author: TERNUS, Justice.

text:
    Maria ALVAREZ, Appellant, v. IBP, INC., Appellee.
    No. 04-0865.
    Supreme Court of Iowa.
    April 29, 2005.
    Randall P. Schueller of Hopkins and Hu-ebner, P.C., Des Moines, for appellant.
    Todd C. Beresford, Dakota Dunes, South Dakota, for appellee.
   TERNUS, Justice.

Based on the briefs filed by the parties, this case appears to be identical to another appeal recently decided by this court, Ma rovec v. PMX Industries, 693 N.W.2d 779 (Iowa 2005). Just like the appellant in Marovec, the appellant in the present appeal, Maria Alvarez, claims she inadvertently failed to file an appeal brief within the time prescribed by agency rule in her intra-agency appeal of a deputy workers’ compensation commissioner’s decision on her claim for benefits. Alvarez alleges that as a consequence, another deputy workers’ compensation commissioner, acting on behalf of the workers’ compensation commissioner, dismissed her appeal, the same action' taken by the commissioner in the Marovec case. The district court record shows ‘ Alvarez sought judicial review and the district court affirmed the agency’s dismissal.

Alvarez then brought this appeal. We are unable to reach the merits of her appeal, however, because we have no agency record upon which to base our review, not even the deputy’s ruling that Alvarez seeks to overturn.

I. Iowa Code section 86.26 (2003) places responsibility for providing the agency record to the district court on the party seeking judicial review:

[TJhe workers’ compensation commissioner shall transmit to the reviewing court the original or a certified copy of the entire record of the contested case which is the subject of the petition [for judicial review] within thirty days after receiving written notice from the party filing the petition that a petition for judicial review has been filed....

Iowa Code § 86.26 (emphasis added). No written notice was given in the present case, and the commissioner did not transmit the agency record to the district court. Notwithstanding the complete absence of a record, the parties briefed the issue of the propriety of the deputy’s dismissal, and the trial court issued a ruling affirming that dismissal.

Upon the claimant’s appeal to this court, the district court transmitted the district court record to the clerk of the supreme court. See Iowa R.App. P. 6.11 (providing that clerk of district court shall transmit district court record to the supreme court). When the deputy clerk of the supreme court received the district court record, she determined that the district court record did not include the original or a certified copy of the agency record as required by Iowa Code section 86.26. In fact, nothing from the agency record was included in the district court file provided to the supreme court clerk’s office.

Based on the absence of any agency documents in the district court file, this court issued an order that stated in relevant part:

Within fourteen days from the date of the filing of this order, the parties shall file and serve status reports on the question of whether the agency record was made a part of the district court record. If the present district court record omits any necessary material that the district court actually had before it when entering its ruling, the parties shall use the procedure provided by Iowa Rule of Appellate Procedure 6.10(4) to correct such omission.

In response to this order, the parties filed a joint status report stating that the agency record had not been provided to the district court, and the district court did not have the record in its possession when the court issued its ruling on judicial review. The parties suggested, however, that “the district court was not missing any material portion of the record as the facts were stipulated to by both parties and the only issue in this case is whether a dismissal by the agency was proper after the claimant’s brief was filed after the deadline.” (Our review of the district court file reveals no stipulation of facts as such by the parties. Therefore, we assume the reference in the parties’ joint status report to stipulated facts rests on the absence of any noted factual dispute in the parties’ district court briefs.) The parties further, stated that the agency record is not material to a decision in this case and that this court should proceed to decide the appeal without the record. In the alternative, the parties ask that the case be remanded to the district court so it can issue a ruling with the benefit of the record.

Just prior to filing their joint status report, the parties asked the workers’ compensation commissioner to forward the agency record to the district court, which the commissioner did. The clerk of the district court has now transmitted the agency record to the clerk of the supreme court. In addition, the parties have included numerous pleadings and orders from the agency proceedings in their appendix on appeal.

II. Due to the procedural irregularities in this case, the dispositive issue has become the impact of the claimant’s failure to have the agency record made a part of the district court record on judicial review. This issue is dispositive because the appellate courts cannot consider materials that were not before the district court when that court entered its judgment. See Iowa R.App. P. 6.10(1), (“The original papers and exhibits filed in the district court, the transcript of proceedings, if any, and a certified copy of the docket and court calendar entries prepared by the clerk of the district court shall constitute the record on appeal in all cases.”); see also Bd. of Directors v. Banke, 498 N.W.2d 697, 700 n. 2 (Iowa 1993) (“Iowa Rule of Appellate Procedure 10(a) [now rule 6.10(1)] also restricts judicial review to the record considered by the trial court.”). The parties’ inclusion of portions of the agency record in the appendix does not avoid the restrictions of rule 6.10(1). Furthermore, the parties’ action in belatedly setting in motion the process to have the agency record provided to the clerk of the supreme court cannot be considered a supplementation or correction of the record under our appellate rules. See Iowa R.App. P. 6.10(4) (providing procedure for supplementation or correction of record). Documents that were never before the district court cannot be added to the record on appeal. See Iowa R.App. P. 6.10(1) (restricting record on appeal to record in district court); Williams v. City of Northport, 557 So.2d 1272, 1273 (AIa.Civ.App.1989) (holding rule allowing correction of record could not properly be used to include documents in record on appeal that were never part of the record below).

Having concluded the agency record is not properly before us, we are left with nothing to review. Although the district court’s ruling is part of the record, it is' impossible to determine whether that court correctly decided the deputy’s ruling was proper when there is absolutely no record of what occurred at the agency level. Although the parties recite facts in their appellate briefs, factual assertions must be supported by references to the record. See Iowa R.App. P. 6.14(l)(cZ) (“All portions of the statement [of the case in the briefs] shall be supported by appropriate references to the record or the appendix. ...”). This court will not consider facts for which there is no record support. See Estate of Leonard v. Swift, 656 N.W.2d 132, 147 n. 4 (Iowa 2003); 5 Am. Jur.2d Appellate Review § 486, at 209 (1995) (“An appellate court, generally, cannot consider facts which are not part of the record on appeal.”).

Finally, we do not think the parties’ “stipulation” to the facts saves this appeal, nor does the employer’s failure to object to the absence of a record. In Stone Con tainer Corp. v. Castle, 657 N.W.2d 485 (Iowa 2003), this court decided an appeal from a judicial review decision in a workers’ compensation case even though the agency record was not complete due to the deputy’s inadvertent failure to tape-record the full hearing. 657 N.W.2d at 487. Because the employer had not raised the absence of a record to support the facts upon which the claimant relied until the matter was briefed on appeal and had never disputed the accuracy of those facts, we found the employer’s challenge was too late, and we proceeded to determine the issues raised by the claimant. Id.

' In contrast, the missing record- here is not a minor or even partial omission. In the present case, the omission is not only substantial, it is total. While transmission of less than the full agency record would not necessarily mandate dismissal of an appeal, there must at least be substantial compliance with the law requiring such transmittal and a showing of no prejudice. Cf 2 Am.Jur.2d Administrative Law § 546, at 466 (2004) (stating failure to timely transmit record would not necessarily require dismissal of petition for judicial review if there was substantial compliance and no prejudice). Neither circumstance exists here. First, there was a total failure to comply with the statutes and rules governing the record in judicial review proceedings and appeals. Second, notwithstanding the employer’s failure to object, where there has been a complete failure to provide the agency record to the reviewing courts, the system of judicial review itself is prejudiced. Reviewing courts cannot issue credible and reliable opinions when there is no agency action presented in the record for review. See Hayes v. Indus. Comm’n, 383 Ill. 272, 48 N.E.2d 940, 942 (1943); Webster v. Ind. Dep’t of Pub. Instruction, 132 Ind.App. 595, 178 N.E.2d 909, 910 (1962), overruled on other grounds by McKinley v. Review Bd., 152 Ind.App. 269, 283 N.E.2d 395, 396-97 (1972).

That brings us to the final issue: what is the consequence of the claimant’s failure to provide this court with a record that would permit an informed consideration of the issue presented: affirmance, dismissal, or remand? Coincidentally, we have addressed this precise question under very similar circumstances in In re F.W.S., 698 N.W.2d 134 (Iowa 2005), also decided today. In that case the appellant challenged his involuntary commitment by a magistrate. In re F.W.S., 698 N.W.2d at 134. The magistrate’s commitment order had been affirmed, as modified, by the district court. Id. Neither court had made a record of the proceedings. Id. On appeal the appellant failed to follow the required procedure for preparing and submitting a record when no. trial transcript or record is available. Id. (citing Iowa R.App. P. 6.10(3)). Due to the substantial deficit in the record, we affirmed the decision of the district court. Id. at 135; accord Hayes, 48 N.E.2d at 942 (“Where the abstract does not show any judgment entered by the trial court, the failure of a party bringing a case to [the supreme] court to furnish a proper record ... is ground for affirmance.”); 5 Am.Jur.2d Appellate Review § 488, at 210 (“If the appellant fails to [present a record to the appellate court,] the trial court will be affirmed, at least where-its judgment is not fundamentally erroneous on its face. A case will hot normally be remanded in order to correct a deficiency in the record which the appellant should have remedied.”).

The same result is warranted here. Therefore, we affirm the district court’s ruling on judicial review.

AFFIRMED.


source: Caselaw Access Project

author: TERNUS, Justice. LAVORATO, Chief Justice

license: Public Domain

text:
    STATE of Iowa, Appellee, v. Argilee HENDERSON, Appellant.
    No. 03-0625.
    Supreme Court of Iowa.
    May 6, 2005.

      Linda Del Gallo, State Appellate Defender, and James G. Tomka, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, Thomas S. Mullin, County Attorney, and Mark Campbell, Assistant County Attorney, for appellee.
   TERNUS, Justice.

The defendant, Argilee Henderson, appeals from a judgment of conviction after a jury found she was guilty of possession of marijuana and possession of methamphetamine. She claims the trial court erred in failing to grant her motion for judgment of acquittal on grounds the evidence was insufficient to establish that she possessed the drugs. Alternatively, Henderson argues she is entitled to a new trial because the court erred in admitting evidence of her prior conviction for possession of marijuana.

Henderson’s appeal was transferred to the court of appeals, where her convictions were affirmed. That court concluded there was sufficient evidence to prove Henderson had dominion and control over the drugs. In addition, the court of appeals held the district court did not abuse its discretion in admitting evidence of Henderson’s prior drug conviction. The court ruled this evidence was relevant to prove Henderson knowingly possessed marijuana, and the probative value of the prior-acts evidence was not outweighed by the danger of unfair prejudice.

This court granted the defendant’s application for further review. Upon our consideration of the parties’ arguments and the controlling legal principles, we vacate the court of appeals decision, reverse the district court judgment, and remand the case for a new trial. Although we think the evidence was sufficient to prove the defendant possessed the illegal substances, we conclude, the trial court abused its discretion in admitting evidence of Henderson’s prior drug offense. Because this error was not harmless, a new trial is necessary.

I. Sufficiency of the Evidence.

The defendant asserts the trial court erred in failing to grant her motion for judgment of acquittal based on the insufficiency of the evidence to establish that the marijuana and methamphetamine found by the police in her apartment belonged to her. See generally State v. Allen, 304 N.W.2d 203, 206 (Iowa 1981). (“A motion for judgment of acquittal is a means for challenging the sufficiency of the evidence to sustain a conviction....”). The standards' governing our review of such claims are well established:

We review a suffieiency-of-the-evidence ruling for correction of errors of law. If the verdict is supported by substantial evidence, we will uphold a finding of guilt. “ ‘Substantial evidence’ is that upon which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.” In conducting our review, we consider all the evidence, that which detracts from the verdict, as well .as that supporting the verdict. We view the evidence in the light most favorable to the State.

State v. Hagedorn, 679 N.W.2d 666, 668-69 (Iowa 2004) (citations omitted).

Viewed in a light most favorable to the State, the jury could have found the following facts. On August 22, 2002, Woodbury .County Deputy Robert Aspleaf served a writ of removal and possession at Henderson’s apartment. (Henderson was the only person on the lease.) The writ required Aspleaf to remove the defendant and her possessions from the apartment and place the landlord in- possession of the premises. Aspleaf was- accompanied by the landlord and three helpers brought by the landlord.

When this group arrived at Henderson’s apartment, the deputy knocked loudly several times, but no one answered. The landlord’s master key did not work because the door had been locked from the inside. Consequently, a helper forcibly kicked the door open, revealing the defendant standing on the other side of the doorway. Over profanity-laced protests from Henderson, the landlord and his helpers began to pack up Henderson’s belongings. The deputy attempted to calm her down, but the defendant’s agitation escalated to the point where she pushed one of the men who was packing her electronic components. Upon being informed she was under arrest, Henderson retreated to the only bedroom in the apartment and slammed the door shut. The deputy followed her and placed her under arrest for interference with official acts.

After other officers arrived to take Henderson to the police station, the deputy began to look at the items in the apartment to determine whether there was anything that should not be set out on the curb, for example, knives, weapons, or pornographic materials. During this process he discovered the following contraband: (1) on top of the refrigerator in the kitchen, a clear plastic bag containing what appeared to be marijuana; (2) on the coffee table in the living room, a’ homemade “pot pipe”, an ashtray with pieces of a blunt in it, and two clear plastic bags, one with a yellowish residue and one with remnants of plant material in it; (3) in the bedroom between the mattresses, a small silver tube of the type used to smoke methamphetamine; (4) in the same bedroom on the headboard, a similar, but larger-diameter, tube with burn marks on the ends, a homemade pipe or smoking device for marijuana made of tinfoil with burn residue, and a clear plastic bag containing what appeared to be methamphetamine; and (5) in an end table in the same bedroom, two bags containing what appeared to be marijuana, a forceps commonly used to smoke marijuana, a small piece of tinfoil commonly used to smoke methamphetamine with burn marks on it, and two outside barrels of ink pens that could be used to snort methamphetamine. The substance found on the refrigerator and the substance found on the headboard were tested and confirmed to be marijuana and methamphetamine, respectively. These items provided the basis for Henderson’s prosecution for two counts of possession of a controlled substance in violation of Iowa Code section 124.401(5) (2001).

Deputy Aspleaf testified at trial that another woman was present in the apartment during these events, Lisa Williams. Williams was cooperative and did not attempt to obstruct the eviction process. She told the deputy that she had only been staying at the apartment for a few days after having a fight with her mother. When the deputy asked her if any of the drugs they found were hers, Williams stated they were not.

The deputy also testified that both Henderson and Williams had prior convictions for possession of marijuana. Henderson had been convicted of this offense in 1998, and Williams’ conviction was in 1991.

In addressing the sufficiency of this evidence, we first examine the State’s burden of proof: “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.” State v. Bash, 670 N.W.2d 135, 137 (Iowa 2003). Henderson challenges the sufficiency of the State’s proof on the first element: her dominion and control over the marijuana and the methamphetamine.

Because the contraband was not found on the defendant’s person, the State sought to prove Henderson’s constructive possession of the illegal substances. See id. at 138 (“Possession can be either actual or constructive.”)- “Constructive possession occurs when the defendant has knowledge of the presence of the controlled substance and has the authority or right to maintain control of it.” Id. “The existence of constructive possession turns on the peculiar facts of each case.” State v. Webb, 648 N.W.2d 72, 79 (Iowa 2002).

Notwithstanding the fact-specific inquiry on this element, inferences are often used to prove constructive possession. See id. at 76-79 (discussing history of inferences supporting constructive possession). One such inference of dominion and control arises when the premises on which the illegal substances are found are in the exclusive possession of the accused. State v. McDowell, 622 N.W.2d 305, 308 (Iowa 2001). That inference is of no assistance to the State here, however, because at the time of this incident, the premises were shared by Henderson and Williams. See Bash, 670 N.W.2d at 138; State v. Graves, 668 N.W.2d 860, 877-78 (Iowa 2003). Under these circumstances, the defendant’s authority or right to maintain control of the drugs must be established by proof in addition to the fact that the drugs were found in the defendant’s apartment. See Bash, 67Ó N.W.2d at 138; Webb, 648 N.W.2d at 77, 79. We think the record contains such proof.

There was no suggestion in the evidence that the contraband found in Henderson’s apartment belonged to anyone other than Henderson or Williams. We think the jury could have concluded from the very disparate reactions of these individuals to the presence of the deputy on August 22, 2002 that the drugs . belonged to Henderson. When the deputy’s party entered Henderson’s apartment, they were greeted by Henderson’s defiant opposition to their presence. She swore at them and insisted that she would move her own belongings. She yelled at them to leave and physically interfered with their efforts to pack her property. Eventually, she retreated to the bedroom,.specifically to the side of the bed where the methamphetamine was found. In contrast, Williams cooperated with the persons moving the defendant’s personal belongings and even carried some of Henderson’s clothes to Henderson’s car.

Henderson’s conduct implied guilty knowledge; Williams’ conduct did not. See Webb, 648 N.W.2d at 79 (stating a defendant’s incriminating actions when drugs are discovered support a finding that defendant had right to exercise control over drugs); State v. Cox, 500 N.W.2d 23, 25 (Iowa 1993) (“Admissions may be implied by the conduct of the defendant subsequent to a crime ... when such conduct indicates a consciousness of guilt.”). Certainly one could also explain the defendant’s response to the situation by the fact that she was the object of a forcible eviction from her residence. On the other hand, Williams’ obliging manner was not consistent with one who had something to hide. Moreover, Williams denied the drugs were hers.

Other facts also support a finding that the drugs belonged to Henderson. Illegal substances were found throughout the apartment, together with multiple items of drug paraphernalia, some of which showed signs of use. Although some of these items were in plain view, some were in drawers, or in the case of a pipe used to smoke methamphetamine, between the mattresses. The quantity of drugs and drug paraphernalia in the premises, their widespread disbursement throughout the apartment, and their location in places that would not ordinarily be used by a guest suggest that these items did not belong to a temporary visitor, but rather to the person residing there.

The defendant relies on our decision in Webb, where this court held there was insufficient evidence to connect the defendant to the illegal substances found in his apartment. 648 N.W.2d at 82. That case is easily distinguished; In Webb, the defendant shared the residence where drugs were found with two other individuals. Id. at 75. Although the other occupants of the residence were home at the time of the officers’ arrival on the scene, Webb did not get home until the search was well underway. Id. When he did arrive, he exhibited no suspicious behavior. Id. at 75, 80. Unlike the case before us, there were no circumstances that showed the drugs belonged to the defendant as opposed to the other residents of the apartment.

We conclude there is sufficient evidence in the present case to support a finding that Henderson had .the authority or right to exercise dominion , and control over the contraband found in her apartment. Therefore, the trial court did not err in denying the defendant’s motion for judgment of acquittal.

II. Admission of Evidence of Prior Acts.

Prior to trial, the defendant filed a motion in limine to preclude the State from offering evidénee of her conviction for possession of'marijuana four years before she was charged with the present offense. Henderson’s attorney argued the evidence was irrelevant, and even if relevant, its relevancy was substantially outweighed by the danger of unfair prejudice. At a'hearing on this motion, the State contended the evidence’ was offered to establish Henderson’s knowledge that the substance on top of her' refrigerator was marijuana. See Bash, 670 N.W.2d at 137 (stating, in a possession case, that State must prove the defendant “had knowledge that the material was a controlled substance”). -In response, Henderson’s trial counsel said: “I don’t believe anyone is saying Miss Henderson doesn’t know what marijuana is. She is saying the marijuana in her residence wasn’t hers.” The district court reserved ruling on this issue until trial. At that time the defendant’s objection to the prior-acts evidence was overruled without explanation.

“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) (citation omitted). Even though an abuse of discretion may have occurred, reversal is not required if the court’s erroneous admission of evidence was harmless. State v. Sullivan, 679 N.W.2d 19, 29 (Iowa 2004); Iowa R. Evid. 5.103(a).

“Evidence which is not relevant is not admissible.” Iowa R. Evid. 5.402. Relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Iowa R. Evid. 5.401. Even relevant evidence may be excluded, however, if its probative value is substantially outweighed by the danger of unfair prejudice. Iowa R. Evid. 5.403. “[PJrobative value” gauges the strength and force of the tendency of the challenged evidence to make the consequential fact more or less probable. State v. Plaster, 424 N.W.2d 226, 231 (Iowa 1988). Evidence that “appeals to the jury’s sympathies, arouses its sense of horror, provokes its instinct to punish, or triggers other mainsprings of human action [that] may cause a jury to base its decision on something other than the established propositions in the case” is unfairly prejudicial. Id. at 231-32 (citations omitted); see also 2 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence § 403.04[l][b], at 403-38 to 403-42 (Joseph M. McLaughlin ed., 2004). When the State seeks to offer evidence of prior acts, the prosecutor must “articulate a valid, noncharacter theory of admissibility for admission.” Sullivan, 679 N.W.2d at 28. That is because “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith.” Iowa R. Evid. 5.404(6).

As noted above, the prosecutor offered the challenged evidence to show the defendant’s knowledge of the nature of the substance found in her kitchen. Although the defendant contends her prior marijuana conviction does not tend to demonstrate she knew what the drug was, we disagree. We think her prior conviction makes it more probable that Henderson knew the material on top of her refrigerator was a controlled substance, namely, marijuana. See State v. Hall, 41 Wash.2d 446, 249 P.2d 769, 772 (1952) (“Knowledge of what is marijuana when once acquired is not likely to be forgotten.”). Thus, the State articulated a valid, noncharacter basis for admission of this evidence. Therefore, the court did not err in determining the prior-acts evidence was relevant.

We turn, then, to the trial court’s apparent decision that the probative value of this evidence was not substantially outweighed by its prejudicial effect. Our review of the trial court’s exercise of discretion in this case is hampered by the court’s failure to articulate how it balanced the probative value of this evidence against its prejudicial impact. Nonetheless, when we apply the pertinent factors, we conclude the unfair prejudice arising from the admission of this evidence substantially outweighed its minimal probative value. See Government v. Archibald, 987 F.2d 180, 186 (3d Cir.1993) (stating when trial judge fails “to explain the grounds for denying a Rule 403 objection, [reviewing court] may undertake to examine the record”).

In weighing probative value against unfair prejudice, the court should consider the following factors: (1) the actual need for the evidence in view of the issues and other available evidence, (2) whether there is clear proof showing the other crimes were committed by the accused, (3) the strength or weakness of the prior-acts evidence in supporting the issue sought to be proven, and (4) the degree to which the jury will probably be improperly influenced by the evidence. State v. Rodriquez, 636 N.W.2d 234, 240 (Iowa 2001). The second and third factors support admission of the challenged prior-acts evidence in this case. There is clear proof Henderson committed a prior act of possessing marijuana, as evidenced by her conviction, and we think her prior possession of this illegal substance is persuasive evidence she knew the material in the bag on top of her refrigerator was marijuana.

On the other hand, the actual need for this evidence was undeniably slight in view of the contested issues in the case and the other evidence available to the prosecution. Henderson’s defense was not that she thought the marijuana was a household herb such as marjoram or thyme; her defense was simply that the drugs belonged to Williams, not her. Moreover, there was abundant evidence found in the apartment that marijuana had been smoked there, indicating the owner of the bag of marijuana knew what it was. Under these circumstances, the need for the prior-acts evidence was marginal at best. See United States v. Schwartz, 790 F.2d 1059, 1062 (3d Cir.1986) (holding prior acts of selling cocaine had marginal relevance to knowledge or intent elements of current charge of selling cocaine where defendant’s sole defense was that he had not sold the drugs in question).

Balanced against the insignificant need for the prior-acts evidence was the strong prejudicial impact of this information. As we said in State v. Castaneda, “ ‘When jurors hear that a defendant has on earlier occasions committed essentially the same crimes as that for which [the defendant] is on trial, the information unquestionably has a powerful and prejudicial impact.’” 621 N.W.2d 435, 441 (Iowa 2001) (citation omitted); accord Schwartz, 790 F.2d at 1062 (holding prejudice from evidence of prior cocaine sales in prosecution for distributing cocaine “was very great”). Because we conclude the prejudicial effect of the prior-acts evidence outweighed its weak probative value, we hold the court abused its discretion in admitting this evidence.

The next step in our analysis is to determine whether this error obligates us to reverse the defendant’s conviction. Reversal is required in cases of nonconstitu-tional error when it appears “that the rights of the complaining party have been injuriously affected by the error or that he has suffered a miscarriage of justice.” Sullivan, 679 N.W.2d at 29; see also Iowa R. Evid. 5.103(a). In applying this test, “we presume prejudice — that is, a substantial right of the defendant is affected — and reverse unless the record affirmatively establishes otherwise.” Sullivan, 679 N.W.2d at 30 (emphasis omitted).

The trial court in the present case read a limiting instruction to the jury prior to allowing Deputy Aspleaf to testify that the defendant had a prior conviction for possession of marijuana. The jury was told this evidence was “for the limited purpose of determining whether or not the defendant had knowledge, in this case, that any substance she possessed, if she did possess any, was marijuana.” The court also admonished the jurors that they could “not use this evidence to decide whether the defendant carried out the acts involved in the crime charged in this case” and they could “not convict a person simply because [they] believe[d] [the defendant had] committed a similar act in the past.” Notwithstanding this instruction, we do not think the record in this case affirmatively establishes a lack of prejudice.

“When prior acts evidence is introduced, regardless of the stated purpose, the likelihood is very great that the jurors will use the evidence precisely for the purpose it may not be considered!:] to suggest that the defendant is a bad person, a convicted criminal, and that if he ‘did it before he probably did it again.’ ”

Castaneda, 621 N.W.2d at 441-42 (citation omitted). In Castaneda the trial court improperly admitted evidence of the defendant’s prior sexual acts in the defendant’s trial on charges of sexual abuse and indecent contact with a child. Id. at 438-39. This court held that even a proper limiting instruction would not have removed the unfair prejudice resulting from the improper testimony: The “testimony was so inherently prejudicial that no amount of admonition by the court was sufficient to remove the prejudice.” Id. at 442.

We reach the same conclusion here with respect to admission of the defendant’s prior drug conviction. While a limiting instruction can theoretically minimize the prejudice of evidence of prior acts, the effectiveness of such an instruction is greatly diminished where the prior act is the same crime at issue in the current prosecution and other evidence that would support a conviction is not overwhelming. See State v. Daly, 623 N.W.2d 799, 803 (Iowa 2001) (holding evidence that defendant had been convicted of same crime four years earlier “could very likely have a substantial effect on a jury, which, although instructed not to do so, could reasonably be expected to misuse the evidence as substantive proof of guilt”); cf. State v. Breitbach, 488 N.W.2d 444, 448 (Iowa 1992) (stating in a similar context, “to the extent that the State’s evidence on the matter in question is strong, the prejudicial effect of the challenged testimony will be correspondingly less, and, therefore, a cautionary instruction will suffice to insure the defendant receives a fair trial”). That is the situation here. It would be extremely difficult for jurors to put out of their minds knowledge that the defendant had possessed marijuana in the past and not allow this information to consciously or subconsciously influence their decision. See Sullivan, 679 N.W.2d at 24 (“[E]ven if the court gives a carefully crafted instruction limiting the significance of [prior-bad-acts] evidence, prejudice to the defendant is Vell-nigh inescapable.’ ” (Citation omitted.)). The very reason prior-bad-acts evidence is prejudicial is its persuasiveness that if a person possessed marijuana before, she probably possessed it again. See Sullivan, 679 N.W.2d at 24 (“Empirical studies have confirmed the courts’ fear that juries treat bad-acts evidence as highly probative.”).

In addition, the evidence of guilt in this case was not overwhelming. The State did not have the benefit of any of the traditional inferences of constructive possession to prove the marijuana and methamphetamine belonged to the defendant. Additionally, there were two persons living in the apartment when the drugs were confiscated. The primary circumstantial evidence that the drugs belonged to Henderson and not to her temporary guest — the defendant’s obstructive conduct when the officer served the writ of eviction — was capable of being explained by the defendant’s understandable anger at being evicted from her apartment.

We conclude this record does not affirmatively establish a lack of prejudice. Therefore, we reverse the defendant’s convictions for possession of marijuana and possession of methamphetamine. See id. at 30 (concluding evidence that defendant had committed same crime in the past was so inherently prejudicial that reversal was required); . Daly, 623 N.W.2d at 803 (same). This case is remanded for a new trial at which evidence of the defendant’s prior conviction shall not be admitted.

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

All justices concur except LAVORATO, C.J., who concurs specially and WIGGINS, J., who joins the special concurrence.

LAVORATO, Chief Justice

(concurring specially).

Although I agree with the result the majority reaches, I disagree in how it reached that result. My disagreement is this: Contrary to the majority’s conclusion, the State did not articulate a valid, noncharacter theory of admissibility for admission of the defendant’s prior conviction for possession of marijuana. Therefore, it was error to admit such evidence. For that reason, we never reach the balancing question under Iowa Rule of Evidence 5.403. My reasons for saying so follow.

Iowa Rule of Evidence 5.404(6) controls admissibility of bad-acts evidence. It provides:

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 therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Iowa R. Evid. 5.404(6). As we noted in State v. Sullivan, “[r]ule 5.404(6) codifies our common law on bad-acts evidence and is the counterpart to Federal Rule of Evidence 404(b).” 679 N.W.2d 19, 23 (Iowa 2004).

Courts “have long followed' the rule against admitting bad-acts evidence to show ‘that the defendant has a criminal disposition in order to generate the inference that he committed the crime with which he is charged.’” Id. (citation.omitted). They have done so because “ ‘[a] concomitant of the presumption of innocence is that a defendant must be tried for what he did, not for who he is.’-” Id. (citation omitted); see also United States v. Daniels, 770 F.2d 1111 (D.C.Cir.1985) (“[Ojnce evidence of prior crimes reaches the jury, ‘it is most difficult, if not impossible, to assume continued integrity of the presumption of innocence.’ ” (citation omitted)).

The policy against not admitting bad-acts evidence' is not because such evidence has no probative value, but because it has very substantial value not recognized in the law. Sullivan, 679 N.W.2d at 24. This is especially so, as the majority points out, when similar bad-acts evidence is introduced. Such evidence has a powerful and prejudicial impact as well as presenting the great likelihood that the jury will use the evidence exactly for the purpose it may not be used — to convict the defendant because he or she is a bad person. Id. at 30. So it is not surprising that empirical studies confirm the fact that juries treat bad-acts evidence as highly probative. Id. at 24; I John W. Strong, McCormick on Evidence § 190, at 659 n. 5 (5th ed. 1999) (citing study that determined “when a defendant’s criminal record is known and the prosecution’s case has contradictions, the defendant’s chances of acquittal are 38% compared to 68% otherwise”) [hereinafter McCormick on Evidence ]. They do so because common sense tells a juror that one who has acted criminally in the past probably may act the same way again. However, contrary to popular belief, empirical studies also show that a person’s character is not a good indicator of a person’s actions on a given occasion. Sullivan, 679 N.W.2d at 24.

We recognize that rule 5.404(6) is an exclusionary rule. Id.; State v. Barrett, 401 N.W.2d 184, 187 (Iowa 1987). This means that evidence of a defendant’s other bad acts will be excluded under the first sentence of the rule when such evidence is offered by the prosecution to prove that the defendant has a criminal disposition or a propensity to commit a crime. Sullivan, 679 N.W.2d at 25. The second sentence.of the rule creates an exception for evidence offered not to prove character but to prove some relevant issue in the case, such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Id. at 24-25. However, one writer would not characterize the second sentence as a list of exceptions:

[TJhere are no exceptions to the forbidden inference of rule 404(b). It may never be used by a litigant.... The second sentence of rule 404(b) merely contains a suggestive, nonexhaustive list of traditionally applied theories of relevance that do not capitalize upon the prohibited inference designated in the first sentence of the rule.

Glen Weissenberger, Making Sense of Extrinsic Act Evidence: Federal Rule of Evidence 4.01(b), 70 Iowa L. Rev. 579, 595 n. 47 (1985) [hereinafter Weissenberger].

This writer also suggests that the first sentence of rule 5.404(6)

makes sense because ... the rule represents a recognition of the unfairness of placing the accused in a position of rebutting extrinsic antisocial acts when directed against him pursuant to a propensity theory. More than just creating a risk of the jury reacting emotionally and punitively to an accused’s past misdeeds, when confronted with the act-propensity-act inference the accused is placed in the posture of arguing to the jury that its collective common sense should be disregarded. The accused has little basis for rebutting the evidence except by challenging the force of the propensity inference itself, and the greater its probative value, the more difficult it is for him to bring himself within the ever narrowing class of persons in regard to whom the inference is conceivably inapplicable. The accused must try to demonstrate that the very notion of probative value is inapplicable to him; he is forced to prove that his case is the anomaly.

Weissenberger at 608. This becomes even more problematic for the defendant in view of stock criminal instructions advising the jury to use its common sense and experience in reaching its verdict. I Iowa Criminal Jury Instructions Nos. 100.6 (Direct/Circumstantial Evidence), 100.7 (Credibility of Witnesses) (1988) (stating in No. 100.6: “In considering the evidence, make deductions and reach conclusions according to reason and common sense.”) (stating in No. 100.7: “Decide the facts from the evidence. Consider the evidence using your observations, common sense and experience.”).

Bad-acts evidence as to mens rea (state of mind) and which is unconnected to the crime charged is always evidence of propensity because it

“requires the jury to draw an intermediate inference as to the accused’s disposition or tendency to form a particular mens rea. The charged offense occurred at one time and place while the uncharged crime ordinarily occurs at a different time and place. To bridge the temporal and spatial gap between the two incidents, the prosecutor must assume the accused’s propensity to entertain the same intent in similar situations. That assumption is the inescapable link between the charged and uncharged crimes. The. trier of fact can reason from the starting point of the uncharged crime to a conclusion about the mens rea of the charged crime only through an intermediate assumption about the accused’s character or propensity.”

Sullivan, 679 N.W.2d at 26 (citation omitted).

To eliminate or at least reduce the risk that the jury will' rely entirely on the defendant’s propensity, we require prosecutors to articulate a valid, noncharacter theory of liability before the admission of the bad-acts evidence. Id. at 28. Implicit in this requirement are two conditions: First, “the evidence must be relevant and material to a legitimate issue in the case other than a general propensity to commit wrongful acts, and (2) there must be clear proof the individual against whom the evidence is offered committed the bad act or crime.” Id. at 25.

Without detailing them, we expressly stated that there are some factual situations when the prosecutor can easily develop a valid, noncharacter theory of admissibility. Id. at 28. For example, when the defendant is charged with possession of marijuana and defends on the basis that he or she was unaware the substance in his or her possession was marijuana, evidence of prior acts establishing that the defendant was in possession of marijuana is admissible -regarding mens rea. See Edward J. Imwinkelried, The Use of Evidence of an Accused’s Uncharged Misconduct to Prove Mens Rea: The Doctrines Which Threaten to Engulf the Character Evidence Prohibition, 51 Ohio St. L.J. 575, 596-98 (1990) [hereinafter Imwinkelried].

To avoid the danger that similar bad-acts evidence presents, the mens rea issue must be in “bona fide dispute,” and the prosecutor must have a “bona fide need to resort to the potentially prejudicial uncharged misconduct evidence.” Id. at 598 (suggesting ways a defendant could affirmatively dispute mens rea, for exainple, asserting that at the time of the act, defendant had an innocent state of mind, or a defense witness may give testimony calling into question the existence of mens rea, or cross-examination by defense counsel- of a state’s witness who gives testimony on mens rea could put the existence of mens rea in dispute); see also I McCormick on Evidence § 190, at 671-72 (“[T]he connection between the evidence and the permissible purpose should be -clear, and the issue on which the other crimes evidence is said to bear should be the subject of a genuine controversy. For example, if the prosecution maintains that the other crime reveals defendant’s guilty state of mind, then his intent must be disputed. Thus, if the defendant does not deny that the acts were deliberate, the prosecution may not introduce the evidence merely to show that the acts were not accidental.” (footnotes omitted)). Otherwise the jury will more than likely concentrate on the defendant’s propensity.

Although all bad-acts evidence has some element of propensity, the jury is less likely to concentrate on propensity if there is a bona fide dispute on mens rea. When the State is allowed to offer bad-acts evidence on an element that is really not in dispute, the only relevancy of such evidence is to show the defendant’s criminal disposition or propensity to commit the very crime for which the defendant is on trial. Such a result “is a dangerous one threatening to emasculate the character evidence prohibition.” Imwinkelried, 51 Ohio St.L.J. at 579.

Acknowledging the danger that similar bad-acts evidence presents, one federal court has suggested what I believe is a sensible approach for trial courts to follow when such evidence is offered. See United States v. Colon, 880 F.2d 650 (2d Cir.1989). First, the trial court must decide whether the evidence is offered for a proper purpose. Id. at 656. That purpose must be something other than to prove the defendant’s bad character or criminal propensity. Id. Proper purposes are those listed in the second sentence of rule 5.404(6). Id. Second, if such evidence is offered for such a proper purpose, the court has to then determine whether the evidence is relevant to an issue in the case and whether the evidence satisfies the probative-prejudice balancing test in Federal Rule of Evidence 403. Id. Last, if requested, the court must give an appropriate limiting instruction to the jury. Id.

Strictly speaking, a not guilty plea puts the defendant’s state of mind in issue because the State has the burden to prove it. Id. Nevertheless, in some situations, the nature of the defendant’s defense may show that knowledge and intent, while technically at issue, are really not in dispute. Id. In those circumstances, the court in Colon mandated that a defendant can keep the other bad-acts evidence out by

“expressfing] a decision not to dispute that issue with sufficient clarity that the trial court will be justified (a) in sustaining objection to any subsequent cross-examination or jury argument that seeks to raise the issue and (b) in charging the jury that if they find all the other elements established beyond a reasonable doubt, they can resolve the issue against the defendant because it is not disputed.”

Id. at 657 (recognizing “distinction between defense theories that claim that the defendant did not do the charged act at all, and those that claim that the defendant did the act innocently or mistakenly” and concluding only the latter truly raise a disputed issue of intent) (citation omitted); see also I McCormick on Evidence § 190, at 671 n. 66 (“ ‘The mere theory that a plea of not guilty puts everything material in issue is not enough.... The prosecution cannot credit the accused with fancy defences in order to rebut them at the outset with some damning piece of prejudice.’” (citation omitted)). Thus, under the Colon approach, intent is not placed in issue by a defense that the defendant did not do the act charged at all. When a defendant unequivocally relies on such a defense, other similar bad-acts evidence is not admissible.

The Colon approach is a sensible one. It keeps the highly prejudicial, similar bad-acts evidence from the jury while at the same time alleviating the prosecutor from having to prove an element not in dispute. Imwinkelried, 51 Ohio St. at 599-601.

Some twenty-four years ago, this court eschewed the Colon approach in a case involving delivery of a controlled substance (cocaine) for profit. See State v. Gibb, 303 N.W.2d 673 (Iowa 1981). The State relies heavily on Gibb to uphold the district court’s ruling, and Gibb underlies the majority’s relevancy analysis. In Gibb, the defendant argued that because he did not contest knowledge but only contested whether he delivered the substance for a profit, evidence that he possessed a controlled substance on the day of his arrest for which he was not charged should not have been admitted. Id. at 682. This court rejected the argument, holding that the “[defendant’s concession of an issue does not preclude the State from presenting evidence to establish that element of the crime.” Id. I would disavow this holding for several reasons.

First, the opinion is devoid of any analysis. The opinion falls into that category of cases that completely ignores the first sentence of rule 5.404(6) by automatically including similar bad-acts evidence whenever the prosecutor offers such evidence to prove mens rea. Imwinkelried at 578. As one writer observed, “opinions in the hundreds of cases on this subject are less than satisfying,” and “[f]or the most part, they are composed simply of conclusory statements without any supporting analysis.” Abraham P. Ordover, Balancing the Presumptions of Guilt and Innocence: Rules kOk(b), 608(b), and 609(a), 38 Emory L.J. 135, 156 (1989) [hereinafter Ordover]; see also Ross v. State, 276 Md. 664, 350 A.2d 680, 684-85 (1976) (similarly criticizing federal cases for automatically admitting similar bad-acts evidence on intent without any analysis). Such an approach substantially undermines the character evidence prohibition and threatens to emasculate that prohibition. Imwinkelried at 578, 579; see also Ordover, 38 Emory L.J. at 152-53 (making the point that intent is an' element of virtually every crime and if the intent exception warranted admission of similar bad-acts evidence simply to prove the intent element of the offense on trial then the exception would swallow the rule). In addition, the Gibb approach would encourage courts to rationalize admitting routinely evidence of any similar bad-acts evidence as to mens rea as a matter of course without regard to whether the State really needed it. Imwinkelried, 51 Ohio St. at 580; see also State v. Bly, 215 Kan. 168, 523 P.2d 397, 404 (1974) (“We wish to emphasize in passing that if trial judges content themselves with merely determining whether the particular evidence of other crimes fits into one of the particular exceptions, they may lose sight of the underlying policy of protecting the accused against unfair and - sometimes unbridled prejudice.”), overruled on other grounds by State v. Mims, 220 Kan. 726, 556 P.2d 387, 391 (1976).

Second, the Gibb holding is inconsistent with our later recognition in Barrett, 401 N.W.2d at 187 and reaffirmed in Sullivan, 679 N.W.2d at 25, that before evidence of bad-acts evidence may be admitted such evidence must be relevant and material to a legitimate issue in the case other than propensity to commit wrongful acts. As one writer points out,

[wjhere intent is contested and is the central issue in the case, the basis for admitting the evidence is very high. However, where intent is merely a formal' issue derived from the elements of the offense, the argument for receiving the evidence falters. In addition, where evidence of other crimes ‘can become probative with respect to intent only after an inference of predisposition has been drawn, the argument for admission is at its weakest, for the distinction between intent and predisposition then becomes ephemeral.’
Some courts are scrupulous about keeping extrinsic crime evidence from the jury in these cases on a variety of grounds. First, the evidence ... is plainly irrelevant; second, it is unduly prejudicial, and third, the government does not need the evidence.

Ordover at 153 (footnotes omitted); see also Bly, 523 P.2d at 404 (elements of intent, knowledge, etc. must be substantially in issue béfore evidence of other crimes is admissible to prove such elements); State v. Sutherland, 92 Ohio App.3d 840, 637 N.E.2d 366, 371 (1994) (the defendant’s past behavior involving drugs had no relevancy to whether he knew that there was marijuana hidden under hood of vehicle in which he was riding); State v. Hall, 41 Wash.2d 446, 249 P.2d 769, 772 (1952) (knowledge was in issue when the defendant asserted that he lacked knowledge that the plants growing on his premises were marijuana). If similar bad-acts evidence is admitted on the issue of mens rea, whether or not contested by the defendant, that would have the effect of swallowing rule 5.404(b).

Third, by ignoring the first sentence of rule 5.404(b), Gibb is inconsistent with our recognition that the rule is an exclusionary rule rather than an inclusionary one. See Sullivan, 679 N.W.2d at 24; Barrett, 401 N.W.2d at 187. Under the exclusionary view, similar bad-acts evidence is presumptively inadmissible and its probative value is presumed to be outweighed by the prejudicial effect unless admissible to prove a legitimate issue in the case. See Drew v. United States, 331 F.2d 85, 89-90 (D.C.Cir. 1964). In contrast, under Gibb, such evidence is presumptively admissible if offered on one of the exceptions in rule 5.404(b). 303 N.W.2d at 682. The presumptively admissible view has the effect of allowing inherently prejudicial evidence to become routinely admissible without regard to whether the State really needs it. Allowing a prosecutor to argue that similar bad-acts evidence is relevant on mens rea says nothing about how such evidence is relevant — that is, by means of what inferences such evidence proves mens rea.

Fourth, the State generally does not need the similar bad-acts evidence to prove mens rea when, as here, other evidence is available to support an inference of mens rea. As the majority points out, there was abundant evidence found in the apartment that marijuana had been smoked there, indicating the owner of the bag of marijuana knew it was marijuana.

Last, I think Sullivan implicitly overruled Gibb. As mentioned, Gibb held that the defendant’s concession of an issue regarding mens rea did not preclude the State from offering evidence of cocaine found on the defendant’s person when the police arrested him for prior drug transactions for which he was charged. There was no specific criminal charge for the cocaine found on the defendant’s person.

In Sullivan, the defendant was charged with possession of marijuana with intent to deliver. At trial, the court admitted evidence of the defendant’s prior conviction for a similar offense on the issue of intent and knowledge. Although the defendant in Sullivan did not expressly concede the issue on intent and knowledge, the case was defended on the theory that the drugs on the premises were not his. Implicitly, therefore, knowledge and intent were not in dispute. Notwithstanding the holding in Gibb, we held in Sullivan that the prior conviction was not admissible on the mens rea elements because the State failed to articulate a valid, noncharacter theory of logical relevance to support an inference on these elements.

In this case and in Sullivan, the prosecution offered past convictions similar to the offense on trial. The issue in both cases was not whether there was the appropriate mens rea (intent to deliver and knowledge in Sullivan and knowledge that the substance was marijuana in this case). Rather, the issue in both cases was whether the defendant owned the drugs. Therefore, there was no legitimate issue to support admission of the prior conviction in Sullivan, just, as we shall see, there was no legitimate issue to support admission of such evidence in this case. For these reasons, I think Sullivan controls here.

In this case, the defendant filed a motion in limine to exclude her prior conviction for possession of marijuana, which was similar to the charge she was facing. In a pretrial hearing on the motion, the prosecutor announced that he was offering the challenged evidence to establish that the defendant had knowledge that the substance she possessed on the date of the alleged crime was marijuana. The defendant’s counsel responded by-saying:

I don’t believe anyone is saying Miss Henderson doesn’t know what marijuana is. She is saying the marijuana in her residence wasn’t hers.

The district court overruled the motion, stating the State had to prove that the defendant not only possessed marijuana but also that she knew it was marijuana. The court made its ruling without requiring the prosecutor to make clear how the prior conviction was relevant on the issue of knowledge.

The record does not reflect any attempt by the defense counsel to inject the issue of knowledge either by direct testimony or cross-examination. Rather, by his cross-examination, it was clear that counsel was attempting to show that the marijuana belonged to the guest rather than to the defendant. In short, the defendant’s defense was that she did not commit the act at all. In these circumstances, although the defendant’s not guilty plea technically put knowledge in issue, knowledge was not in dispute. For this reason, knowledge was not a legitimate issue. Because knowledge was not a legitimate issue, the only reason the State had for offering the defendant’s prior conviction was to show her propensity to commit the very crime for which she was on trial. Therefore proof of the conviction of a similar crime was not relevant on the issue of knowledge. Moreover, there was sufficient circumstantial evidence regarding knowledge to take the case to the jury, making it unnecessary for the State to use the defendant’s prior conviction of a similar crime.

On appeal, the defendant again contends that her defense was not that she does not know what marijuana is but rather that the marijuana simply was not hers. The issue then was: Whose marijuana was it? Not whether the defendant knew the item in question was marijuana. In this regard, I think the majority misconstrues the defendant’s contention on appeal when it says that her contention was that the prior marijuana conviction does not tend to demonstrate she knew what the drug was. Taken in context, what the defendant meant was that the prior conviction was not relevant on the issue of knowledge because knowledge was not disputed. As mentioned, her contention in the trial court and again on appeal is that the marijuana was not hers.

Because knowledge was not in dispute, the only reason the State had to offer the prior conviction was to show the defendant’s propensity to commit the very crime for which she was on trial: Therefore the State had no valid, noncharacter theory of logical relevance to support admission of the prior conviction. I would hold that this evidence simply was not legally relevant. •

WIGGINS, J., joins this special concurrence.

      . The officer described a jar with a hole in it through which a piece of tubing runs. The officer testified marijuana is burned in the jar and smoke is inhaled through the tube.

      . A blunt is a hollowed-out cigar that has been filled with marijuana.


author: WIGGINS, Justice.

text:
    STATE of Iowa, Appellee, v. Kent Bradley WILLS, Appellant.
    No. 04-0202.
    Supreme Court of Iowa.
    May 6, 2005.

      Linda Del Gallo, State Appellate Defender, and Tricia Johnston, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, John P. Sarcone, County Attorney, and John Judisch, Assistant County Attorney, for appellee.
   WIGGINS, Justice.

Kent Wills appeals his conviction for second-degree burglary contending that an attached garage is a separate occupied structure from that of the living quarters of the.residence. In this appeal, we must determine whether trial counsel was ineffective for (1) failing to move for judgment of acquittal on the basis there was insufficient evidence to convict Wills of second-degree burglary when he entered an attached garage of a residence when no persons were present in the garage, but when persons were present in the living quarters; and (2) failing to object to a jury instruction based on this same argument. Because we find there was no legal basis for the motion for judgment of acquittal or the objection to the jury instruction, Wills’ trial counsel was not ineffective. Accordingly, we affirm the judgment of the district court.

I. Background Facts and Proceedings.

Around 1 a.m., an Ankeny resident called the local police to report that a car alarm sounded in the resident’s neighborhood. The city dispatched a police officer to the location. Observing nothing unusual, the officer left the area, only to be stopped a couple of blocks later by a person who informed the officer he had witnessed someone running from the area of the car alarm. As the officer started driving back to the area of the car alarm, he noticed a person walking on the sidewalk. The officer asked the person, a minor, if he had noticed anybody running from the area. The minor answered that he had not. While the officer and another officer were speaking to the minor, another resident of the neighborhood arrived in her car and informed the officers that she had observed two people, one of whom was heavy set with a blinking light on his back pocket, walking in the area of her neighbor’s residence. She observed the heavier-set individual, later identified as Wills, enter her neighbor’s attached garage through an unlocked service door. She further observed a smaller individual standing by a van parked in the neighbor’s driveway.

The officers eventually let the minor leave even though they found a large amount of coins, a flashlight, and an electronic pocket organizer in his pockets. After releasing the minor, the police officers drove to the residence where the neighbor observed the two suspicious people and woke the owner. The owner, his wife, and two daughters were in the residence sleeping at the time. After a search of his vehicles, the owner discovered change and an electronic pocket organizer were missing from the vehicles. The 'owner’s daughter reported a diamond ring and some change were missing from her vehicle. The officers then contacted the minor’s parents, who informed the officers the minor was with Wills. After the officers questioned the minor again, he admitted his involvement in the theft and implicated Wills in the burglary. Although Wills denied involvement in the burglary, the officers arrested him.

The State filed a trial information charging Wills with second-degree burglary. The State later amended the information to include two additional charges of burglary in the third degree and using a juvenile to commit an indictable offense.

The jury returned a verdict finding Wills guilty of the crimes of burglary in the second degree, burglary in the third degree, and using a juvenile to ■ commit an indictable offense. Wills appeals his conviction for second-degree burglary claiming ineffective assistance of counsel.

II. Scope of Review.

Claims' of ineffective assistance of counsel are derived from the Sixth Amendment of the United States Constitution.- Strickland v. Washington, 466 U.S. 668, 684-86, 104 S.Ct. 2052, 2068-64, 80 L.Ed.2d 674, 691-93 (1984). Our review for a claim involving violations of the Constitution is de novo. State v. Fintel, 689 N.W.2d 95, 100 (Iowa 2004). We normally preserve ineffective-assistance-of-counsel claims for postconviction relief actions. State v. Carter, 602 N.W.2d 818, 820 (Iowa 1999). However, we will address such claims on. direct appeal when the record is sufficient to permit a ruling. State v. Artzer, 609 N.W.2d 526, 531 (Iowa 2000). The appellate record in the present case is sufficient to allow us to address Wills’ ineffective-assistance-of-counsel claims on direct appeal.

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. Prejudice results when “there is 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) (quoting Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698). Wills’ arguments also raise issues of statutory interpretation, which we review for correction of errors at law. State v. Wolford Corp., 689 N.W.2d 471, 473 (Iowa 2004).

III. Analysis.

To find Wills guilty of burglary in the second degree, the State had to prove Wills perpetrated a burglary “in or upon an occupied structure in which one or more persons are present. ...” Iowa Code § 713.5(2) (2003) (emphasis added).

In this appeal, Wills first contends his trial counsel was ineffective for failing to move for a judgment of acquittal on the basis there was insufficient evidence to support a finding that at the time Wills entered the garage, there were persons present in or upon the occupied structure. Wills concedes the garage was an occupied structure, but argues the living quarters and the attached garage are separate and independent occupied structures; therefore, the jury could not have found there were people present in the attached garage' at the time of the burglary.

The Code defines an “occupied structure” as:

[A]ny building, structure, appurtenances to buildings and structures, land, water or air' vehicle, or similar place adapted for overnight accommodation of persons, or occupied by persons for the purpose of carrying on business or other activity therein, or for. the storage or safekeeping of anything of value. Such a structure is an “occupied structure” whether or not a person is actually present.

Id. § 702.12.

Wills relies on State v. Smothers, 590 N.W.2d 721 (Iowa 1999), to argue the garage and the living quarters are separate and independent occupied structures. In Smothers, two separate and distinct businesses connected by interior fire doors were operated in the same structure. 590 N.W.2d at 723. We held the defendant committed two burglaries by entering each business because “[t]he facility’s construction history and physical make-up demonstrate that the portions are independent working units which constitute ‘[a] combination of materials to form a construction for occupancy [or] use.’ ” Id. Smothers is not at odds with the present case because the living quarters and the garage are not separate or independent units of the residence.

Our review of the record reveals the garage in question was a three-car attached garage separated from the living quarters by a door. The same roof covered the garage as the rest of the residence. The living quarters surrounded the garage on two sides. It was structurally no different from any other room in the residence.

The garage was a functional part of the residence. On the night of the incident, the door was unlocked. The owner of the residence used two stalls in the garage to park the family vehicles. The owner used the third stall for his motorcycle. As such, the garage and the living quarters are a single “structure” or “building” functioning as an integral part of the family residence. Thus, the residence including the garage is a single “occupied structure” under section 702.12. See, e.g., People v. Ingram, 40 Cal.App.4th 1397, 48 Cal.Rptr.2d 256 (1995) (holding defendant’s entry into an attached garage constituted first-degree burglary because the garage was attached to the house; therefore, burglary of the garage was burglary of an inhabited dwelling house); People v. Cunningham, 265 Ill.App.3d 3, 202 Ill.Dec. 511, 637 N.E.2d 1247, 1252 (1994) (holding “ordinarily an attached garage is a ‘dwelling’ because it is part of the structure in which the owner or occupant lives”); State v. Lara, 92 N.M. 274, 587 P.2d 52, 53 (Ct.App.1978) (holding “burglary of the [attached] garage was burglary of the dwelling house because the garage was a part of the structure used as living quarters”); People v. Green, 141 A.D.2d 760, 761, 529 N.Y.S.2d 852 (N.Y.App.Div.1988) (holding “[s]ince the garage in the present case was structurally part of a building which was used for overnight lodging of various persons, it must be considered as part of a dwelling”); White v. State, 630 S.W.2d 340, 342 (Tex.Ct.App.1982) (holding an attached garage under the same roof as the home would be considered a habitation within the purview of the penal code because the garage is a structure appurtenant to and connected to the house); State v. Murbach, 68 Wash. App. 509, 843 P.2d 551, 553 (1993) (holding the definition of a dwelling under Washington’s burglary statute included an attached garage).

Had Wills’ trial counsel moved for a judgment of acquittal on the basis there was insufficient evidence to support a finding that at the time Wills entered the garage there were no persons present in or upon the occupied structure, it would have been overruled by the court because the owner and his family were present in the residence at the time of the burglary.

Wills also claims his counsel was ineffective for failing to object to the jury instruction used by the district court on the same ground; that the living quarters were a separate and independent occupied structure from the attached garage. The instruction as given stated:

The State must prove all of the following elements of Burglary in the Second Degree as to Count I:
1. On or about the 12th day of August, 2003, the defendant or someone he aided and abetted broke into or entered the residence at....
2. The residence at ... was an occupied structure as defined in Instruction No. 29.
3. The defendant or the person he aided and abetted did not have permission or authority to break into the residence at....
4. The defendant or the person he aided and abetted did so with the specific intent to commit a theft therein.
5. During the incident persons were present in or upon the occupied structure.
If the State has proved all of the elements, the defendant is guilty of Burglary in the Second Degree. If the State has failed to prove any of the elements, the defendant is not guilty of Burglary in the Second Degree and you will then consider the charge of Attempted Burglary in the Second Degree explained in Instruction No. 21.

(Emphasis added.)

Wills’ claim is without merit. As we have discussed, the residence is the one and only “occupied structure” under the facts of this case. Had Wills’ trial counsel made this objection to the instruction, it would have been overruled.

Therefore, Wills’ trial counsel is not ineffective for failing to move for a judgment of acquittal or objecting to the instruction because there was no legal basis for the motion or objection. See State v. Hoch-muth, 585 N.W.2d 234, 238 (Iowa 1998) (holding trial counsel was not ineffective for failing to raise an issue that has no merit).

IV. Disposition.

We affirm the judgment of the district court because Wills’ trial counsel was not ineffective for failing to raise meritless issues.

AFFIRMED.


author: CADY, Justice.

text:
    Darin OTTERBERG, Appellant, v. FARM BUREAU MUTUAL INSURANCE COMPANY, Appellee.
    No. 04-0251.
    Supreme Court of Iowa.
    May 6, 2005.

      Christopher D. Spaulding of Berg, Rouse, Spaulding & Schmidt, P.L.C., Des Moines, for appellant.
    Edward G. Parker of Morain & Pugh, P.L.C., West Des Moines, for appellee.
   CADY, Justice.

In this appeal from a declaratory judgment entered by the district court, we must primarily decide if an insured can recover under an uninsured motorist provision of an automobile insurance policy based on injuries covered by workers’ compensation sustained while he was a passenger in a motor vehicle owned by his employer and operated by a co-employee. We also consider the impact of the preservation-of-error doctrine on the failure of a nonmoving party to a motion for summary judgment to file a resistance to the motion. Upon- our review, we affirm the judgment of the district court.

I. Background Facts and Proceedings

Darin Otterberg was employed by Jefferson County Ambulance as a paramedic. On December 21, 2000, he was a passenger in an ambulance driven by his coworker, Eric Beard. They were transporting a patient to the hospital. Beard lost control of the ambulance, resulting in a single-vehicle accident. The accident caused back and neck injuries to Otterberg. Ot-terberg subsequently received workers’ compensation benefits from the workers’ compensation insurance carrier for Jefferson County Ambulance.

Otterberg also owned an automobile insurance policy with Farm Bureau Mutual Insurance Company. The policy included uninsured motorist (UM) coverage. The relevant part of the UM provision provided:

We will pay damages for bodily injury an insured is legally entitled to recover from the owner or operator of an un-insured motor vehicle. The bodily injury must be caused by an accident and arise out of the ownership, maintenance or use of an un-insured motor vehicle.

Otterberg made a claim against Farm Bureau under the UM provision. Although the ambulance was covered, under a liability insurance policy maintained by Jefferson County Ambulance, Otterberg claimed the ambulance was an uninsured vehicle under his Farm Bureau policy because the Jefferson County Ambulance policy did not extend coverage to him due to the applicability of the workers’ compensation laws. Farm Bureau denied the claim. It asserted that, even assuming the ambulance was an uninsured vehicle, the UM provision did not provide coverage because Otterberg was not “legally entitled to recover” from the employer or the co-employee who was operating the ambulance.

Otterberg filed a petition for declaratory judgment against Farm Bureau. Farm Bureau counterclaimed, asking the court to declare that no coverage existed under its policy. Farm Bureau then moved for summary judgment. It claimed Otterberg was not “legally entitled to recover” damages from the owner or operator of the uninsured ambulance due the exclusivity provision of the workers’ compensation statute. Otterberg failed to file a resistance prior to the summary judgment hearing. The district court accepted Farm Bureau’s argument and granted the motion for summary judgment.

Otterberg appeals. First, he argues he is entitled to UM benefits under the doctrine of reasonable expectations. Second, he argues the “legally entitled to recover” language in his policy does not bar his claim for UM benefits.

II. Standard of Review

We review a ruling on a motion for summary judgment for correction of errors at law. In re Estate of Graham, 690 N.W.2d 66, 69-70 (Iowa 2004) (citing Barreca v. Nicholas, 683 N.W.2d 111, 116 (Iowa 2004)). A, motion for- summary judgment should only be granted if, viewing the evidence in the light most favorable to the nonmoving party,

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); see Wernimont v. Wernimont, 686 N.W.2d 186, 189 (Iowa 2004) (“[W]e view the record in the light most favorable to the nonmoving party and allow that party all reasonable inferences that can be drawn from the record.” (citing Delaney v. Int’l Union UAW Local No. 91, 675 N.W.2d 832, 834 (Iowa 2004))).

In addition,

[w]e review the interpretation of the language of an insurance policy for correction of errors at law.... Due to the nature of an insurance policy, the benefit of the doubt in the drafting is interpreted against the insurance company. As such, limits in “coverage are construed strictly against the insurer.”

Westfield Ins. Cos. v. Econ. Fire & Cas. Co., 623 N.W.2d 871, 875-76 (Iowa 2001) (citations omitted).

III. Preservation of Error

Farm Bureau argues Otterberg failed to preserve error on the issues raised on appeal because he failed to file a written resistance to Farm Bureau’s motion for summary judgment in district court. Although our rules of procedure allow a nonmoving party to resist summary judgment, the burden is still on the moving party “to show the district court that there was no genuine issue of material fact and that it was entitled to a judgment as a matter of law.” Bill Grunder’s Sons Constr., Inc. v. Gamer, 686 N.W.2d 193, 197 (Iowa 2004) (citing Iowa R. Civ. P. 1.981(3)). Thus, a party faced with a motion for summary judgment can rely upon the district court to correctly apply the law and deny summary judgment when the moving party fails to establish it is entitled to judgment as a matter of law. Yet, as we recently observed in Bill Grunder’s Sons Construction, Inc. v. Ganzer,

if the movant has failed to establish its claim and the court nevertheless enters judgment, the nonmovant must at least preserve error by filing a motion following the entry of judgment, allowing the district court to consider the claim of deficiency.

Id. at 197-98. This rule of error preservation is “ ‘[biased upon considerations of fairness.’ ” Id. at 197 (quoting Sorci v. Iowa Dist. Ct., 671 N.W.2d 482, 489 (Iowa 2003)). That is, “[i]t is fundamentally unfair to fault the trial court for failing to rule correctly on an issue it was never given the opportunity to consider.” Id. (internal quotations omitted).

In this case, Otterberg filed a motion to reconsider with the district court after the summary judgment motion was granted. The motion raised both issues presented on appeal. However, before a hearing could be held on the motion, Otterberg filed a notice of appeal from the summary judgment ruling. The district court never held the hearing. Farm Bureau asserts that the notice of appeal divested the district court of its jurisdiction over the case and deprived the district court of any opportunity to consider the issues now raised on appeal. Consequently, by failing to give the district court the opportunity to consider the errors raised on appeal, Farm Bureau claims Otterberg has failed to preserve error under our rule in Bill Gnm-der’s Sons Construction, Inc.

In addressing this preservation-of-error claim raised by Farm Bureau, we turn to the rationale for the rule articulated in Bill Grunder’s Sons Construction, Inc. An important consideration of error preservation is for the district court to have an opportunity to consider the issue raised on appeal. Id. 197-98. If the district court considered the issue raised on appeal by the nonmovant in ruling on an uncontested summary judgment motion, the rationale for requiring the nonmovant to file a post-judgment motion with the district court to preserve error on appeal is inapplicable. Thus, if a motion for summary judgment presented the issue to the district court and the district court ruled on it, the rule requiring the district court to first consider issues raised on appeal is satisfied.

In Bill Grunder’s Sons Construction, Inc., the issue raised on appeal by the nonresisting party to the summary judgment motion in district court was not an issue considered and ruled on by the district court in ruling on the motion for summary judgment. Id. at 194. In this case, the basis for the summary judgment motion by Farm Bureau was that the UM provision did not apply because Otterberg was not “legally entitled to recover damages.” This was the issue presented and decided by the district court. Consequently, Otterberg may raise this issue on appeal without violating the preservation-of-error doctrine. However, Otterberg’s claim that the UM provision of the policy also violates the reasonable-expectations doctrine was never considered by the district court. Consequently, error was not preserved on that issue.

IV. “Legally Entitled to Recover”

We have never determined whether an insured is “legally entitled to recover” within the meaning of the UM provision of an insurance policy or our UM insurance statute when the injuries are covered under the workers’ compensation system. Among the courts that have decided this issue, the great weight of authority holds that an insured is not entitled to UM benefits when the insured could not sue the uninsured co-employee because of the workers’ compensation exclusivity provision. Compare Ex parte Carlton, 867 So.2d 332, 338 (Ala.2003) (holding that when plaintiffs co-employee was immune from suit under workers’ compensation exclusivity provision, plaintiff was not “legally entitled to recover” under UM policy),- and Allstate Ins. Co. v. Boynton, 486 So.2d 552, 555 (Fla.1986) (same), and State Farm Mut. Auto. Ins. Co. v. Royston, 72 Haw. 338, 817 P.2d 118, 122 (1991) (same), and Wachtler v. Stale Farm Mut. Auto. Ins. Co., 835 So.2d 23, 28 (Miss.2003) (same), and Estate of Libby v. State Farm Mut. Auto. Ins. Co., 147 N.H. 616, 809 A.2d 768, 771 (2002) (same), and State Farm Mut. Auto. Ins. Co. v. Webb, 54 Ohio St.3d 61, 562 N.E.2d 132, 135 (1990) (same), and 6 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law § 110.05[10], at 110-28 (2004) (stating that if an employee is injured in a car accident by a co-employee in the course of employment, “the uninsured motorist carrier has no liability”), and 7A Am.Jur.2d Automobile Insurance § 312, at 35 (1997) (“The phrase ‘legally entitled to recover’, as used in an uninsured motorist statute generally does not encompass claims as to which the uninsured tortfeasor is immune from liability, as, for example, by reason of an exclusivity provision of a workers’ compensation statute .... ”), with Barfield v. Barfield, 742 P.2d 1107, 1112 (Okla.1987) (“Protection under an uninsured motorist policy is a contractual right resting in the insured and thus may be coexistent with the protection under the Workers’ Compensation Act. An uninsured motorist carrier does not stand in the tortfeasor’s shoes and the conditions for recovery under an uninsured motorist policy can be satisfied even if the insured cannot prove all the elements of the tort against the insured.” (Citations omitted.)).

We have previously observed that the phrase “legally entitled to recover” is given a liberal interpretation, not a literal one. Waits v. United Fire & Cas. Co., 572 N.W.2d 565, 573 (Iowa 1997). This has resulted in several cases in which we have permitted an insured to recover UM benefits even though the insured was unable to recover from the negligent tortfeasor. In reviewing our prior cases, we have said:

In Wetherbee, we rejected a literal interpretation of the policy in favor of an interpretation more consistent with the purpose of underinsured motorist coverage as envisioned by the' legislature. In that case, we permitted the insured, the spouse of the deceased injured person, to pursue a claim against her UIM carrier even though she was not the one authorized by statute to pursue the wrongful death claim, and in that sense, was not literally “legally entitled to recover” damages from the underinsured motorist. We held it was sufficient that the insured “suffered damages caused by the fault of the underinsured motorist and [was] entitled to receive those damages.”
Similarly, in Leuchtenmacher, we held an insured could settle with the underin-sured motorist without jeopardizing his or her recovery of UIM benefits. We concluded a judgment against the under-insured motorist was not required to establish thát the insured was “legally entitled to recover” damages from the underinsured motorist.

Id. at 573-74 (citations omitted). Moreover, in Waits, we held that a release given by an insured to an underinsured driver in conjunction with a settlement did not mean the insured was not “legally entitled to recover” from the underinsured driver within the meaning of the UM provisions of an insurance policy. Id. at 574.

These cases reflect our policy of broadly construing “legally entitled to recover” to accomplish the purpose of Iowa’s UM statute: ‘“to provide compensation to an insured who is the victim of an [uninsured motorist to the same extent as if the [uninsured motorist were adequately insured.’ ” Id. at 573 (citing Wetherbee, 508 N.W.2d at 660; 8C John Alan Appleman & Jean Appleman, Insurance Law and Practice § 5071.45, at 102-03 (1981 & Supp. 1997)). However, these cases all differ from the circumstances of this case in one important respect. In our prior cases, our law provided for an underlying claim, but the claim could not be enforced by the insured under the particular circumstances. See Waits, 572 N.W.2d at 572 (noting insured released the tortfeasor from liability); Wetherbee, 508 N.W.2d at 658 (noting that insured could not have brought an action in her own name against the underinsured motorist because Iowa’s wrongful death statute required that claims for post-death loss of spousal consortium be brought by the administrator of the decedent’s estate).

In this case, our legislature has adopted the workers’ compensation system. This system supplants the common law, and we no longer recognize a cause of action for negligence by an employee against the employer or co-employee. Kesterson v. Wallut, 157 S.W.3d 675, 686 (Mo.Ct.App.2004) (citations omitted). Thus, Otterberg never had any legal right to recover against the driver of the ambulance.

Other courts have interpreted the “legally entitled to recover” phrase to require not only that the insured “suffered damages caused by the fault of the uninsured motorist,” Wetherbee, 508 N.W.2d at 661, but also that the insured’s action against the uninsured motorist was not barred under substantive law. See, e.g., Boynton, 486 So.2d at 556; Oates v. Safeco Ins. Co., 583 S.W.2d 713, 716 (Mo.1979). We find this approach persuasive. The phrase “legally entitled to recover” cannot be stretched so far as to cover situations when an insured could have never recovered from the uninsured motorist because the law did not provide for any recovery. See Boynton, 486 So.2d at 556-57; see, e.g., Matarese v. N.H. Mun. Ass’n of Property-Liability Ins. Trust, Inc., 147 N.H. 396, 791 A.2d 175, 181 (2002) (“[T]he purpose of the uninsured motorist statute is to protect insureds from financially irresponsible motorists. That purpose is fulfilled by placing the insured in the same position as if the uninsured motorist had been insured, not a better position.” (Citations omitted.)). Although we liberally interpret the phrase “legally entitled to recover,” we will not interpret it so liberally as to contravene our fundamental principles of recovery.

We acknowledge the arguments articulated by those courts and legal scholars who conclude that the “legally entitled to recover” element of UM claims should not preclude UM benefits when tort immunity is the underlying ground that prevents the insured from legally recovering from the tortfeasor. See generally 1 Alan I. Widiss, Uninsured and Underinsured Motorist Insurance § 7.14, at 387-406 (rev.2d ed.1999). However, this position does not apply with equal force when the immunity exists because tort liability has been replaced by our legislature with an alternative compensation system such as workers’ compensation. See generally John P. Lud-ington, Automobile Uninsured Motorist Coverage: “Legally Entitled To Recover” Clause as Barring Claim Compensable Under Workers’ Compensation Statute, 82 A.L.R.4th 1096 (1990). Our workers’ compensation system bars employee tort actions for work-related injuries, and we find no intent expressed by our legislature that the benefits of UM coverage are broad enough to supplement compensation under our workers’ compensation system. See Glenn v. Farmland Foods, Inc., 344 N.W.2d 240, 242-43 (Iowa 1984) (discussing the exclusivity provision). Thus, we will not interfere with the clear statement by our legislature that UM coverage exists only when the insured is “legally entitled to recover” from the tortfeasor. Boynton, 486 So.2d at 559. Under the circumstances of this case, the “legally entitled to recover” element cannot be met because the workers’ compensation statute is the exclusive remedy and precludes a tort claim against the employer and co-employee.

V. Conclusion

We conclude Otterberg is not “legally entitled to recover” damages from the owner or operator of the ambulance in which he was injured (i.e., his employer or co-employee) within the meaning of his uninsured motorist insurance policy or Iowa Code section 516A.1. This is because the exclusivity provision of the workers’ compensation statute provides a substantive bar to any legal claim against his employer and co-employee for injuries covered by workers’ compensation. Thus, the district court properly entered summary judgment in favor of Farm Bureau. Ot-terberg is not entitled to uninsured motorist benefits under his policy.

AFFIRMED.

      . The "legally entitled to recover” language comes directly from our UM insurance statute:
      No automobile liability or motor vehicle liability insurance policy insuring against liability for bodily injury or death arising out of the ownership, maintenance, or use of a motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state, unless coverage is provided in such policy or supplemental thereto, for the protection of persons insured under such policy who are legally entitled to recover damages from the owner or operator of an uninsured motor vehicle or a hit-and-run motor vehicle or an under-insured motor vehicle because of bodily injury, sickness, or disease, including death resulting therefrom, caused by accident and arising out of the ownership, maintenance, or use of such uninsured or underinsured motor vehicle, or arising out of physical contact of such hit-and-run motor vehicle with the person insured or with a motor vehicle which the person insured is occupying at the time of the accident.
      Iowa Code § 516A.1 (2003) (emphasis added).

      . In pertinent part, section 85.20, the exclusivity provision of the workers' compensation statute, provides:

        The rights and remedies provided in this chapter, chapter 85A or chapter 85B for an employee ... on account of injury ... for which benefits under this chapter, chapter 85A or chapter 85B are recoverable, shall be the exclusive and only rights and remedies of the employee ... at common law or otherwise, on account of such injury ... against any of the following:
      1. Against the employee's employer.
      2. Against any other employee of such employer, provided that such injury, occupational disease, or occupational hearing loss arises out of and in the course of such employment and is not caused by the other employee's gross negligence amounting to such lack of care as to amount to wanton neglect for the safety of another.
      Iowa Code § 85.20(l)-(2). Farm Bureau’s argument is that under section 85.20(2), Otter-berg is not "legally entitled to recover damages” from Mr. Beard, the uninsured motorist in this case. Thus, Farm Bureau claims, he does not qualify for UM benefits under the policy or section 516A.1. It is undisputed that Otterberg’s injuries arose out of and in the course of employment. Otterberg did not allege that Beard was grossly negligent.