author: GIENAPP, Circuit Judge.

text:
    2007 SD 126
    NORTHLAND INSURANCE COMPANY and Chad Loebs d/b/a/ Loebs Trucking, Plaintiffs and Appellants, v. ZURICH AMERICAN INSURANCE COMPANY, Upper Plains Contracting, Inc., and Michael and Tammy Fetzer, Defendants and Appellees.
    No. 24423.
    Supreme Court of South Dakota.
    Considered on Briefs Aug. 27, 2007.
    Decided Dec. 12, 2007.

      Daniel A. Haws of Murnane Brandt, St. Paul, Minnesota, Steven J. Oberg and Joseph Ashley Parr of Lynn, Jackson, Shultz & Lebrun, PC, Rapid City, South Dakota, Attorneys for plaintiffs and appellants.
    Peter G. Van Bergen of Cousineau McGuire Chartered, Minneapolis, Minnesota, Douglas M. Deibert of Cadwell, Sanford, Deibert & Garry, LLP, Sioux Falls, South Dakota, Attorneys for defendants and appellees.
   GIENAPP, Circuit Judge.

[¶ 1.] Northland Insurance Company (Northland) initiated a declaratory judgment action against Zurich American Insurance Company (Zurich). The parties filed cross motions for summary judgment. There is no issue as to the existence of any factual disputes. The circuit court ruled in favor of Zurich. Northland appeals and we affirm.

FACTS AND PROCEDURAL HISTORY

[¶ 2.] On May 1, 2001, Upper Plains Contracting, Inc. (UPCI) and Chad Loebs, d/b/a Loebs Trucking (Loebs) entered into a trucking agreement whereby Loebs agreed to pull UPCI-owned trailers for the construction season. Pursuant to the trucking agreement, Loebs was required to provide proof of insurance.

[¶ 3.] On October 2, 2001, Loebs was operating his personally-owned 1987 Pet-erbuilt tractor and was pulling a trailer at UPCI’s construction site in North Dakota. The trailer was owned by UPCI. A UPCI employee, Michael Fetzer (Fetzer), was leveling cement at the North Dakota construction site. Fetzer claims he sustained injuries when the front of Loebs’ passing tractor struck the handle of the cement leveling tool he was using. The force of the contact caused Fetzer to be thrust upon the trailer and run over by the tag axle wheel. The accident left Fetzer pinned in the wheel well of the trailer. At the time of the accident, Loebs was insured by a Northland commercial insurance policy (Northland policy) and the UPCI trailer pulled by Loebs’ tractor was insured by a Zurich commercial insurance policy (Zurich policy).

[¶ 4.] Fetzer and his wife commenced a civil action in Cass County, North Dakota, against Loebs. Fetzer claimed he sustained damages as a result of Loebs’ alleged negligence in the operation of the tractor. Loebs tendered the defense to Northland pursuant to his Northland policy and Northland proceeded to defend Loebs in the underlying action.

[¶ 5.] Thereafter, Northland tendered the defense to Zurich alleging the Zurich policy provided primary coverage to defend and indemnify Loebs in the underlying action. Zurich denied the tender. As a result, Loebs and Northland commenced a declaratory judgment action in South Dakota to decide which policy should provide primary coverage and defend and indemnify Loebs in the underlying action. Both parties filed motions for summary judgment.

[¶ 6.] The circuit court granted summary judgment in favor of Zurich holding that any coverage for Loebs as an insured under Zurich’s policy was precluded by the “Employee Indemnification and Employer’s Liability” exclusion (employer’s liability exclusion) in its policy. As a result, the circuit court determined Northland’s policy was the policy granting primary coverage over Loebs in the underlying action.

STANDARD OF REVIEW

[¶ 7.] This matter is before the Court on appeal from a grant of summary judgment. Summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” SDCL 15 — 6—56(c). Material facts in this case are undisputed. Therefore, this Court’s “review is limited to whether the law was correctly applied.” Krier v. Dell Rapids Twp., 2006 SD 10, 12, 709 N.W.2d 841, 845. Our review of whether the law was correctly applied is de novo, with no discretion given to the circuit court. Pauley v. Simonson, 2006 SD 73, ¶ 7, 720 N.W.2d 665, 667.

ANALYSIS AND DECISION

[¶ 8.] A number of issues were raised before the circuit court. The circuit court, however, limited its decision to a finding that (1) Loebs was insured under the Zurich policy as an omnibus insured; and (2) the employer’s liability exclusion set forth in the Zurich policy excluded coverage by Zurich over Loebs in the underlying action. We examine both issues on appeal and affirm the circuit court.

ISSUE ONE

[¶ 9.] Whether Loebs was insured under the Zurich policy as an omnibus insured.

[¶ 10.] South Dakota’s financial responsibility law requires that automobile insurance policies provide vehicle owners with certain liability coverage for acts arising out of the ownership of insured vehicles. Schulte v. Progressive Northern Ins. Co., 2005 SD 75, ¶ 9, 699 N.W.2d 437, 440. The general rule is that the omnibus clause creates liability coverage in favor of the omnibus insured “to the same degree as the [named] insured.” Estate of Trobaugh v. Farmers Ins. Exchange, 2001 SD 37, ¶ 21, 623 N.W.2d 497, 502.

[¶ 11.] In accordance, the Zurich policy defines “insured” as including “[a]nyone else while using with [policy holder] permission a covered ‘auto you own.’ ” Here, UPCI gave Loebs permission to use UPCI’s trailer pursuant to the trucking agreement and Loebs was using the trailer when the underlying accident occurred. Therefore, Loebs is insured under Zurich’s policy as an omnibus insured and is granted the same degree of liability coverage as UPCI.

ISSUE TWO

[¶ 12.] Whether the employer’s liability exclusion set forth in the Zurich policy excludes coverage by Zurich over Loebs in the underlying action.

A. The Employer’s Liability Exclusion.

[¶ 13.] The language in an insurance contract is to be construed liberally in favor of the insured. However, this rule of construction applies only when the language of the insurance contract is ambiguous. Further, the contract’s language must be construed according to its plain meaning. City of Fort Pierre v. United Fire & Cas. Co., 463 N.W.2d 845, 848 (S.D.1990). In determining coverage under the contract, we must look to the contractual intent and objectives of the parties as expressed in the contract. Id.; Black Hills Kennel Club, Inc. v. Fireman’s Fund Indem. Co., 77 S.D. 503, 506-07, 94 N.W.2d 90, 92 (1959).

[¶ 14.] As support for its decision that the employer’s liability exclusion in the Zurich policy excluded coverage for Loebs, the circuit court relied on this Court’s analysis in St. Paul Fire & Marine Ins. Co. v. Schilling, 520 N.W.2d 884 (S.D.1994). Northland argues that the Schilling decision is not applicable and attempts to distinguish the policy language in the Schilling case from the policy language in the Zurich policy. We find this argument unpersuasive.

[¶ 15.] While interpreting an employer’s liability exclusion, this Court in Schilling stated:

The on-the-job exclusion states specifically that coverage will be excluded for claims of an employee of “any protected persons.” It does not limit the exclusion only to employees of “the named insured” nor does it limit coverage only to claims of an employee of “the protected” person.

520 N.W.2d at 887 (emphasis in original). In Schilling, a YMCA employee gave permission to a gymnast-driver to drive a YMCA-owned van home from a gymnastics clinic in North Dakota. Id. at 885. The employee sustained injuries when the driver fell asleep at the wheel and caused an accident. Id. Subsequently, the employee initiated a personal injury action against the driver. Id. at 886. The driver sought coverage for the action as an omnibus insured under YMCA’s liability policy. Id. This Court, finding the employer’s liability exclusion in the policy unambiguous, upheld the exclusion as applied to the omnibus insured where the injured claimant was an employee of the named insured (YMCA), but not an employee of the omnibus insured (driver). Id. at 888.

[¶ 16.] The applicable employer’s liability exclusion in the Zurich policy is as follows:

B. Exclusions
This insurance does not apply to any of the following:
4. Employee Indemnification and Employer’s Liability “Bodily injury” to:
a. An “employee” of the “insured” arising out of and in the course of:
(1) Employment by the “insured”; or
(2) Performing the duties related to the conduct of the “insured’s” business ...

Northland asserts that the employer’s liability exclusion in the Zurich policy only precludes coverage for an insured that was the employer of the injured claimant-employee at the time of the accident. North-land’s reasoning is that because Fetzer was not an employee of Loebs, but rather an employee of UPCI, the exclusion is not applicable and coverage exists. However, an examination of the Zurich policy defining “insured” defeats that contention. The Zurich policy defines “insured” as follows:

“Insured” means any person or organization qualifying as an insured in the Who Is An Insured provision of the applicable coverage. Except with respect to the limit of insurance, the coverage afforded applies separately to each insured who is seeking coverage or against whom a claim or “suit” is brought.

(Emphasis added). The language in the Zurich policy defines “Who Is An Insured” as not only the named insured on the policy, but also any other individual using a covered vehicle with permission from the named insured.

[¶ 17.] We find that the Zurich policy language is not ambiguous. As such, upon examining the policy language, it cannot be said that the employer’s liability exclusion applies to preclude coverage for the underlying action only for an employer of the employee who is asserting the claim. Rather, the exclusion applies to an “insured” as defined under the policy; specifically, the named insured (employer) and a permissive additional insured (omnibus insured).

B. The Severability Provision.

[¶ 18.] Northland also asserts that the existence of a severability provision in the Zurich policy renders the employer’s liability exclusion inapplicable to Loebs and, therefore, coverage exists for him as an omnibus insured. This issue was also addressed in Schilling, where this Court relied on the Eighth Circuit Court of Appeals rationale in Universal Underwriters Insurance Company v. McMahon Chevrolet-Oldsmobile, Inc., 866 F.2d 1060 (8thCir.1989). Id. at 888. The Court of Appeals in Universal Underwriters adopted the rationale from the South Dakota case of Birrenkott v. McManamay, 65 S.D. 581, 276 N.W. 725 (1937), and held that under South Dakota law an omnibus insured is not entitled to any greater liability coverage than that afforded to the named insured who purchased the policy, notwithstanding the presence of a sever-ability of interest clause in the policy.

[¶ 19.] The underpinnings of the Schilling decision were first introduced by this Court in Birrenkott. The Birrenkott case relied on a Wisconsin decision, Bernard v. Wisconsin Automobile Insurance Co., 210 Wis. 133, 245 N.W. 200 (1932), and held that one who invokes a clause in an automobile liability policy protecting any person operating the insured vehicle with consent of the insured is in the same position as the named insured and is subject to general limitations of the policy in the same manner as the named insured. Birrenkott, 276 N.W. at 726. Northland contends that the Bernard decision cited in Birrenkott no longer applies as a result of subsequent Wisconsin decisions culminating with the decision in Gulmire v. St. Paul Fire and Marine Insurance Co., 269 Wis.2d 501, 674 N.W.2d 629 (Wis.App.2003), and, therefore, this Court should rule in line with the courts in Wisconsin and abandon Birrenkott. We disagree.

[¶ 20.] In Gulmire, the Wisconsin court recognized that a severability provision applies as if the additional or omnibus insured is the only insured, regardless of whether it entitles him to greater coverage under the policy than is given to the named insured. 674 N.W.2d at 636-37. We do not adopt the Gulmire decision but instead reaffirm our reasoning in Birrenkott and Schilling. See Schilling, 520 N.W.2d at 889 (holding if severability provision invalidated a policy’s exclusions such provision would operate to provide more coverage to an additional insured than to the named insured, and such an outcome will not be endorsed because it directly contravenes earlier case reasoning); see also Kelly, 288 F.2d at 738 (stating “[t]he [named insured] was paying for the protection of its liability insurance against claims asserted by the public, and not by its own employees.”); American Family Ins. Group v. Howe, 584 F.Supp. 369, 371 (D.S.D.1984) (stating that the “operation of [the] omnibus clause creates liability insurance in favor of persons other than the named insured to the same degree as the named insured.”).

[¶ 21.] Northland also raises the following issues in this appeal:

Whether Zurich may rely on an exclusion in its policy as grounds for avoiding its contractual obligations to its insured when it failed to notify Loebs of this policy defense.
Whether Zurich has a primary duty to defend and indemnify Loebs in the underlying action commenced by Fetzer. Whether Northland may recover attorney’s fees from Zurich for the period in which Zurich failed to defend Loebs in the underlying Fetzer litigation.

[¶ 22.] We do not address these issues because our holdings on issues one and two are dispositive. In addition, there was no ruling by the circuit court on these issues and they are not properly before this Court. City of Watertown v. Dakota, Minnesota & Eastern Railroad Co., 1996 SD 82, ¶ 26, 551 N.W.2d 571, 577 (stating “[w]e have long held that issues not addressed or ruled upon by the trial court will not be addressed by this Court for the first time on appeal.”); Keegan v. First Bank, 519 N.W.2d 607, 615 (S.D.1994); Schilling, 520 N.W.2d at 887 n. 2.

[¶ 23.] Affirmed.

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

[¶ 25.] GIENAPP, Circuit Judge, for SABERS, Justice, disqualified.

      . The first numbered paragraph in the trucking agreement provides, “[t]he Trucking Co. must have and provide proof of insurance.” Loebs signed and dated the trucking agreement on the signature line entitled “Trucking Co. Signature and Date.”

      . Loebs’ Northland policy insured the 1987 Peterbuilt tractor as a covered “auto” under the policy.

      . UPCI's Zurich policy insured the trailer as a covered "auto” under the policy.

      . The Michael Fetzer and Tammy Fetzer v. Chad Loebs d/b/a Loebs Trucking case was filed in District Court, Cass County, North Dakota, East Central Judicial District, and will be referred to as the underlying action.

      . Also relevant is SDCL 32-35-70, referred to as the omnibus clause, which provides in part:
      An owner's policy of liability insurance referred to in § 32-35-68 shall insure the person named therein and any other person as insured, using any insured vehicle or vehicles with the express or implied permission of the named insured, against loss from the liability imposed by law for damages arising out of the ownership, maintenance, or use of the vehicle or vehicles within the United States of America or the Dominion of Canada.

      . In Schilling, the employer’s liability exclusion in the policy was entitled the "on-the-job” exclusion and stated that "[w]e [insurer] won’t cover any claim for bodily injury to an employee of any protected persons arising out of his or her job.” 520 N.W.2d at 886-87 (emphasis in original).

      . This Court went on to state, "[t]he clear terms of the policy exclude liability coverage for an injured employee of ‘any protected persons.’ As [the injured claimant] was an employee of the named insured, and Schilling was an omnibus insured, the exclusion for an employee ... operates to preclude policy coverage for Schilling as a matter of law.” Id.

      .Specifically, Northland argues that because the. employer's liability exclusion states "an ‘employee’ of the ‘insured,’ ” rather than “any insured,” the exclusion applies only to an insured who is the employer of the claimant employee.

      . The severability provision in the Zurich policy is found under the definition of "insured'' and states: "[e]xcept with respect to the Limit of Insurance, the coverage afforded applies separately to each insured who is seeking coverage or against whom a claim or 'suit' is brought.”

      . As previously recognized in Schilling, a number of courts agree with South Dakota's interpretation: Farmers Elevator Mut. Ins. Co. v. Carl J. Austad & Sons, Inc., 366 F.2d 555 (8thCir.1966) (applying North Dakota law); Kelly v. State Auto. Ins. Assoc., 288 F.2d 734 (6thCir.1961) (applying Kentucky law); United States Fid. & Guar. Co. v. Western Cas. & Sur. Co., 195 Kan. 603, 408 P.2d 596 (1965); Industrial Indem. Co. v. Fidelity-Phenix Ins. Co., 83 Nev. 260, 428 P.2d 200 (1967); Maryland Cas. Co. v. American Fidelity & Cas. Co., 217 F.Supp. 688 (D.C.Tenn.1963), aff'd 330 F.2d 526 (6thCir.1964); Pennsylvania Mfrs. Ass’n v. Aetna Cas. Sur. Ins. Co., 426 Pa. 453, 233 A.2d 548 (1967). See Schilling, 520 N.W.2d at 888.

      . In contrast to South Dakota’s interpretation, there are a number of cases that follow the Gulmire rationale and have found coverage for additional insureds for accidents resulting in injuries to the named insured’s employees: Centennial Ins. Co. v. Ryder Truck Rental, Inc., 149 F.3d 378, 385 (5thCir.1998) (applying Mississippi law); Hartford Accident & Indem. Co. v. Continental Cas. Co., 273 F.Supp. 851 (W.D.Mich.1966), aff'd 384 F.2d 37 (6th Cir.1967) (applying Iowa law); General Aviation Supply Co. v. Ins. Co. of North America, 181 F.Supp. 380, 384 (E.D.Mo.1960), aff'd 283 F.2d 590 (8thCir.1960); Penske Truck Leasing Co. Ltd., v. Republic Western Ins. Co., 407 FSupp2d 741 (E.D.N.C.2006); Cal-Farm Ins. Co. v. Fireman’s Fund Ins. Co., 54 Cal.App.3d 708, 126 Cal.Rptr. 704 (1976); Travelers Ins. Co. v. American Cas. Co., 151 Mont. 198, 441 P.2d 177 (1968).


source: Caselaw Access Project

author: TERNUS, Chief Justice.

license: Public Domain

text:
    LAKESIDE CASINO and Zurich-American Insurance Group, Appellees, v. Dana BLUE, Appellant.
    No. 03-1221.
    Supreme Court of Iowa.
    Nov. 9, 2007.

      Max J. Schott of Max Schott & Associates, P.C., Des Moines, for appellant.
    Donna R. Miller and Nicholas J. Mauro of Grefe & Sidney, P.L., Des Moines, for appellees.
   TERNUS, Chief Justice.

The appellant, Dana Blue, injured her foot when she stumbled on her employer’s stairs as she returned to work from a break. The Workers’ Compensation Commissioner awarded benefits to Blue for her injury, concluding her work subjected her to the inherently dangerous activity of traversing stairs. On judicial review, the district court rejected the Commissioner’s conclusion that stairs are inherently dangerous and reversed the award of benefits, stating Blue’s injury coincidentally occurred at work and was not compensable. Blue has appealed this decision. Upon our consideration of the parties’ arguments, we reverse the decision of the district court and remand this case for entry of a judgment affirming the Workers’ Compensation Commissioner’s award of benefits.

I. Background Facts and Proceedings.

The facts surrounding the occurrence of Blue’s injury are largely undisputed. At the time of her injury, Blue was employed as a cocktail server by appellee, Lakeside Casino. On December 31, 2000, she became light-headed and nauseated while on duty and was directed by her supervisor to go to the employee’s lounge until she felt better. After spending approximately forty-five minutes in the lounge, Blue’s symptoms disappeared, and she felt well enough to return to work. Blue left the lounge with several of her coworkers, walked forty feet to a set of stairs, and descended the stairs with no problem. Still conversing with her coworkers, she turned a corner and began walking down a second set of stairs. As she descended the steps, Blue stumbled and grabbed onto a coworker so as not to fall down the stairs. Although she immediately felt a pain in her ankle, Blue continued to the bottom of the staircase without incident. She later denied any light-headedness or nausea at the time of this incident.

Within the next couple of days, Blue’s ankle became painful and swollen, and she could not walk without limping. Despite treatment, Blue continues to have pain in her ankle. She has been diagnosed with possible early complex regional pain syndrome, and her physicians have related this condition to the staircase incident.

Blue sought workers’ compensation benefits from her employer and its insurer, appellee Zurich-Ameriean Insurance Group. A deputy workers’ compensation commissioner presided over the hearing on her claim and determined Blue’s ankle problems arose out of and in the course of her employment at Lakeside Casino. Acknowledging there must be “a causal relationship between the employment and the injury” to satisfy the “arising out of’ requirement for compensability, the deputy relied on two Iowa Supreme Court cases that stated this requirement was satisfied if “the nature of the employment exposes the employee to risk of such an injury” or if the injury is a “rational consequence of the hazard connected with the employment.” See Hanson v. Reichelt, 452 N.W.2d 164, 168 (Iowa 1990); Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 700, 73 N.W.2d 732, 737 (1955). The deputy concluded: “Stairs are inherently more dangerous than a flat, smooth, unobstructed walking surface. A stumble while descending stairs in the course of employment can, as here, cause injury arising out of that employment.”

On appeal to the Workers’ Compensation Commissioner, the Commissioner affirmed and adopted the deputy’s decision as the final agency action, supplementing that decision with some additional analysis. The Commissioner stated:

When injured, [Blue] was on duty and on the employer’s premises. Her employment compelled her to traverse those stairs. Accordingly, any injury she sustained as a result of traversing the stairs arose out of and in the course of her employment unless something in the evidence establishes otherwise.

The Commissioner then reviewed the evidence and concluded Blue had no health impairment that caused her to trip, and therefore, her stumble was not idiopathic. He further observed there was no evidence of “[a] defect in the stairs or other hazardous condition that caused her to trip, beyond the hazard inherent in stairs.” The Commissioner found Blue “simply stumbled, perhaps through her own negligence by not being sufficiently careful while traversing the stairs.” Noting “traversing stairs [is] an inherently hazardous activity,” the Commissioner ruled Blue’s injury was compensable:

[T]he injury occurred from the hazard of traversing stairs and the trauma of stumbling on those stairs while [Blue] was on the employer’s premises and performing actions necessary for her to perform in order to perform the duties of her job. Her injury is compensable.

The employer and insurer sought judicial review. The district court reversed the Commissioner’s decision, rejecting his “legal conclusion” that stairs are inherently dangerous. The court then applied the actual-risk doctrine and determined Blue’s injury did not arise out of her employment. The district court reasoned:

In this case there is no indication that the design of the stairs, condition of the stairs or the lighting of the stairs contributed to Blue’s injury. Nor is there any indication that the conditions of Blue’s employment exposed her to a hazard not generally associated with traversing stairs (for instance, she was not asked to or required to carry large, heavy, or awkward objects while traversing the stairs). Blue’s injury “coincidentally occurred while at work” and therefore did not arise out of work.

Blue has appealed the district court’s judicial review decision.

II. Scope of Review.

Our review is governed by Iowa Code chapter 17A. See Wal-Mart Stores, Inc. v. Caselman, 657 N.W.2d 493, 498 (Iowa 2003). We apply the standards of section 17A.19(10) to the Commissioner’s decision and decide whether the district court correctly applied the law in exercising its judicial review function. Herrera v. IBP, Inc., 633 N.W.2d 284, 286-87 (Iowa 2001).

In determining the proper standard of review, we must first identify the nature of the claimed basis for reversal of the Commissioner’s decision. Here, the employer asserted the Commissioner incorrectly held the employee’s injury arose out of her employment. This issue “presents a mixed question of law and fact.” Meyer v. IBP, Inc., 710 N.W.2d 213, 218 (Iowa 2006). The factual aspect of this decision requires the Commissioner to determine “the operative events that [gave] rise to the injury.” Id. Once the facts are determined, a legal question remains: “[WJhether the facts, as determined, support a conclusion that the injury ‘arose out of ... [the] employment,’ under our workers’ compensation statute.” Id. (quoting Hawk v. Jim Hawk Chevrolet-Buick, Inc., 282 N.W.2d 84, 87 (Iowa 1979)).

In the case before us, there is no dispute as to the facts. Rather, the dispute centers on the Commissioner’s application of the law to the facts. This aspect of the Commissioner’s decision-making process “can be affected by [various] grounds of error such as erroneous interpretation of law; irrational reasoning; failure to consider relevant facts; or irrational, illogical, or wholly unjustifiable application of law to the facts.” Id. (citing Iowa Code § 17A.19(10)(c), (i), (j), (m) (2001)).

Based on the arguments made in the petition for judicial review and the district court’s discussion of the issues in its decision, we conclude our review is governed by section 17A.19(10)(c), (to):

The court shall reverse, modify, or grant other appropriate relief from agency action ... if it determines that substantial rights of the person seeking judicial relief have been prejudiced because the agency action is any of the following:
c. Based upon an erroneous interpretation of a provision of law whose interpretation has not clearly been vested by a provision of law in the discretion of the agency.
to. Based upon an irrational, illogical, or wholly unjustifiable application of law to fact that has clearly been vested by a provision of law in the discretion of the agency.

Iowa Code § 17A.19(10)(e), (to) (2005). “The interpretation of workers’ compensation statutes and related case law has not been clearly vested by a provision of law in the discretion of the agency.” Finch v. Schneider Specialized Carriers, Inc., 700 N.W.2d 328, 330 (Iowa 2005). Therefore, we give the Commissioner’s interpretation of the law no deference and are free to substitute our own judgment. Id. On the other hand, application of the workers’ compensation law to the facts as found by the Commissioner is clearly vested in the Commissioner. See Mycogen Seeds v. Sands, 686 N.W.2d 457, 465 (Iowa 2004). Therefore, we may reverse the Commissioner’s application of the law to the facts only if it is “irrational, illogical, or wholly unjustifiable.” Finch, 700 N.W.2d at 331.

III. Test For “Arising Out Of.”

A. Governing Principles. In order for an injury to be compensable in Iowa, there must be “a connection between the injury and the work.” Meyer, 710 N.W.2d at 221. That connection is established by showing the injury arose out of and in the course of the worker’s employment. Iowa Code § 85.31(1) (2001); Meyer, 710 N.W.2d at 220. In this case, the employer does not dispute that Blue’s stumble on the stairs occurred in the course of her employment, but it does contest the Commissioner’s determination that Blue’s injury arose out of her employment. Not only do the parties disagree whether Blue has carried her burden to prove her injury arose out of her employment, the parties disagree on the proper test under which this element is to be determined. Consequently, we begin our analysis with a discussion of the legal standard that should be employed to determine whether an injury arises out of the worker’s employment.

As this court has noted in prior cases, “[ijnjuries that occur in the course of employment or on the employer’s premises do not necessarily arise out of that employment.” Miedema v. Dial Corp., 551 N.W.2d 309, 311 (Iowa 1996). “The two tests are separate and distinct and both must be satisfied in order for an injury to be deemed compensable.” Id. It is important, therefore, to understand the “in the course of’ test before we address the “arising out of’ test.

The element of “in the course of’ refers “to the time, place, and circumstances of the injury.” Id. To satisfy this requirement, the injury must take place “ ‘within the period of the employment, at a place where the employee reasonably may be, and while the employee is fulfilling work duties or engaged in doing something incidental thereto.’” Meyer, 710 N.W.2d at 222 (quoting 1 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law ch. 12, scope, at 12-1 (2005)).

The element of “arising out of’ requires proof “that a causal connection exists between the conditions of [the] employment and the injury.” Miedema, 551 N.W.2d at 311. “In other words, the injury must not have coincidentally occurred while at work, but must in some way be caused by or related to the working environment or the conditions of [the] employment.” Id.; accord McIlravy v. N. River Ins. Co., 653 N.W.2d 323, 331 (Iowa 2002) (stating injury “must be related to the working environment or the conditions of employment”); Griffith v. Norwood White Coal Co., 229 Iowa 496, 502, 294 N.W. 741, 744 (1940) (stating “injury arises out of the employment if it can reasonably be said to result from a hazard of the employment”). In Hanson, this court adopted the actual-risk rule:

If the nature of the employment exposes the employee to the risk of such an injury, the employee suffers an accidental injury arising out of and during the course of the employment. And it makes no difference that the risk was common to the general public on the day of the injury.

452 N.W.2d at 168. Consequently, with limited exceptions, we have abandoned any requirement that the employment subject the employee to a risk or hazard that is greater than that faced by the general public. Floyd v. Quaker Oats, 646 N.W.2d 105, 108 (Iowa 2002) (stating requirement of increased hazard or exertion only applies to claims of heart attack and mental illness).

Applying these principles, this court has held the following injuries were not com-pensable or, in the penalty-benefits/bad-faith context, arguably not compensable, because they did not arise out of the employee’s employment: (1) a knee injury that occurred as the employee was walking across a level floor, McIlravy, 653 N.W.2d at 331; (2) a neck injury that happened when the employee straightened up after bending over to sign an invoice, Gilbert v. USF Holland, Inc., 637 N.W.2d 194, 200 (Iowa 2001); (3) a back injury that occurred when an employee twisted to flush the toilet, Miedema, 551 N.W.2d at 312; and (4) a back injury that occurred when the employee was leaning against a wall for balance while putting on an overshoe, Musselman v. Cent. Tel. Co., 261 Iowa 352, 361, 154 N.W.2d 128, 133 (1967). We concluded or suggested there was nothing in the conditions of the work environment that caused or was related to the employees’ injuries. See McIlravy, 653 N.W.2d at 331; Gilbert, 637 N.W.2d at 200; Miedema, 551 N.W.2d at 311; Musselman, 261 Iowa at 359-60, 154 N.W.2d at 132.

In contrast to these decisions, we have held the following injuries did arise out of the employee’s employment: (1) death of an employee caused by a deranged co-employee, Cedar Rapids Cmty. Sch. v. Cady, 278 N.W.2d 298, 302 (Iowa 1979); and (2) a head injury that occurred when a mining employee riding a “man trip” struck his head on a beam in the roof of the mine shaft, Griffith, 229 Iowa at 502, 294 N.W. at 744. In both cases, we concluded the injuries were causally connected to a hazard of the employment. Cady, 278 N.W.2d at 302-03; Griffith, 229 Iowa at 502, 294 N.W. at 744. In a third case, this court held an injury occurring when a teacher slipped on ice while checking on the condition of the highway prior to the students leaving school was compensable without any specific discussion of the “arising out of’ requirement other than a statement of the basic definition. See Crowe v. De Soto Consol. Sch. Dist., 246 Iowa 402, 410, 68 N.W.2d 63, 67-68 (1955).

B. Commissioner’s Interpretation of the Governing Legal Principles. With this background, we now turn to the Commissioner’s decision and his discussion of the applicable law. As noted above, the Commissioner adopted the deputy’s proposed decision, but added some additional analysis of his own. We will separately consider both bases of the Commissioner’s decision.

The deputy concluded in his proposed decision that the claimant had to establish a causal connection between her injury and a condition, risk, or hazard of her employment in order to prove her injury arose out of her employment. We find no error in this interpretation of the workers’ compensation statute. As noted above, this court adopted the actual-risk rule in Hanson, and the deputy’s statement of the law is consistent with this rule.

Although the Commissioner incorporated the deputy’s actual-risk analysis into his final decision, the Commissioner also appeared to interpret Iowa law to allow compensation under the positional-risk doctrine. See generally 1 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law § 3.04, at 3-5 (2007) (stating under the actual-risk doctrine, the injury is compensable “as long as the employment subjected [the] claimant to the actual risk that caused the injury”); id. § 3.05, at 3-6 (stating under the positional-risk rule, “[a]n injury arises out of the employment if it would not have occurred but for the fact that the conditions and obligations of the employment placed claimant in the position where he would be injured”). The Commissioner stated in his decision:

When injured, [Blue] was on duty and on the employer’s premises. Her employment compelled her to traverse those stairs. Accordingly, any injury she sustained as a result of traversing the stairs arose out of and in the course of her employment unless something in the evidence establishes otherwise.

The Commissioner seems to be applying the rule “that causal connection is sufficiently established whenever [the employment] brings claimant to the position where he or she is injured.” Id. ch. 7, scope, at 7-1. Iowa has not adopted the positional-risk rule, and we decline to do so now under the circumstances presented by this case.

Larson argues in his treatise that an unexplained fall should be compensated under the positional-risk rule. Id. § 7.04[l][a], at 7-28 to 7-29. Blue argues her injury arose from an unexplained fall, and Iowa should permit compensation under the positional-risk rule. We disagree that Blue’s stumble is unexplained. The Commissioner found that Blue tripped when she lost her footing on the stairs. Such an occurrence is easily explained by the process of going down stairs: one must necessarily lift one’s foot to clear the current step, carefully position one’s foot on the next step, and all the while maintain one’s balance. Blue did not do so. Thus, Blue’s stumble was readily explainable by the natural configuration of stairs and the care required to traverse them.

To the extent the Commissioner interpreted Iowa law to permit an award of benefits under the positional-risk rule, the Commissioner erred. Notwithstanding this error, we do not believe the employer’s substantial rights were prejudiced because the claimant met the “arising out of’ requirement under the actual-risk analysis incorporated in the Commissioner’s final decision. Focusing then on the actual-risk rule, we now examine whether the Commissioner’s decision was “[bjased upon an irrational, illogical, or wholly unjustifiable application of law to fact.” Iowa Code § 17A.19(10)(m).

IV. Application of Law to The Facts of This Case.

In light of the principles and case law reviewed above, we are not persuaded the Commissioner’s application of the actual-risk rule to the facts of this case was irrational, illogical, or wholly unjustifiable. Blue injured her ankle when she stumbled as she was walking down stairs. It was not disputed that these stairs were a condition existing in her workplace. Moreover, it is a matter of common knowledge that stairs pose an actual risk of stumbling or falling when traversing them, similar to the risk posed by going up and down ladders. Although Blue did not stumble due to any particular defect in or condition of the stairs, it is not necessary under Iowa case law that the stairs in Blue’s workplace be more dangerous than a typical set of steps. In addition, it matters not that she stumbled through her own inattention. Blue’s misstep was causally related to the fact that she was walking on stairs, and therefore, the Commissioner rationally concluded her injury arose out of her employment.

This case is decidedly different from Mcllmvy, in which the employee injured his knee walking across a level floor, Gilbert, in which the employee arguably injured his neck straightening up from signing a document, Miedema, in which the employee injured his back turning to flush the toilet, and Musselman, in which the employee injured his back leaning against a wall for balance. See McIlravy, 653 N.W.2d at 326; Gilbert, 637 N.W.2d at 195; Miedema, 551 N.W.2d at 310; Musselman, 261 Iowa at 356, 154 N.W.2d at 130. In each of these cases, although the employee may have been in the course of his employment, there was no condition of his employment, no risk of his employment activities, and no hazard in his workplace that was related to his injury. In contrast, in the present case, Blue stumbled on the stairs, the Commissioner finding that “[t]he injury occurred from the hazard of traversing stairs.” (Emphasis added.) It is this causal relationship between a condition of Blue’s employment — the stairs — and her injury that distinguishes the present case from those in which we have determined the employee’s injury was not compensable.

V. Conclusion and Disposition.

We disagree with the district court’s conclusion that the Commissioner erred in ruling Blue’s injury arose out of her employment. Therefore, we reverse the district court’s judgment and remand this case for entry of a judgment affirming the Commissioner’s decision awarding workers’ compensation benefits to Blue under the actual-risk rule.

REVERSED AND REMANDED.

      . In Meade v. Ries, 642 N.W.2d 237 (Iowa 2002), we stated that the "arising out of” requirement is satisfied when the incident that caused the injury " ’occurr[ed] while the employee [was] engaged in some activity or duty which [the employee was] authorized to undertake, and which [was] calculated to further, indirectly or directly, the employer’s business.’ ” Meade, 642 N.W.2d at 245 (quoting 82 Am.Jur.2d Workers’ Compensation § 265, at 261-62 (1992)). This statement seems indistinguishable from the test for the "in the course of” element of causation, as set forth in Meyer. For this reason, we reject the Am.Jur.2d test as an appropriate definition of the "arising out of” element under Iowa law, disavow any contrary statements in our prior cases, and do not employ the Am.Jur.2d test in determining whether Blue’s injury arose out of her employment by Lakeside Casino. (We note the most recent edition of Am.Jur.2d has omitted the statement quoted in Meade from its discussion of the meaning of the phrase "arising out of.” See 82 Am.Jur.2d Workers' Compensation § 239, at 228-29 (2003)).

      . A claimant seeking compensation for a non-traumatic mental injury caused only by mental stimuli must prove "that the mental injury 'was caused by workplace stress of greater magnitude than the day-to-day mental stresses experienced by other workers employed in the same or similar jobs,’ regardless of their employer.” Dunlavey v. Econ. Fire & Cas. Co., 526 N.W.2d 845, 857 (Iowa 1995) (quoting Graves v. Utah Power & Light Co., 713 P.2d 187, 193 (Wyo.1986), superseded by statute, Wyo. Stat. Ann. § 27-14-102(a)(xi)(J) (Cum.Supp.1996)). When workers’ compensation benefits are sought for an employee’s heart attack, the legal causation required to establish the injury arose out of the employment can be shown in three different ways:
      (1) heavy exertions ordinarily required by the job are superimposed on a defective heart, aggravating or accelerating the previous condition; (2) unusually strenuous employment exertion is superimposed on a preexisting diseased condition; or (3) damage results from continued exertion required by the employment after the onset of the heart attack symptoms.

        Wilson v. Good Will Publishers, 671 N.W.2d 479, 480-81 (Iowa 2003), abrogated on other grounds by P.D.S.I. v. Peterson, 685 N.W.2d 627, 635 (Iowa 2004).

      . As the claimant points out in her brief, this court commented in Miedema on the absence of any evidence that the employment in that case exposed the claimant to an increased hazard or risk. Miedema, 551 N.W.2d at 311. These observations were merely incidental to the primary holding in that case that the claimant had failed to prove a causal connection between his back injury and a hazard or condition of his employment. Id. We disavow any intent in Miedema to retreat from our decision in Hanson to reject the increased-risk rule in favor of the actual-risk rule.

      . This case presented a bad-faith claim brought by a workers’ compensation claimant against the workers’ compensation insurer, claiming the insurer had no reasonable basis to deny his claim for workers’ compensation benefits. McIlravy, 653 N.W.2d at 326-27. The initial information available to the insurer was that the claimant's knee popped as he was walking across a level cement floor. Id. at 326. A later doctor’s report stated that claimant’s work made him more susceptible to the occurrence of such an injury. Id. at 327. We held the information initially available to the insurer gave the insurer a reasonable basis to deny the claim. Id. at 331. Based on this limited information, there was no evidence the injury was "related to the working environment or the conditions of employment.” Id.

      . This workers’ compensation case included a claim for penalty benefits. Gilbert, 637 N.W.2d at 195. There was evidence to support a finding that the claimant was injured when his neck popped as he straightened up after signing an invoice, but there was also evidence that he was injured when he tugged on a stuck dock plate. Id. at 195-96. Although the Commissioner ultimately determined the injury occurred when the claimant pulled on the dock plate, we held the claimant’s claim was fairly debatable. Id. at 197, 201. We held the claimant's initial explanation of his injury — that it occurred as he "straightened up after signing some work documents” — provided a basis for the employer to dispute whether the injury arose out of the claimant’s employment. Id. at 199-200. We noted that if the injury had occurred in this manner, it "would arguably be coincidental to work and would not necessarily be related to the conditions of employment." Id. at 200.

      . The Commissioner found that Blue’s stumble was not idiopathic, and the employer does not challenge this finding on judicial review.

      . The district court concluded the Commissioner incorrectly held a causal connection between Blue’s employment and her injury was established under the actual-risk rule. In explaining why Blue’s injury did not arise out of her employment, the court pointed out there was no "indication that the conditions of Blue’s employment exposed her to a hazard not generally associated with traversing stairs.” Although the district court purported to apply the actual-risk rule, its rationale is more consistent with the discarded increased-risk rule. This detour to increased-risk analysis may account for the district court's mistaken conclusion that the Commissioner’s application of the actual-risk rule was incorrect.

      . We make this statement in reference to McIlravy and Gilbert on the basis of the factual scenario held by the court to provide a reasonable basis for the insurer’s denial of the employee's claim, not on the basis of the facts as found by the Commissioner for purposes of awarding workers’ compensation benefits.


author: STREIT, Justice.

text:
    STATE of Iowa, Appellee, v. James Donald LANE, Appellant.
    No. 06-0024.
    Supreme Court of Iowa.
    Dec. 28, 2007.

      Mark C. Smith, State Appellate Defender, and Martha J. Lucey, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Richard J. Bennett, Assistant Attorney General, Brent D. Heeren, County Attorney, and Richard Vander Mey, Assistant County Attorney, for appellee.
   STREIT, Justice.

We are asked to determine whether James Lane threatened to commit terrorism while in police custody. We find Lane could not have been guilty of the threat of terrorism when he made menacing statements to the sheriff while in custody because there was no reasonable possibility he would imminently act on those threats. It was error to deny Lane’s motion for judgment of acquittal for the threat-of-terrorism charge. However, there was sufficient evidence to submit the charge of intimidation with a dangerous weapon to the jury because an imminent threat is not required to be guilty of intimidation. Moreover, we find defense counsel’s failure to request a specific jury instruction was not prejudicial. We therefore affirm Lane’s conviction with respect to the intimidation count and reverse his conviction for the threat of terrorism.

I. Facts and Prior Proceedings.

On March 19, 2005, Lane’s brother told the Tama County Sheriffs Department Lane was at their mother’s home in violation of a protective order. Officers verified there was a valid protective order requiring Lane to stay away from his mother Dorothy Lane.

Sheriff Dennis Kucera called Dorothy’s residence to see whether Lane was there. Lane answered the telephone. The sheriff and several deputies proceeded to Dorothy’s home in Traer. Sheriff Kucera knocked on the back door. Lane answered the door. He was told he was under arrest for violating the protective order. While being handcuffed, Lane made the following statement: “Sheriff Kucera, you can take this how you want. That Atlanta shooting is not going to be the only thing that’s going to happen. I am going to come down, get a court schedule, and I’m going to take care of all you mother fuckers.” Lane was referring to a courthouse shooting which occurred eight days earlier in Atlanta, Georgia. There, a man on trial for rape, overpowered his guard and then killed a judge, a court reporter, and a deputy sheriff before fleeing. Sheriff Kucera replied, “You don’t even want to go there.” Lane continued, “You guys are all going to be sorry when I get a court schedule.”

Lane was placed in a deputy’s car and transported to the sheriffs office in Toledo. During the drive, Lane continued making comments. Lane said he should have killed his ex-wife in the 1970s because he would have only had to serve twelve- and-a-half years in prison. He also spoke of his distrust of the judicial system and the government.

While Lane was in the booking room of the jail, he said ‘You guys are going to be sorry. You know, I will get a court schedule and be down there.” He did not make any further reference to the Atlanta shooting. Other than “running his mouth,” Lane was obedient at all times.

Based on the statements Lane made to the officers, Lane was charged with (1) intimidation with a dangerous weapon with the intent to injure or provoke fear or anger in another, a class C felony and (2) threat of terrorism, a class D felony. A jury found Lane guilty of the lesser included offense of intimidation with a dangerous weapon and guilty as charged of the threat of terrorism.

On appeal, Lane claims there was insufficient evidence to convict him on either count. He also alleges his trial counsel was ineffective by failing to request a certain jury instruction.

II. Scope of Review.

We review sufficiency-of-evidence challenges for correction of errors at law. State v. Thomas, 561 N.W.2d 37, 39 (Iowa 1997). The trial court’s findings of guilt are binding on appeal if supported by substantial evidence. Iowa R.App. P. 6.14(6)(a). The evidence is substantial if a rational fact finder could find the defendant guilty beyond a reasonable doubt. State v. Heard, 636 N.W.2d 227, 229 (Iowa 2001). “ ‘We view the evidence in the light most favorable to the State, including legitimate inferences and presumptions that may fairly and reasonably be deduced from the’ evidence in the record.” Id. (quoting State v. Mitchell, 568 N.W.2d 493, 502 (Iowa 1997)).

For ineffective-assistance-of-counsel claims, we review the totality of the circumstances relating to counsel’s conduct de novo. State v. Risdal, 404 N.W.2d 130, 131 (Iowa 1987).

III. Merits.

A. Threat of Terrorism. Iowa Code section 708A.5 (2005) states “[a] person who threatens to commit terrorism or threatens to cause terrorism to be committed and who causes a reasonable expectation or fear of the imminent commission of such an act of terrorism commits a class ‘D’ felony.”

“Terrorism” means an act intended to intimidate or coerce a civilian population, or to influence the policy of a unit of government by intimidation or coercion, or to affect the conduct of a unit of government, by shooting, throwing, launching, discharging, or otherwise using a dangerous weapon at, into, or in a building, vehicle, airplane, railroad engine, railroad car, or boat, occupied by another person, or within an assembly of people.

Iowa Code § 708A.1(3).

Lane argues the State did not present sufficient evidence to prove a reasonable expectation Lane would imminently act on his threats. We agree.

The legislature did not define the word “imminent” as used in section 708A.5. As a result, “ ‘we may refer to prior decisions of this court and others, similar statutes, dictionary definitions, and common usage’ to determine its meaning.” State v. Shanahan, 712 N.W.2d 121, 142 (Iowa 2006) (quoting State v. Kellogg, 542 N.W.2d 514, 516 (Iowa 1996)). In Shanahan, we recognized the following definitions of “imminent” for purposes of our self defense/defense-of-others statute: “ ‘ready to take place,’ ‘near at hand,’ ‘hanging threateningly over one’s head,’ and ‘menacingly near.’ ” Id. (quoting Webster’s Third New Int’l Dictionary 1130 (2002)). Lane’s threats do not satisfy any of these definitions.

Lane was in custody when he made the statements to the officers. Because he had been arrested for violating a protective order, he was not subject to release until after appearing in court. Iowa Code § 236.11. As a practical matter, Lane would have been held in jail until at least the next morning. Consequently, there was no reasonable likelihood Lane would imminently act on his threats.

The State contends “[t]he mere fact [Lane] was taken into custody immediately after he made the threats in this case does not rule out the possibility that he could escape and make good on the threats, or could possibly enlist the aid of a confederate to act upon his threats.” While nearly anything is possible, the statute requires a “reasonable expectation or fear of the imminent commission of such an act of terrorism.” Id. § 708A.5 (emphasis added). It was highly unlikely Lane would escape custody. Moreover, there is no evidence in the record to suggest Lane was capable of enlisting the assistance of another person while in custody.

The State complains “law enforcement officers should not have to wait until a defendant, who has previously threatened them, comes after them with a gun before they can make an arrest.” This statement ignores the fact a person making threatening statements to police officers may be charged with intimidation regardless of whether the person threatened imminent harm. Moreover, the State seems to suggest imminence for purposes of section 708A.5, threat of terrorism, should be based on the quality or seriousness of the threat rather than the temporal aspect of the threat. Certainly, our statute does not require a person to threaten the immediate commission of an act of terrorism. Nevertheless, it does require a reasonable expectation the act is impending or about to occur. Lane’s threats could not have been carried out until the next day at the earliest. If we held that was sufficient for a threat of terrorism, we would be left with the odd result of imminence meaning one thing for self defense and another thing for terrorism. For these reasons, we find the district court erred in denying Lane’s motion for judgment of acquittal on the terrorism count.

B. Intimidation with a Dangerous Weapon. Lane also claims there was insufficient evidence to convict him of intimidation with a dangerous weapon. Under Iowa Code section 708.6,

A person commits a class “D” felony when the person shoots, throws, launches, or discharges a dangerous weapon at, into, or in a building, vehicle, airplane, railroad engine, railroad car, or boat, occupied by another person, or within an assembly of people, and thereby places the occupants or people in reasonable apprehension of serious injury or threatens to commit such an act under circumstances raising a reasonable expectation that the threat will be carried out.

(Emphasis added.)

Lane claims the State failed to produce evidence to support a reasonable expectation the threats would be acted upon. We find Lane failed to preserve this error for appeal. While Lane’s counsel moved for a judgment of acquittal on both counts, he focused on the lack of an imminent threat for purposes of the terrorism charge and neglected to provide any grounds to support an acquittal on the intimidation charge. See State v. Crone, 545 N.W.2d 267, 270 (Iowa 1996) (holding motion for judgment of acquittal does not preserve error where there was no reference to specific grounds).

Lane alternatively argues his trial counsel’s failure to preserve error deprived him of the effective assistance of counsel guaranteed by the Sixth and Fourteenth Amendments. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The test for determining whether a defendant received effective assistance of counsel is “whether under the entire record and totality of the circumstances counsel’s performance was within the range of normal competency.” Snethen v. State, 308 N.W.2d 11, 14 (Iowa 1981). The defendant must prove (1) counsel failed to perform an essential duty, and (2) prejudice resulted. Id. To establish prejudice, the defendant must demonstrate the “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698.

We generally prefer resolving ineffective-assistance-of-counsel claims on post conviction relief in order to give trial counsel an opportunity to explain the reasons, if any, for his acts or omissions. See State v. Bass, 385 N.W.2d 243, 245 (Iowa 1986). We will, however, address such a claim on direct appeal if the record is sufficient to do so. State v. Bumpus, 459 N.W.2d 619, 627 (Iowa 1990).

In the present case, we see no reason to delay ruling on this issue. Trial counsel’s explanation is not necessary because counsel did not fail to perform an essential duty. , Even if counsel had articulated grounds for the motion for judgment of acquittal on the terrorism charge, the district court would not have granted the motion because the State presented sufficient evidence for a jury to decide Lane’s statements created a “reasonable expectation that the threat will be carried out.” Iowa Code § 708.6. See United States v. Floyd, 458 F.3d 844, 849 (8th Cir.2006) (“The district court does not decide that a particular communication is a threat as a matter of law, but whether there is sufficient evidence for a jury to decide that a reasonable recipient would interpret it as a threat.”).

We have previously said “[tjhreats need not be explicit; they may be made by innuendo or suggestion.” Crone, 545 N.W.2d at 271 (citing State v. McGinnis, 243 N.W.2d 583, 589 (Iowa 1976)). With respect to the motion for a judgment of acquittal, the issue before the district court was whether there was sufficient evidence for a reasonable jury to find “a reasonable person of ordinary intelligence would interpret [Lane’s] statement as a threat ... in light of the surrounding circumstances.” State v. Milner, 571 N.W.2d 7, 10 (Iowa 1997).

Lane referred to the Atlanta courthouse shooting only eight days after it occurred. He said “[t]hat Atlanta shooting is not going to be the only thing that’s going to happen.... I’m going to take care of all you mother fuckers.” Although he never specifically said he was going to shoot people, given the circumstances, it could reasonably be inferred that is what Lane meant. See Floyd, 458 F.3d at 849 (holding recent newspaper article about a judge’s family being murdered sent to a lawyer and two judges with the words “Be Aware Be Fair” written at the top was sufficient evidence for a jury to find the defendants guilty of mailing threatening communications). Moreover, Lane was very angry when he made the statements to the police. He admitted yelling and cursing at the officers because he wanted to make sure they heard him. The officers testified they did not think he was joking. Instead, they took his threats very seriously. The district court properly submitted the intimidation charge to the jury. Thus, Lane’s attorney was not ineffective for failing to articulate grounds for an acquittal on this charge.

C. Jury Instructions. Lastly, Lane alleges his trial counsel was ineffective for failing to request an objective standard instruction for the “reasonable expectation” component of both counts. He contends the jury should have been instructed the State had the burden to prove a reasonable person would expect the threat to be carried out based on the existing facts and circumstances. We find it unnecessary to reserve this issue for post-conviction relief. Since there was no prejudice, we need not determine whether Lane’s trial counsel failed to perform an essential duty. See State v. Cook, 565 N.W.2d 611, 614 (Iowa 1997) (noting the court may dispose of an ineffective-assistance-of-counsel claim if the defendant fails to meet either the breach of duty or prejudice prong).

The jury was instructed the State must prove for intimidation with a deadly weapon that

1. On or about March 19, 2005, in Tama County, Iowa, the Defendant threatened to shoot a dangerous weapon at, into, or in a building occupied by another person.
[and]
2. The Defendant made the threat under circumstances raising a reasonable expectation that the threat would be carried out.

(Emphasis added.) As we have already alluded, the jury had to determine whether a reasonable person would have expected Lane to act on his threats as opposed to whether the officers themselves felt threatened. This instruction does not state the jury should apply an objective or reasonable-person standard. See State v. Jackson, 305 N.W.2d 420, 424 (Iowa 1981) (approving an instruction explaining reasonable expectation “means whether, under the existing facts and circumstances, a reasonable person would expect that the threat would be carried out”). However, for an ineffective-assistance-of-counsel claim, the defendant must demonstrate the “reasonable probability, that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. The evidence overwhelmingly proved a reasonable person hearing Lane’s statements would have expected him to act on his threats. He referenced a recent courthouse shooting while yelling and cursing at the deputies. He told them more than once they were going to be “sorry” when he got a court schedule. He expressed regret for not killing his ex-wife. Considering the circumstances of Lane’s statements, there is no reasonable probability the results would have been different.

IV. Conclusion.

There was insufficient evidence to submit the threat-of-terrorism charge to the jury. It was error to deny Lane’s motion for judgment of acquittal on that count. With respect to the intimidation charge, there was ample evidence of intimidation to support the jury’s finding of guilt. A new trial for the intimidation count is not necessary because Lane was not prejudiced by trial counsel’s failure to request an objective-standard jury instruction.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

      . After Lane arrived at the sheriff’s office, he declined the opportunity to make a telephone call.

      . Section 708.6 was formerly entitled "Terrorism.” See Iowa Code § 708.6 (2001). In 2002, the legislature changed the title to "Intimidation with a dangerous weapon” and created chapter 708A, which now pertains to "Terrorism.” See 2002 Iowa Acts ch. 1075.


author: WIGGINS, Justice.

text:
    STATE of Iowa, Appellee, v. Gregory Eugene MAXWELL, Appellant.
    No. 06-0228.
    Supreme Court of Iowa.
    Jan. 4, 2008.

      Mark C. Smith, State Appellate Defender, Theresa R. Wilson, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Thomas ‘ S. Tauber, Assistant Attorney General, John P. Sarcone, County Attorney, and Celene Gogerty, Assistant County Attorney, for appellee.
   WIGGINS, Justice.

George Eugene Maxwell appeals the district court’s use of the same two prior felony convictions to classify his crime as a felony under Iowa Code section 124.401(5) (2005) and to sentence him as a habitual offender under section 902.8. Maxwell also claims the district court erred when it denied his motion for new trial without giving any reasons for its denial. Finally, Maxwell requests this court find his trial counsel provided ineffective assistance when he failed to object to an aiding and abetting jury instruction, which the evidence did not support. Because we find the district court did not err by classifying his crime as a felony and sentencing him as a habitual felon based on the same two prior felony convictions, the district court correctly decided Maxwell’s motion for new trial, and his counsel did not provide ineffective assistance, we affirm his conviction and sentence.

I. Background Facts and Proceedings.

On March 19, 2005, police officer Brian Meskimen observed George Eugene Maxwell drive out of a convenience store parking lot onto Aurora Avenue in Urbandale. Officer Meskimen noticed Maxwell was not wearing his seatbelt. Meskimen followed Maxwell on Aurora. Not wanting to pull Maxwell over on the busy one-lane street, Meskimen waited to activate his top lights until Maxwell turned down a side street.' After Meskimen turned on his top lights, Maxwell proceeded down the side street for about one-hundred feet before turning into the driveway of his home. Maxwell stopped the vehicle in the driveway, got out, and started walking toward his home.

By the time Meskimen asked Maxwell to return to his vehicle, Maxwell had reached the front stoop of his house. Maxwell complied with Meskimen’s request and returned to the vehicle, a silver 1983 Oldsmobile Delta.

As Meskimen was advising Maxwell why he stopped him, Meskimen noticed the smell of marijuana on Maxwell. Meski-men also saw a pack of Newport cigarettes sitting in plain view between the two front seats of the vehicle. The front seats in Maxwell’s Oldsmobile were larger seats, more similar to bench seats than bucket seats, with a slit and an armrest to separate them.

The cigarette pack was open, and Meski-men could see a plastic baggie protruding from the pack. Meskimen testified in his five years of experience as a police officer, he knew narcotics were often transported in empty cigarette packs, so he read Maxwell his Miranda rights and asked him for his driver’s license.

Meskimen placed Maxwell in the back of his squad car, and out of safety concerns, asked for Maxwell’s consent to search his person. Meskimen found nothing on Maxwell other than a full pack of Newport cigarettes.

Meskimen then asked Maxwell if he would consent to a search of the vehicle. Maxwell told Meskimen he was borrowing the car and was not sure what all was in the Oldsmobile, but that Meskimen could search it. Meskimen waited for officer Matthew McCarty to arrive on the scene before searching the vehicle. Officer McCarty arrived and watched Maxwell in the back of the patrol car while Meskimen searched the Oldsmobile. McCarty did not participate in the search or the collection of evidence.

Meskimen removed the plastic baggie protruding from the pack of cigarettes found in the car. The baggie contained approximately ten rocks of a white-yellowish substance. Meskimen thought the baggie contained crack cocaine, so he took the cigarette pack and the baggie as evidence. No drug stamp was affixed to the substance or baggie. He continued to search the entire vehicle, but did not seize any other items.

The substance was transported to the department of criminal investigation’s laboratory. The DCI lab concluded the ten rocks were 2.77 net grams of cocaine base.

The State charged Maxwell in two counts. In count one the State charged Maxwell with possession of a controlled substance with intent to deliver, a class “C” felony, in violation of Iowa Code section 124.401(l)(c)(3). In count two the State charged Maxwell with failure to possess a tax stamp, a class “D” felony, in violation of sections 453B.3 and 453B.12. The State also sought a habitual offender enhancement of both charges under section 902.8. Maxwell waived his right to a speedy trial and pled not guilty.

A jury trial was held. Under the first count, the jury found Maxwell guilty of the lesser-included offense of possession of a controlled substance in violation of section 124.401(5). Under the second count, the jury found Maxwell not guilty.

Maxwell filed a motion for judgment of acquittal and a motion for new trial. Maxwell claimed the evidence was insufficient to sustain a conviction for the offense of possession of a controlled substance and that the verdict was contrary to the evidence presented at trial. The court denied the motion without a hearing and without stating its reasons for the denial.

After the jury verdict, the State moved to amend the trial information to permit the enhancement of the possession-of-a-controlled-substance charge based upon Maxwell’s two prior convictions under chapter 124. The State also maintained its original request that the district court sentence Maxwell as a habitual offender. The district court permitted the amendment to the trial information without objection.

Maxwell stipulated in open court to two previous felony convictions. Maxwell stipulated that on both November 5, 1999 and May 31, 2000, he was convicted of possession of a controlled substance with intent to deliver.

During the sentencing hearing Maxwell challenged the State’s request to use the 1999 and 2000 felony convictions both to classify the possession offense as a felony and to sentence Maxwell as a habitual offender. Maxwell argued to the court that the prior felony convictions could be used to classify Maxwell’s current possession offense as a class “D” felony, but those same felony convictions could not be used to sentence Maxwell as a habitual offender. The court rejected this argument, classified the possession conviction as a class “D” felony, and further enhanced the penalty by finding him to be a habitual offender. The court sentenced Maxwell as a habitual offender.

II. Issues.

In his appeal Maxwell claims (1) the district court erred in classifying his crime as a felony and sentencing him as a habitual offender based upon the same two prior felony convictions; (2) the district court erred when it denied Maxwell’s motion for new trial without stating the reasons for its denial; and (3) his trial counsel provided him ineffective assistance when counsel failed to object to the aiding and abetting jury instruction.

III. Analysis.

A. The Two Sentencing Enhancements Based Upon the Same Two Prior Felony Convictions. Maxwell claims the court imposed an illegal sentence. We consider a sentence void if a statute does not authorize it. State v. Gordon, 732 N.W.2d 41, 43 (Iowa 2007). Therefore, we will examine the sentence to determine whether it complies with the relevant statutes. State v. Freeman, 705 N.W.2d 286, 287 (Iowa 2005). Consequently, our review is for correction of errors at law. Id.

The jury found Maxwell guilty of possession of a controlled substance in violation of Iowa Code section 124.401(5). The legislature classifies a violation of section 124.401(5) as either a misdemeanor or felony based on a defendant’s prior drug-related convictions. Iowa Code § 124.401(5). If the defendant has no pri- or drug-related convictions, a violation of section 124.401(5) is a serious misdemean- or. Id. If the defendant has one prior drug-related conviction, a violation of section 124.401(5) is an aggravated misdemeanor. Id. If the defendant has two prior drug-related convictions, a violation of section 124.401(5) is a class “D” felony. Id. Because Maxwell had two prior drug-related convictions, section 124.401(5) classified his violation as a class “D” felony. Maxwell does not complain that his conviction was for a class “D” felony.

Under the legislature’s sentencing scheme for felonies, a person convicted of a class “D” felony, who is not a habitual offender, shall be confined no more than five years, and in addition shall be fined at least $750 but no more than $7500. Id. § 902.9(5). Under the same sentencing scheme, a habitual offender shall be confined no more than fifteen years. Id. § 902.9(3). A habitual offender includes any person convicted of a class “D” felony who has twice before been convicted of a felony. Id. § 902.8. Taking into consideration Maxwell’s two prior felony convictions, the district court sentenced Maxwell to fifteen years as a habitual offender under section 902.9(3) rather than to five years as a class “D” felon under section 902.9(5). Maxwell complains his sentence is illegal because the same prior convictions cannot be used to classify his crime as a felony under section 124.401(5) and to sentence him as a habitual offender under section 902.9(3). He claims he should only be sentenced for five years as a class “D” felon.

For Maxwell to prevail on this issue we must hold the legislature intended chapter 124 to be comprehensive and all encompassing when it comes to sentencing violators of chapter 124. We have rejected this argument in three prior decisions. See State v. Owens, 635 N.W.2d 478, 484-85 (Iowa 2001); State v. Sisk, 577 N.W.2d 414, 416 (Iowa 1998); State v. Draper, 457 N.W.2d 600, 603-04 (Iowa 1990). In those decisions we discussed the interplay between sections 902.9(3) and 124.411. Section 124.411 and its predecessor, section 204.411, permit the sentencing court to triple the term or fine it can impose for an offense committed under chapter 124 if the conviction is a second or subsequent conviction under chapter 124. Id. In holding the legislature did not intend chapter 124 to be comprehensive and all encompassing in regard to sentencing offenders under section 124.411, we determined the sentencing scheme requires the sentencing judge to look first at the violation under chapter 124 to determine the classification of the offense as either a felony or misdemeanor. Draper, 457 N.W.2d at 603. Next, the sentencing judge must look to chapter 902 to determine the appropriate sentence for the defendant’s offense. Id. In reaching this conclusion we noted chapter 124 “clearly was not intended to stand on its own” because chapter 124 only defines the nature of the offense without determining what sentence the sentencing court can impose. Id. We also recognized section 902.9 specifically states it applies to the “‘sentencing of any person convicted of a felony’ unless otherwise specified by another statute.” Id. (citation omitted).

Further indication the legislature intended to allow the same two prior felonies to classify a possession charge as a class “D” felony and to sentence a defendant as a habitual offender can be found in section 124.411. Normally section 124.411 permits the sentencing court to enhance the punishment if the conviction is a second or subsequent conviction under chapter 124. Iowa Code § 124.411(1). However, the legislature exempted this enhancement provision for possession offenses under section 124.401(5). Id. § 124.411(3). Had the legislature wanted to prohibit use of the same prior convictions to classify the crime as a felony under section 124.401(5) and to sentence a defendant as a habitual offender under section 902.9(3), it could have done so with specific language, just as it did in section 124.411(3).

Finally, the legislature’s purpose for enacting a recidivist statute, such as the habitual offender enhancement, is to deter and punish incorrigible offenders. State v. Conley, 222 N.W.2d 501, 503 (Iowa 1974). The legislature made a policy decision to punish a person’s recidivism upon a third felony conviction by classifying those persons as habitual offenders. Under Maxwell’s interpretation he needs to have four prior convictions — two drug-related and two additional felony convictions of any kind — to sentence him as a habitual offender for violating section 124.401(5). To not allow a court to sentence persons convicted of three drug-related felonies as habitual offenders, without specific language exempting them from the habitual offender statute, would severely undercut the legislative intent.

Accordingly, the district court correctly used the same prior convictions for classifying Maxwell’s possession charge as a felony under section 124.401(5) and sentencing him as a habitual offender under section 902.9(3). Therefore, Maxwell’s sentence was legal.

B. The Motion for New Trial. The district court denied both Maxwell’s motion for judgment of acquittal and his motion for new trial. In its order the district court stated in its entirety:

On February 2, 2006, the Defendant by and through his Counsel has brought before the Court a Motion for Judgment of Acquittal and Motion for New Trial. The Court after reviewing the file hereby DENIES the Defendant’s Motion for Judgment of Acquittal and Motion for New Trial.

Maxwell only appeals the district court’s ruling on his motion for new trial. A motion for new trial is distinct from a motion for judgment of acquittal. Compare Iowa R.Crim. P. 2.24(2)(6), with id. 2.19(8).

On a motion for judgment of acquittal, the court is required to approach the evidence from a standpoint most favorable to the government, and to assume the truth of the evidence offered by the prosecution. If on this basis there is substantial evidence justifying an inference of guilt, the motion for acquittal must be denied.
On a motion for new trial, however, the power of the court is much broader. It may weigh the evidence and consider the credibility of witnesses. If the court reaches the conclusion that the verdict is contrary to the weight of the evidence and that a miscarriage of justice may have resulted, the verdict may be set aside and a new trial granted.
... The motion [for new trial] is addressed to the discretion of the court, which should be exercised with caution, and the power to grant a new trial on this ground should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.

State v. Ellis, 578 N.W.2d 655, 658 (Iowa 1998) (quoting 3 Charles Alan Wright, Nancy J. King & Susan R. Klein, Federal Practice and Procedure § 553 (2d ed.1982)).

Maxwell claims the district court erred by failing to state its reasons for denying his motion for new trial and created a situation where this court is left with nothing to review. When making a ruling on a motion for new trial, the trial court should state the reasons for its ruling. Although the trial court failed to do so, under this record we believe we can review the district court’s ruling on Maxwell’s motion for new trial.

“We are obliged to affirm an appeal where any proper basis appears for a trial court’s ruling, even though it is not one upon which the court based its holding.” Citizens First Nat’l Bank v. Hoyt, 297 N.W.2d 329, 332 (Iowa 1980). However, we will not apply this rule to a substantive or procedural issue if the parties did not raise the issue in the district court. See DeVoss v. State, 648 N.W.2d 56, 63 (Iowa 2002) (applying this limitation to substantive or procedural issues but not to eviden-tiary issues).

Even though we have been unable to find a criminal case applying this rule to a motion for new trial when the court denied the motion without giving reasons for the denial, we do have a civil case applying this rule when a court denied a motion to compel arbitration without giving its reasons for the denial. Modern Piping, Inc. v. Blackhawk Automatic Sprinklers, Inc., 581 N.W.2d 616, 620 (Iowa 1998), overruled on other grounds by Wesley Ret. Servs., Inc. v. Hansen Lind Meyer, Inc., 594 N.W.2d 22, 29 (Iowa 1999). In Modern Piping, the district court denied a party’s motion to compel arbitration in a one-line written order that gave no reason for the denial. Id. After reviewing the record, we determined a proper basis appeared in the record to affirm the district court’s denial. Id. at 622.

In the present case, Maxwell requested a new trial under rule 2.24(2)(6 )(6). When deciding such a motion, the district court is entitled to weigh the evidence and consider the credibility of the witnesses. Ellis, 578 N.W.2d at 658. If the court determines the verdict is contrary to the weight of the evidence and a miscarriage of justice may have occurred, it is within the court’s discretion to grant a new trial. Id. The weight-of-the-evidence analysis is much broader than a suffieien-cy-of-the-evidence analysis in that “it involves questions of credibility and refers to a determination that more credible evidence supports one side than the other.” State v. Hitcher, 720 N.W.2d 547, 559 (Iowa 2006). Only in the extraordinary case, where the evidence preponderates heavily against the verdict, should a district court lessen the jury’s role as the primary trier of fact and invoke its power to grant a new trial. State v. Shanahan, 712 N.W.2d 121, 135 (Iowa 2006).

Maxwell clearly raised the issue of whether the verdict was contrary to the weight of the evidence by citing rule 2.24(2)(6 )(6) in his motion. Although the State did not file a written resistance to the motion, the issue of whether the verdict was contrary to the weight of the evidence was the only issue the court needed to decide to determine whether Maxwell was entitled to a new trial. In denying Maxwell’s motion, the district court must have found the jury’s guilty verdict was not contrary to the weight of the evidence. Because Maxwell’s motion raised the issue in the district court, we are allowed to review the record to determine whether a proper basis exists to affirm the district court’s denial of Maxwell’s motion for new trial. In doing so, we review the trial court’s ruling for an abuse of discretion. Nitcher, 720 N.W.2d at 559.

Our review of the record indicates the greater weight of the evidence supports the jury’s verdict. When the State charges a person with possession, the State must prove the person exercised dominion and control over the contraband, had knowledge of the contraband’s presence, and had knowledge the material was a narcotic. State v. Webb, 648 N.W.2d 72, 76 (Iowa 2002). Actual possession is not required, and proof of constructive possession is enough. Id. “[A]ll that is necessary is that the accused ‘maintains control or a right to control’ the contraband.” Id. (citation omitted). A person has actual possession of a controlled substance when that substance is found on the person. State v. Carter, 696 N.W.2d 31, 38 (Iowa 2005). A person has constructive possession of a controlled substance “ ‘when the person has knowledge of the presence of the controlled substance and has the authority or right to maintain control of it.’ ” Id. at 38-39 (citation omitted). Constructive possession is recognized by inferences. Id. at 39 (citing State v. Reeves, 209 N.W.2d 18, 22 (Iowa 1973)). However, constructive possession cannot rest simply on proximity to the controlled substance. State v. Cashen, 666 N.W.2d 566, 572 (Iowa 2003).

Here, Maxwell did not actually possess the drugs. Officer Meskimen found 2.77 net grams of cocaine base in the vehicle Maxwell was driving. However, no drugs were found on Maxwell’s person. Additionally, Maxwell did not own the vehicle in which the officer found the drugs.

When a person has not been in exclusive possession of the premises where the drugs were located, several factors are considered when determining whether the person had constructive possession of the controlled substance. These factors include: (1) incriminating statements made by the person; (2) incriminating actions of the person upon the police’s discovery of a controlled substance among or near the person’s personal belongings; (3) the person’s fingerprints on the packages containing the controlled substance; and (4) any other circumstances linking the person to the controlled substance. Webb, 648 N.W.2d at 79. Further, when the premises is a vehicle, the court may also consider these additional factors: (1) was the contraband in plain view; (2) was it with the person’s personal effects; (3) was it found on the same side of the car or immediately next to the person; (4) was the person the owner of the vehicle; and (5) was there suspicious activity by the person. Carter, 696 N.W.2d at 39. We have stated that all of these factors merely act as a guide to determine whether the State has established constructive possession. Id. Even if some factors are present, the court is still required to determine whether all of the facts and circumstances create a reasonable inference that the person knew of the presence of the controlled substance and had control and dominion over it. Id. at 39-40.

The evidence supporting the verdict that Maxwell constructively possessed the drugs includes: (1) Maxwell was the only person in the Oldsmobile from the time officer Meskimen saw Maxwell pull out of the convenience store until he apprehended him. See Cashen, 666 N.W.2d at 571-73 (finding insufficient evidence to prove constructive possession of a controlled substance found in the backseat of a vehicle occupied by the defendant and six other persons, where defendant and three other persons were in the backseat); (2) the cigarette pack and the protruding plastic baggie containing the drugs were in plain view of Maxwell; (3) the plastic baggie containing the drugs was left inside an empty box of Newport cigarettes, the same brand of cigarettes found on Maxwell’s person. See Carter, 696 N.W.2d at 40 (finding constructive possession where, amongst other factors, only the plastic baggie containing the substance, not the substance itself, was in plain view, and the baggie was not in a location where one would ordinarily leave it); (4) the drugs were found immediately next to Maxwell, lodged between his seat and the front-passenger seat; (5) when Meskimen activated his top lights, Maxwell continued for approximately one-hundred feet until pulling into the driveway of his residence; (6) when Meskimen parked his patrol car so it was partially blocking the driveway, Maxwell did not remain in his vehicle, but instead exited the vehicle, walked toward his residence, and attempted to go inside. See id. (finding constructive possession where, amongst other factors, the driver-defendant did not immediately stop when the police officer activated his lights); and (7) Maxwell was the most recent driver of the vehicle. See State v. Kemp, 688 N.W.2d 785, 790 (Iowa 2004) (finding constructive possession where the defendant was the owner and most recent driver of the vehicle).

The only witnesses to testify at the trial were the four presented by the State. All were police officers for the city of Urban-dale at the time of Maxwell’s arrest. Officer Meskimen testified to the facts pertaining to the stop, search, and arrest of Maxwell. He opined the quantity of drugs found near Maxwell was consistent with an amount possessed by a person with intent to sell the drugs. The second witness, sergeant Matt Logsdon, was not involved in the arrest of Maxwell. He also testified the quantity of drugs found was consistent ■with an amount possessed by someone intending to sell the drugs. The third witness, officer McCarty, was backup to officer Meskimen at the time of the search. He testified he watched Maxwell while Me-skimen conducted the search. The final witness, detective Terry Depold, testified as to the chain of custody of the drugs and his dealings with the DCI criminalistics laboratory regarding the analysis of the drugs.

Maxwell’s attorney challenged the witnesses’ opinions regarding whether the amount of drugs Maxwell had in his possession was consistent with a quantity possessed by someone with intent to deliver. Defense counsel was successful in his questioning because the jury found Maxwell guilty of the lesser-included charge of possession. However, there was no controversy about where the officer found the drugs. The jury made the determination that Maxwell was in constructive possession of the drugs. The jury’s determination of guilt was not contrary to the weight of the evidence.

Accordingly, the district court did not abuse its discretion in overruling Maxwell’s motion for new trial under rule 2.24(2)(5 )(6).

C. The Inclusion of an Aiding and Abetting Jury Instruction. Maxwell claims he was denied effective assistance of counsel when his trial counsel did not object to the aiding and abetting jury instruction. Claims of ineffective assistance of counsel have their basis in the Sixth Amendment to the United States Constitution and thus, are reviewed de novo. Nitcher, 720 N.W.2d at 553. Even though these claims are generally preserved for post-conviction relief, when presented with a sufficient record this court will address such a claim. Id. In this case, the record is sufficient to permit a ruling.

In order to succeed on a claim of ineffective assistance of counsel, a defendant must prove: (1) counsel failed to perform an essential duty; and (2) prejudice resulted. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984); accord Nitcher, 720 N.W.2d at 553. “Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.” Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. In other words, “[¡Ineffective assistance under Strickland is deficient performance by counsel resulting in prejudice, with performance being measured against an ‘objective standard of reasonableness,’ ‘under prevailing professional norms.’ ” Rompilla v. Beard, 545 U.S. 374, 380, 125 S.Ct. 2456, 2462, 162 L.Ed.2d 360, 371 (2005) (internal citations omitted).

Under the first element, we measure counsel’s performance against the standard of a reasonably competent practitioner. Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001). In doing so, we start with the presumption that the attorney performed his duties in a competent manner. Id. In making the determination of whether an attorney failed to perform an essential duty, this court “avoid[s] second-guessing and hindsight.” Id. We scrutinize each claim based on the totality of the circumstances. Id.

Prejudice exists where the claimant proves by “a reasonable probability that, but for the counsel’s unprofessional errors, the result of the proceeding would have been different.” Bowman v. State, 710 N.W.2d 200, 203 (Iowa 2006).

[T]he prejudice prong of the Strickland test “does not mean a defendant must establish ‘that counsel’s deficient conduct more likely than not altered the outcome in the case.’ A defendant need only show that the probability of a different result is ‘sufficient to undermine confidence in the outcome.’ ”

Id. at 206 (citations omitted). To determine whether prejudice exists we “ ‘must consider the totality of the evidence, what factual findings would have been affected by counsel’s errors, and whether the effect was pervasive or isolated and trivial.’ ” Id. (citation omitted).

Maxwell must prove, by a preponderance of the evidence, both that counsel failed to perform an essential duty and that prejudice resulted. Ledezma, 626 N.W.2d at 142. However, if the claim lacks the necessary prejudice, we can decide the case on the prejudice prong of the test without deciding whether the attorney performed deficiently. Id.

As the State points out, “[t]he parties agree that there was no evidence under which Maxwell could be found guilty as an aider and abetter.” True, the district court should not have given the aiding and abetting instruction when no evidence of another person’s involvement was presented at the trial. See State v. Mays, 204 N.W.2d 862, 864 (Iowa 1973); see also State v. Smith, 129 Iowa 709, 717, 106 N.W. 187, 190 (1906) (finding “the giving of a jury instruction which has no basis in the evidence is reversible error”). However, even if we assume defense counsel failed to perform an essential duty by failing to object to the instruction, we are not convinced Maxwell has established the prejudice prong of Strickland.

Maxwell argues the aiding and abetting instruction created prejudice because it misstated his culpability and permitted the jury to speculate about possible facts not presented at trial. Maxwell relies on State v. Jackson, 587 N.W.2d 764, 766 (Iowa 1998) and Mays, 204 N.W.2d at 864, to support his argument. This reliance is misplaced because both Jackson and Mays relate to a defendant challenging jury instructions on direct appeal. See Jackson, 587 N.W.2d at 766 (reviewing the defendant’s direct appeal of the district court’s giving of a joint criminal conduct jury instruction); Mays, 204 N.W.2d at 865 (reviewing the defendant’s direct appeal of the district court’s giving of an aiding and abetting jury instruction).

We have made it clear that ineffective-assistance-of-counsel claims based on failure to preserve error are not to be reviewed on the basis of whether the claimed error would have required reversal if it had been preserved at trial. State v. Broughton, 450 N.W.2d 874, 876 (Iowa 1990). Rather, a defendant must demonstrate a breach of an essential duty and prejudice. Id. In ineffective-assistance-of-counsel claims “the instruction complained of [must be] of such a nature that the resulting conviction violate[s] due process.” State v. Hill, 449 N.W.2d 626, 629 (Iowa 1989).

When the submission of a superfluous jury instruction does not give rise to a reasonable probability the outcome of the proceeding would have been different had counsel not erred, in the context of an ineffective-assistance-of-counsel claim, no prejudice results. State v. Tejeda, 677 N.W.2d 744, 755 (Iowa 2004). Further, when there is no suggestion the instruction contradicts another instruction or misstates the law there cannot be a showing of prejudice for purposes of an ineffective-assistanee-of-counsel claim. Id.

Under the facts contained in this record, we do not believe the aiding and abetting instruction misstated Maxwell’s culpability in a material way. Aiding and abetting occurs when a person actively participates or in some manner encourages the commission of a crime prior to or at the time of its commission. State v. Tangie, 616 N.W.2d 564, 574 (Iowa 2000). Knowledge of the crime is insufficient in and of itself to prove aiding and abetting. Id. Likewise, presence at the scene of the crime, without more, is not enough to uphold a finding of guilty by aiding and abetting. Id. Maxwell was the only person present at the scene of the crime. Although another person owned the vehicle, the record is devoid of any evidence that would allow the jury to find Maxwell encouraged anyone to possess the drugs found in the vehicle or that any of his actions equaled active participation. Under this record, we doubt this instruction had any effect on the jury’s decision.

As we stated in the prior division of this opinion there was sufficient evidence to support the jury’s verdict finding Maxwell guilty of possession of a controlled substance in violation of section 124.401(5). Thus, there was no opportunity for him to be found guilty based on anything other than his own possession of the drugs.

Given the overwhelming evidence supporting Maxwell’s guilt and the negligible effect the aiding and abetting jury instruction could have had on the verdict, we conclude there was no reasonable probability that, but for counsel’s failure to object to the instruction, the result of the proceedings would have been different. See Tejeda, 677 N.W.2d at 755 (finding where the prosecution presents ample evidence of the defendant’s guilt and the effect of the superfluous jury instruction is merely speculative, no prejudice results in an ineffective-assistance-of-counsel analysis).

Accordingly, Maxwell failed to establish the prejudice prong of the Strickland test. Therefore, he failed to prove his ineffective-assistance-of-counsel claim.

IV. Disposition.

Having found the district court did not err by imposing two sentencing enhancements based on the same two prior felony convictions, the district court correctly decided Maxwell’s motion for new trial, and his counsel did not provide ineffective assistance when he failed to object to the aiding and abetting instruction, we affirm Maxwell’s conviction and sentence.

AFFIRMED.