc., 507 N.W.2d at 409. As a result, builder-vendors are not liable on an implied-warranty claim after the statute of repose has run, regardless of who owns the home. In summary, we adopt what we view to be the emerging and better view that subsequent purchasers may recover for breach of implied warranty of workmanlike construction against a builder-vendor as recognized in Kirk for first-party purchasers. Subsequent purchasers, of course, may not be afforded greater rights of recovery than the original purchasers.

III. The Statute of Limitations.

The defendant contends that, even if we recognize a cause of action under these circumstances, it would be barred by the statute of limitations under Iowa Code section 614.1(4). The district court and the court of appeals agreed and concluded that this suit was time-barred. We disagree.

Under Iowa Code section 614.1,

[a]ctions may be brought within the times herein limited, respectively, after their causes accrue, and not afterwards, except when otherwise specially declared:
4. Unwritten contracts — injuries to property — fraud—other actions. Those founded on unwritten contracts, those brought for injuries to property, or for relief on the ground of fraud in cases heretofore solely cognizable in a court of chancery, and all other actions not otherwise provided for in this respect, within five years....

(Emphasis added.)

The question in this case is when the plaintiffs’ cause of action accrued. The defendant argues, and the district court held, that the cause of action accrued in 1995, when the house was sold by the defendant to the original purchasers. The Speights filed this suit in 2005, which was well beyond the five-year statute of limitations, according to the defendant. The defendant’s time-bar argument relies on Iowa Code section 554.2725(2), under which all actions for breach of implied warranty accrue at the time of delivery, not at the time the damage is discovered. The Speights counter that their claim is not based on the sale of goods and, therefore, section 554.2725(2), which is part of the Uniform Commercial Code (UCC), does not apply. We agree with the Speights’ position. Article 2 of the UCC applies only to transactions involving the sale of goods. Iowa Code § 554.2102. Goods are “all things ... which are movable at the time of identification to the contract for sale.” Id. § 554.2105(1). Clearly, the construction of a home is not a transaction for the sale of goods to which the UCC applies. Therefore, the limitation provided in section 554.2725(2) does not apply to cases such as the present one. We made that clear in Brown v. Ellison, 304 N.W.2d 197 (Iowa 1981), in which we distinguished cases involving breach of implied warranties of workmanship from those under the UCC.

We hold that the discovery rule is applicable to cases arising from express and implied warranties. This holding, of course, does not apply to situations in which statutes expressly provide that a cause of action accrues when the breach occurs, regardless of the aggrieved party’s lack of knowledge of the breach. See, e.g., Iowa Uniform Commercial Code, § 554.2725.... The trial court was, therefore, correct in applying the discovery rule.

Brown, 304 N.W.2d at 201.

We reject the defendant’s argument that the plaintiffs’ cause of action accrued in 1995 when the house was originally sold. Under the discovery rule, a cause of action does not accrue until the injured party has actual or imputed knowledge of the facts that would support a cause of action. We have said:

“Knowledge is imputed to a claimant when he gains information sufficient to alert a reasonable person of the need to investigate. As of that date he is on inquiry notice of all facts that would have been disclosed by a reasonably diligent investigation.”

Perkins v. HEA of Iowa, Inc., 651 N.W.2d 40, 44 (Iowa 2002) (quoting Ranney v. Parawax Co., 582 N.W.2d 152, 155 (Iowa 1998)). The Speights’ suit was filed on May 23, 2005, which was within five years of their purchase of the home. It cannot, therefore, be credibly argued that the plaintiffs had knowledge — either actual or imputed — of the defect more than five years before their suit was filed because they did not even own the property at that time.

We adopt and apply the doctrine of implied warranty of workmanlike construction to subsequent, as well as initial, purchasers. We conclude as a matter of law that the plaintiffs could not have gained actual or imputed knowledge of the defect in their home more than five years prior to commencing this action, and their suit is therefore not time-barred under Iowa Code section 614.1(4). We vacate the decision of the court of appeals, reverse the judgment of the district court, and remand for further proceedings.

DECISION OF COURT OF APPEALS VACATED; JUDGMENT OF DISTRICT COURT REVERSED; CASE REMANDED.

All justices concur except APPEL, J., who takes no part.

      . See, e.g., Lee v. Clark & Assocs. Real Estate, Inc., 512 So.2d 42 (Ala.1987); Aas v. Super. Ct., 24 Cal.4th 627, 101 Cal.Rptr.2d 718, 12 P.3d 1125 (2000) (superseded by statute on other grounds); Cosmopolitan Homes, Inc. v. Weller, 663 P.2d 1041 (Colo.1983); Coburn v.

        Lenox Homes, Inc., 173 Conn. 567, 378 A.2d 599 (1977); Council of Unit Owners of Sea Colony East, Phases III, IV, VI & VII v. Carl M. Freeman Assocs., Inc., 1989 WL 48568 (Del.Super.1989); Drexel Props., Inc. v. Bay Colony Club Condo., Inc., 406 So.2d 515 (Fla.Dist.Ct.App.1981), disapproved of on other grounds by Casa Clara Condo. Ass’n, Inc. v. Charley Toppino & Sons, Inc., 620 So.2d 1244 (Fla.1993); Dunant v. Wilmock, Inc., 176 Ga.App. 48, 335 S.E.2d 162 (1985); Miles v. Love, 1 Kan.App.2d 630, 573 P.2d 622 (1977); Real Estate Mktg., Inc. v. Franz, 885 S.W.2d 921 (Ky.1994); Tereault v. Palmer, 413 N.W.2d 283 (Minn.Ct.App.1987); John H. Armbruster & Co. v. Hayden Co.—Builder Developer, Inc., 622 S.W.2d 704 (Mo.Ct.App.1981); Butler v. Caldwell & Cook, Inc., 122 A.D.2d 559, 505 N.Y.S.2d 288 (1986); Brown v. Fowler, 279 N.W.2d 907 (S.D.1979); Briggs v. Riversound Ltd. P'ship, 942 S.W.2d 529 (Tenn.Ct.App.1996); Schafir v. Harrigan, 879 P.2d 1384 (Utah Ct.App.1994); Northridge Co. v. W.R. Grace & Co., 162 Wis.2d 918, 471 N.W.2d 179 (1991).

      . See, e.g., Richards v. Powercraft Homes, Inc., 139 Ariz. 242, 678 P.2d 427 (1984); Blagg v. Fred Hunt Co., 272 Ark. 185, 612 S.W.2d 321 (1981); Tusch Enters. v. Coffin, 113 Idaho 37, 740 P.2d 1022 (1987); Redarowicz v. Ohlendorf, 92 Ill.2d 171, 65 Ill.Dec. 411, 441 N.E.2d 324 (1982); Barnes v. Mac Brown & Co., 264 Ind. 227, 342 N.E.2d 619 (1976); Degeneres v. Burgess, 486 So.2d 769 (La.Ct.App.1986); Dunelawn Owners’ Ass’n v. Gendreau, 750 A.2d 591 (Me.2000) (citing 33 M.R.S.A. § 1604-113(f)); Keyes v. Guy Bailey Homes, Inc., 439 So.2d 670 (Miss.1983); Moglia v. McNeil Co., 270 Neb. 241, 700 N.W.2d 608 (2005); Lempke v. Dagenais, 130 N.H. 782, 547 A.2d 290 (1988); Hermes v. Staiano, 181 N.J.Super. 424, 437 A.2d 925 (L.Div.1981); Gaito v. Auman, 313 N.C. 243, 327 S.E.2d 870 (1985); Baddour v. Fox, 2004 WL 1327925 (Ohio Ct.App.2004); Elden v. Simmons, 631 P.2d 739 (Okla.1981 ); Nichols v. R.R. Beaufort & Assocs., Inc., 727 A.2d 174 (R.I.1999); Terlinde v. Neely, 275 S.C. 395, 271 S.E.2d 768 (1980); Gupta v. Ritter Homes, Inc., 646 S.W.2d 168 (Tex.1983), overruled in relevant part in Amstadt v. U.S. Brass Corp., 919 S.W.2d 644 (Tex.1996); Sewell v. Gregory, 179 W.Va. 585, 371 S.E.2d 82 (1988); Moxley v. Laramie Builders, Inc., 600 P.2d 733 (Wyo.1979).


author: BAKER, J.

text:
    STATE of Iowa, Plaintiff-Appellee v. Karen Suzanne MILOM, Defendant-Appellant.
    No. 06-2111.
    Court of Appeals of Iowa.
    Nov. 15, 2007.

      Mark C. Smith, State Appellate Defender, and Robert Ranschau, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Thomas Tauber, Assistant Attorney General, Mark Tremmel, County Attorney, and Ed Harvey, Special Assistant County Attorney, for appellee.
    Considered by SACKETT, C.J., and VAITHESWARAN and BAKER, JJ.
   BAKER, J.

Karen Milom appeals from her convictions for conspiracy to manufacture methamphetamine, in violation of Iowa Code section 124.401(l)(c)(6) (2005), and possession of a precursor, in violation of section 124.401(4). We affirm.

I. Background Facts and Proceedings.

On August 30, 2005, police received information from a concerned citizen about a possible methamphetamine lab site along a country road. Investigation of the site by officers revealed items that had been used to manufacture methamphetamine. In particular, the officers discovered two Wal-Mart receipts dated August 17, one of which indicated the purchase of lithium batteries and the other which indicated the purchase of three cans of starter fluid. The two purchases indicated they were made within minutes of each other at the same store.

An officer subsequently took the receipts to Wal-Mart and viewed a copy of videotape that recorded the transactions memorialized in the receipts. The tape showed two women making the purchases at different checkout counters. A different videotape showed the women entering the same vehicle and driving away in the same vehicle, which the officer observed was a Pontiac 6000 with a missing hubcap.

Further investigation led the officers to Beverly Burk, who they believed had purchased the starter fluid. After interviewing Burk, officers were directed to Karen Milom, who Burk told officers had asked her to buy the starter fluid. Officers showed Milom the videotape. Initially, she denied it was her on the tape, but she later said she was buying batteries for her son’s camera. After finding that the batteries would not have fit her son’s camera, Milom claimed her son bought a new camera.

Based on this investigation, the State charged Milom with conspiracy to manufacture methamphetamine and possession of a precursor. Following a trial, the jury found her guilty of both counts. The court sentenced Milom to indeterminate terms of ten and five years, to be served concurrently. Milom appeals from this conviction, claiming her counsel was ineffective in failing to preserve a challenge to the sufficiency of the evidence and that the district court erred in overruling her motion for new trial.

II. Ineffective Assistance of Counsel.

Milom asserts “trial counsel provided ineffective assistance of counsel by failing to make a specific motion in arrest of judgment.” With regard to the conspiracy conviction, she claims there was a lack of “direct evidence” that she entered into an express agreement with anyone. With regard to the possession of a precursor conviction, she argues the State failed to produce evidence that she had the intent to use the precursor herself to manufacture a controlled substance.

In an ineffective-assistance-of-counsel claim we review de novo the totality of relevant circumstances. State v. Risdal, 404 N.W.2d 130, 131 (Iowa 1987). An ineffective-assistance-of-counsel claim falls within an exception to the general rule that a party must preserve error in the district court. State v. Doggett, 687 N.W.2d 97, 100 (Iowa 2004). While these claims are normally preserved for postcon-viction relief, “we will consider the merits of such a claim on direct appeal if the record is adequate.” Id. The record is adequate in this case.

To prove ineffective assistance of counsel, the appellant must show that (1) counsel failed to perform an essential duty, and (2) prejudice resulted. See State v. Simmons, 714 N.W.2d 264, 276 (Iowa 2006). Whether counsel failed to perform an essential duty is “measured against the standard of a reasonably competent practitioner with the presumption that the attorney performed his duties in a competent manner.” Doggett, 687 N.W.2d at 100. Whether prejudice resulted depends on finding “a reasonable probability that, but for the counsel’s unprofessional errors, the result of the proceeding would have been different.” State v. Hopkins, 576 N.W.2d 374, 378 (Iowa 1998).

Evidence is sufficient to withstand a motion for judgment of acquittal when, viewing the evidence in the light most favorable to the State and drawing all reasonable inferences in the State’s favor, “there is substantial evidence in the record to support a finding of the challenged element.” State v. Reynolds, 670 N.W.2d 405, 409 (Iowa 2003). Substantial evidence means evidence that “could convince a rational fact finder that the defendant is guilty beyond a reasonable doubt.” Id. at 410. When the record contains substantial evidence of guilt, the reviewing court is bound on appeal. State v. Button, 622 N.W.2d 480, 483 (Iowa 2001).

A. Conspiracy to Manufacture.

Upon our review of the record, we conclude substantial evidence supports the jury’s finding that Milom entered into an agreement with someone to manufacture methamphetamine, and that therefore counsel did not provide ineffective assistance in failing to raise a challenge to the sufficiency of the evidence on this ground. The jury was instructed that in order to find Milom guilty on this count, the State had to prove the following:

1.On or about August 17, 2005 in Wa-pello County, Iowa the defendant agreed with one or more persons that one or more of them would
A. commit the offense of manufacturing methamphetamine; or
B. attempt to commit the manufacture of methamphetamine.
2. The defendant entered into the agreement with the specific intent to promote or facilitate the manufacture of methamphetamine.
3. The defendant or another person involved in the agreement committed an overt act to further the purpose of the agreement.

“A conspiracy is a combination or agreement between two or more persons to do or accomplish a criminal or unlawful act, or to do a lawful act in an unlawful manner.” State v. Ross, 573 N.W.2d 906, 914 (Iowa 1998). An agreement may be established by either direct or circumstantial evidence. Id. “A tacit understanding-one inherent in and inferred from the circumstances-is sufficient to sustain a conspiracy conviction.” State v. Speicher, 625 N.W.2d 738, 742 (Iowa 2001).

We believe the jury could reasonably have inferred from the circumstances an agreement between Milom and Burk to manufacture methamphetamine. Milom is Burk’s aunt. They apparently arrived at Wal-Mart in the same vehicle and left together in that same vehicle. Milom admitted they purchased the items, which are commonly used in the methamphetamine manufacturing process, within minutes of each other. According to the testimony of police officer Tom McAndrew, Milom’s and Burk’s actions correspond to the behaviors typically exhibited by individuals who are purchasing the ingredients for methamphetamine.

Thirteen days after Milom’s and Burk’s purchases, police officers were alerted to a clandestine, road-side methamphetamine laboratory. At that site, officers discovered the receipts corresponding to the purchases they had earlier made at Wal-Mart. Three cans of Prestone starter fluid were located at the site. This matched the brand and quantity purchased by Burk. While no lithium batteries such as those purchased by Milom were located, subsequent lab analysis proved lithium to have been used in the process. Officer McAndrew opined that the lab had been there for “more than a couple days.”

Based on this evidence, a reasonable juror could have inferred that Milom entered into an agreement with her niece to manufacture or attempt to manufacture methamphetamine with the items purchased at Wal-Mart. The lab was discovered a short time following the purchases, and their actions mirrored those of other individuals who have also conspired to manufacture the drug. We affirm this conviction.

B. Possession of a Precursor With Intent to Manufacture. We next address Milom’s contention that the evidence was insufficient to prove she possessed a precursor with the intent to manufacture methamphetamine. In particular, she claims “the intent to manufacture must be personal to the defendant.” Because the State did not present substantial evidence that Milom intended to manufacture the drug herself, she asks that we reverse her conviction.

In State v. Truesdell, 679 N.W.2d 611, 614 (Iowa 2004), our supreme court addressed a similar contention with regard to Iowa Code section 124.401(4) (2001), which at that time required the State to prove the defendant possessed the precursors “with the intent to use the product to manufacture any controlled substance.” In that case, the defendant had been arrested in the possession of a very large quantity of cold medication that contained an essential ingredient for the manufacture of methamphetamine. Id. The court held that “the statute under which Truesdell was charged is directed at the intent of the possessor to use the product to manufacture a controlled substance, not the mere knowledge or belief of the possessor that the product would be used to manufacture a controlled substance.” Id. at 618 (emphasis added). It therefore reversed the conviction.

The court, however, also recognized that after the defendant in Truesdell had been charged with the crime, our legislature amended section 124.401(4). Under the amendment, which became effective July 1, 2004, the intent element was changed to prohibit possession of a product “with the intent that the product be used to manufacture any controlled substance.” Id. at 617. The legislature removed the phrase “to use the product” and replaced it with the phrase “that the product be used.” Id. This is the language under which Milom was convicted.

As the court in Truesdell recognized, a change in a statute can indicate either intent by the legislature to change the law or intent to clarify the original statute. Tiano v. Palmer, 621 N.W.2d 420, 423 (Iowa 2001). Generally, a material modification of the language of a statute gives rise to “a presumption that a change in the law was intended.” Midwest Auto. III, LLC v. Iowa Dep’t of Transp., 646 N.W.2d 417, 425 (Iowa 2002). The existence of this presumption is enhanced “when the amendment follows a contrary ... judicial interpretation of an unambiguous statute.” Id.

We conclude the unmistakable intent of the legislature in amending section 124.401 was to alter the intent element. Under the statute’s new reading, the State could now show guilt by establishing that Milom possessed lithium with the intent that someone, not necessarily herself, would manufacture methamphetamine. A reasonable juror clearly could have found that Milom intended for someone to produce methamphetamine with her lithium batteries. A clandestine lab was discovered that, along with the many ingredients of the methamphetamine making process, had the receipt from Milom’s purchase of lithium batteries. As substantial evidence supports the conviction of this crime, counsel was not ineffective in failing to challenge the sufficiency of the evidence based on Truesdell. See State v. Leckington, 713 N.W.2d 208, 217-18 (Iowa 2006) (counsel not ineffective for failing to pursue a meritless issue).

III. Motion for New Trial.

Milom further maintains the court erred in overruling her motion for new trial. We review the denial of new trial motions for abuse of discretion. State v. Reeves, 670 N.W.2d 199, 202 (Iowa 2003). Abuse of discretion means the trial court exercised its discretion “on grounds or for reasons clearly untenable or to an extent clearly unreasonable.” State v. Axiotis, 569 N.W.2d 813, 815 (Iowa 1997).

A trial court may grant a new trial “[w]hen the verdict is contrary to law or evidence.” Iowa R.Crim. P. 2.24(2)(6)(6). “Contrary to ... [the] evidence” means “contrary to the weight of the evidence.” State v. Ellis, 578 N.W.2d 655, 659 (Iowa 1998). A verdict is contrary to the weight of the evidence where “a greater amount of the evidence supports one side of an issue or cause than the other.” Id. at 658. The weight of evidence standard is distinguishable from the sufficiency of the evidence standard in that it is broader. State v. Nitcher, 720 N.W.2d 547, 559 (Iowa 2006).

We conclude the court did not abuse its discretion in rejecting Milom’s claim that the verdicts were contrary to the weight of the evidence. As was already set forth in the previous divisions of this opinion, substantial evidence supports the convictions. While the evidence of the conspiracy may have been circumstantial, rather than direct, the evidence was not based merely on speculation or conjecture. Furthermore, due to inconsistent stories given by Milom regarding the reason for her purchase of lithium batteries, her credibility was called into question. The State’s case was corroborated in many respects. We therefore affirm Milom’s convictions.

AFFIRMED.

      . Lithium and starter fluid are two ingredients in the manufacture of methamphetamine. Although officers did not locate any batteries at the scene, subsequent lab analysis indicated that lithium had been used in the manufacturing process that had taken place.

      . The court noted this construction of the statute was the same as this court had taken in the previous unpublished decision of State v. Pickerell, No. 01-1808, 662 N.W.2d 371 (Iowa Ct.App.2003). The court also noted that the amendment by the legislature appeared to be in direct response to this case.