author: PER CURIAM.

text:
    2007 ND APP 4
    Roland C. RIEMERS, Plaintiff and Appellant, v. STATE of North Dakota for the UNIVERSITY OF NORTH DAKOTA, Defendant and Appellee.
    No. 20070063CA.
    Court of Appeals of North Dakota.
    Aug. 22, 2007.
    Rehearing Denied Oct. 2, 2007.
    Review Denied Oct. 16, 2007.

      Roland C. Riemers, Emerado, N.D., pro se.
    Douglas A. Bahr, Solicitor General, Office of Attorney General, Bismarck, N.D., for defendant and appellee.
   PER CURIAM.

[¶ 1] Roland Riemers appealed from a district court judgment dismissing his action for injunctive relief and nominal damages against the State of North Dakota for the University of North Dakota (“UND”). We affirm the dismissal under N.D.R.Civ.P. 12(b) of Riemers’ claim seeking injunctive relief to require UND to allow him to audit law school classes. However, we ■ reverse the dismissal of Riemers’ claim seeking injunctive relief preventing UND from limiting free speech activities on university property, and we remand for further proceedings in accordance with this opinion.

I

[¶ 2] Riemers filed a complaint against UND, asserting two separate claims against the university: (1) UND “[k]now-ingly and repeatedly has denied and/or hindered Riemers, under color of law, his right to free speech under the first amendment of the American Constitution, and the right to speak and collect political signatures under the North Dakota Constitution Article 1, Sections 1, 4, 5 and 21 on University property”; and (2) “the University of North Dakota Law School, acting contrary to University policies and policies by the American Bar Association, [has] repeatedly denied Riemers and other interested members of the public the right to audit Law School classes.” ■

[¶ 3] Riemers sought nominal damages and injunctive relief preventing UND from limiting free speech activities on university property and requiring UND to allow persons to audit law school classes. UND moved to dismiss Riemers’ complaint under N.D.R.Civ.P. 12(b)(vi) for failure to state a claim for which relief can be granted. The district court granted UND’s motion, and judgment was entered dismissing Riemers’ complaint.

II

[¶ 4] On appeal, Riemers asserts the district court erred in dismissing his lawsuit against UND under N.D.R.Civ.P. 12(b). The trial court’s decision granting judgment on the pleadings is reviewed de novo. Riverwood Commercial Park, L.L.C. v. Standard Oil Co., Inc., 2007 ND 36, ¶ 8, 729 N.W.2d 101. A trial court’s decision granting judgment of dismissal for failure to state a claim upon which relief can be granted under N.D.R.Civ.P. 12(b)(vi), will be affirmed by an appellate court if it cannot discern a potential for proof to support the claim. Id. In reviewing the dismissal of a complaint under N.D.R.Civ.P. 12(b):

[W]e recognize that a complaint should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. The court’s inquiry is directed to whether or not the allegations constitute a statement of a claim under Rule 8(a), N.D.R.Civ.P., which sets forth the requirements for pleading a claim and calls for a short and plain statement of the claim showing that the pleader is entitled to relief. The complaint is to be construed in the light most favorable to the plaintiff, and the allegations of the complaint are taken as true. The motion for dismissal of the complaint should be granted only if it is disclosed with certainty the impossibility of proving a claim upon which relief can be granted.

Tibert v. Minto Grain, LLC, 2004 ND 133, ¶ 7, 682 N.W.2d 294 (quoting from McCroskey v. Cass County, 303 N.W.2d 330, 332 (N.D.1981)).

A

[¶ 5] In dismissing Riemers’ claim against UND for denying his right to free speech, the district court stated:

This accusation is not accompanied or supported by any factual contentions in the Complaint. Because Riemers failed to provide any facts in his Complaint to support the claim that his right to free speech has been denied or hindered, the Defendant’s Motion to Dismiss the Complaint for failing to state a claim upon which relief may be issued must be granted.

However, Riemers filed an affidavit with the district court in support of his claim that the university denied his free speech rights. In the affidavit, Riemers stated in part:

During August I and several other petitioners gathered signatures outside the Memorial Union on UND, and had not sought any permission to do so.... But, at the end of August I received a phone call from a University official who reminded me I would have to renew our permission authorization with the University if we were going to do more petitioning in September.... So I filled out the mandated application and about a week later was given a permission letter from Dr. Robert H. Boyd to collect signatures on campus.... [I]n the Memorial Union my petitioners were told they could not go up and talk to students, but instead must set up a sign and let people come to them. Later, when a[n] elderly petitioner was standing beside the Union door beside a sign, two people complained to the Union management that they felt “uncomfortable” about being asked to sign a measure they did not approve of, and shortly thereafter three large University employees were confronting and intimidating this very quiet and very small petitioner to the point she could not work the rest of the day....
During the time we have been petitioning on the university, our normal procedure is to ask passing people “Would you sign the Family Law Reform Initiative?” Occasionally some would ask questions, but most either signed or said no or just continued on their way. We have found though, that just setting [sic] quietly at a table without speaking up is mostly useless for petition gathering.

The district court, in dismissing Riemers’ claim, neither excluded Riemers’ affidavit nor made any reference to it.

[¶ 6] Rule 12(c), N.D.R.Civ.P., provides in part:

If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

We conclude the district court erred in dismissing Riemers’ free speech claim under N.D.R.Civ.P. 12(b) after Riemers had submitted an affidavit which was not expressly excluded by the court. We conclude N.D.R.Civ.P. 12(c) required the court, under these circumstances, to treat the motion as one for summary judgment. Before deciding whether to dismiss the free speech claim, the court must give the parties reasonable opportunity to present all material pertinent to decide the motion to dismiss under N.D.R.Civ.P. 56. We therefore reverse the court’s dismissal of the free speech claim and remand for consideration of UND’s request for dismissal as a motion for summary judgment under N.D.R.Civ.P. 56.

B

[¶ 7] In dismissing Riemers’ claim that UND denied him his right to audit law school classes, the district court stated:

Riemer’s Complaint alleges he was denied the “right” to audit law school classes because UND acted contrary to University and ABA policies. An examination of those policies establishes beyond doubt that Riemers cannot prove a set of facts in support of his claim that his “right” to audit law school classes was denied.

Riemers asserts the district court erred in dismissing this claim under N.D.R.CÍV.P. 12(b) rather than deciding this issue as a summary judgment motion under Rule 56, because UND presented evidence outside the pleadings which was considered by the court. Riemers asserts that, when the court considered policy documents outside the pleadings, N.D.R.Civ.P. 12(c) required it to treat the matter as a summary judgment motion under N.D.R.Civ.P. 56.

[¶ 8] Under N.D.R.Civ.P. 12(c), when the court considers matters outside the pleadings in resolving a motion for judgment on the pleadings, the motion shall be treated as one for summary judgment and disposed of under N.D.R.Civ.P. 56. Wishnatsky v. Huey, 1997 ND 35, ¶ 12, 560 N.W.2d 878. However, federal courts have held that a trial court, in deciding a Rule 12 motion for judgment on the pleadings, may consider, in addition to the pleadings, materials embraced by the pleadings and materials that are part of the public record, without converting the motion to a summary judgment under Rule 56. See, e.g., In re K-tel Int'l Inc. Sec. Litig., 300 F.3d 881, 889 (8th Cir. 2002); Carlson v. Arrowhead Concrete Works, Inc., 375 F.Supp.2d 835, 838 (D.Minn.2005). When a plaintiff chooses not to attach to the complaint, or incorporate by reference, a document upon which the plaintiff relies, and the document is integral to the complaint, the defendant may produce the document in support of a motion to dismiss on the pleadings. Jakobe v. Rawlings Sporting Goods Co., 943 F.Supp. 1143, 1149 (E.D.Mo.1996); Brogren v. Pohlad, 933 F.Supp. 793, 798 (D.Minn.1995). In deciding a Rule 12 motion, the court can consider a document upon which the complaint is based, without treating .the motion as a Rule 56 motion, because a plaintiff “ought not be permitted to defeat a motion to dismiss through the artifice of not attaching the critical document to the complaint.” Brogren, 933 F.Supp. at 798. Although the North Dakota Supreme Court has not addressed this particular application of Rule 12, we believe the rationale expressed by the federal courts is valid and we choose to follow it in this case.

[¶ 9] In his complaint, Riemers asserted UND denied him the right to audit law school classes by acting contrary to university and American Bar Association (“ABA”) policies.- However, Riemers did not attach or incorporate by reference those policies. Subsequently, UND attached the policies as part of the materials submitted in support of its motion to dismiss the complaint on the pleadings under Rule 12. We conclude the policy documents are integral to the complaint and the district court properly considered them in deciding the motion. We further conclude the court did not err in failing to convert or treat UND’s motion as a summary judgment motion under Rule 56.

[¶ 10] In reviewing the UND and ABA policies, we have found no provision which creates a legal right for non-students to attend or audit law school classes. Riemers has failed to show how these policies created a legal right in him to audit law school classes. Furthermore, Riemers has not cited other authority or demonstrated any other basis which gives him a legal right to audit law school classes at the university. We cannot discern a potential for proof to support Riemers’ assertion that the university has denied his legal rights in refusing to allow him to audit law school classes. We, therefore, conclude the district court did not err in dismissing Riemers’ right-to-audit claim under N.D.R.Civ.P. 12(b) for failure to state a claim for which relief can be granted.

Ill

[¶ 11] We reverse the district court’s dismissal of Riemers’ free speech claim and remand for a redetermination of the motion to dismiss that claim, treating the motion as one for summary judgment under N.D.R.Civ.P. 56 and giving the parties all rights afforded thereunder. We affirm the dismissal of Riemers’ right-to-audit claim under N.D.R.Civ.P. 12(b) for failure to state a claim upon which relief can be granted.

[¶ 12] The district court awarded attorney fees to UND on the ground that Riem-ers’ claims were frivolous. In view of our partial reversal and remand of this case for further consideration of Riemers’ free speech claim, we reverse the award of attorney fees. UND’s request for attorney fees on appeal under N.D.R.App.P. 38 is denied.

[¶ 13] BENNY A. GRAFF, S.J., Chief Judge, WILLIAM F. HODNY, and RONALD E. GOODMAN, S.JJ., concur.


source: Caselaw Access Project

author: SABERS, Justice.

license: Public Domain

text:
    2007 SD 79
    STATE of South Dakota, Plaintiff and Appellee, v. Tod Allen WILKINSON, Defendant and Appellant.
    No. 24300.
    Supreme Court of South Dakota.
    Considered on Briefs on May 21, 2007.
    Decided July 25, 2007.

      Lawrence E. Long, Attorney General, Gary Campbell, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
    Clifton Katz, Katz Law Office, Huron, South Dakota, Attorney for defendant and appellant.
   SABERS, Justice.

[¶ 1.] Tod Allen Wilkinson was indicted on a variety of drug charges arising from a search of his residence pursuant to a search warrant. He moved to suppress the evidence alleging the search warrant was deficient, but the motion was denied. A jury found him guilty on all counts and he appealed. We affirm.

FACTS

[¶ 2.] Wilkinson’s arrest arises out of an ongoing drug investigation in Huron, South Dakota. He lived with his girlfriend, Charlene Herding, who was one of the primary targets in the investigation. She came under police suspicion after police arrested Patti Sumption for possession of methamphetamine. Sumption told police she received the drugs from “Cindy” at 1071 Kansas Ave. NE (1071 Kansas Ave.) in Huron and gave police Cindy’s phone number. Police confirmed that Cindy Bordwell lived at that address and the phone number was Cindy’s number.

[¶ 3.] Police also received information from a confidential source that Cindy and Angel Bordwell were distributing large quantities of methamphetamine and possibly cocaine in and around Huron. The police discovered Cindy had a criminal record that included an arrest for possession of amphetamines in Nebraska and Angel lived with Roy Reyna, who was subsequently arrested for possession of methamphetamines. When arrested, he admitted to being a distributor of meth-amphetamines.

[¶ 4.] During the investigation, the police observed Cindy and Angel Bordwell frequenting Herding’s homes on a regular basis. They also observed several cars that Herding owns at Cindy Bordwell’s 1071 Kansas Ave. residence. Finally, a confidential source told a police officer that Herding was renting vehicles in Huron and traveling to Rapid City frequently, although the source indicated it was possible Herding was traveling to another location.

[¶ 5.] At the time the search warrant was executed, Wilkinson and Herding were living at 1108 Dakota Ave. South (1108 Dakota Ave.) in Huron, but were previously living at 1055 Dakota Ave. South (1055 Dakota Ave.), also in Huron. They moved into the 1108 Dakota Ave. residence after the other home sustained fire damage. Despite their moving out, police continued to observe people coming and going from the residence at all hours of the day and night.

[¶ 6.] One evening, the police observed a truck with a Nebraska license at both the 1108 Dakota Ave. and 1071 Kansas Ave. homes. Shortly after the truck left, the police observed a great deal of short and long-term traffic at the 1108 Dakota Ave. residence. Included in this traffic were three individuals that were identified and known to be involved with drugs.

[¶ 7.] As part of this investigation, the police conducted trash pulls from the 1108 Dakota Ave. and 1071 Kansas Ave. residences. At the 1071 Kansas Ave. residence, the police found three scraps of paper that appeared to be “owe” sheets with the name “Char” on two of the sheets. The sheets also had the name Robin and the letter R, which the police were able to determine, stood for Roberta Johnson, residing at 120 Montana Ave. Southwest in Huron. The police conducted a trash pull on the Montana Ave. residence and found two plastic jeweler’s bags which field-tested positive for methamphetamine.

[¶ 8.] A second trash pull was conducted at the 1071 Kansas Ave. address. This trash pull revealed a Wal-Mart sack containing the outer wrappings from four match boxes containing 50 matchbooks. The police found 199 of the matchbooks, which contained all of the matches, but none of the strike plates. According to the police, Herding purchased a very large quantity of matches prior to July 4, 2005, from Manolis Grocery in Huron and was questioned at Coburn’s Grocery in Huron regarding a recent purchase of a large quantity of matches on August 29, 2005.

[¶ 9.] The trash pull from the 1108 Dakota Ave. residence yielded a letter addressed to Charlene Herding at the 1055 Dakota Ave. address, a sheet of paper which read “4 oz,” “5 oz,” and “4830.” In the application for a search warrant, the police indicated the street value for one ounce of methamphetamine is $1000-$1200 per ounce. The police also found a marijuana stem that field-tested positive for THC, a jeweler’s bag that field-tested positive for methamphetamine and a broken, cylindrical glass tube. A second trash pull was conducted and this yielded mail addressed to Char Herding at the 1055 Dakota Ave. address, three plastic zip-lock bags with the corners removed, one package of Zig-Zag rolling papers and two short straws.

[¶ 10.] Special Agent James Legg of the Division of Criminal Investigation (DCI) applied for a search warrant, based on the above and more information included in an eleven-page affidavit in support of request for search warrant. Agent Legg included information received from confidential informants. However, he did not indicate whether these informants were reliable or the source credible. At most, Agent Legg indicated that he “was able to corroborate” some “other information provided” by one confidential informant. Circuit Court Judge Erickson issued the search warrant, which, among other things, authorized a search of the homes at 1055 Dakota Ave. and 1108 Dakota Ave. and all persons and vehicles present or arriving at both homes for property that constituted evidence of a crime.

[¶ 11.] When the police executed the search warrant, they found many drug-related items, including components of a methamphetamine lab. Specifically, at 1108 Dakota Ave. they found two safes containing drug-related contents including digital scales, a container containing .09 grams of powder containing methamphetamine, .003 ounces of marijuana, and a powder that-looked like methamphetamine, but tested negative for controlled substances. The safe also contained documents addressed to Herding at the 1055 Dakota Ave. location. In addition,- one safe contained glass pipes of the type typically used to smoke methamphetamine. These tested positive for methamphetamine residue. Baggies of marijuana, forceps, more pipes, water bongs and a brown vial typically used to conceal controlled substances were also found.

[¶ 12.] At 1055 Dakota Ave., the police located a methamphetamine lab. During the search, Agent Legg asked Agent Jason Even of the DCI if he had seen the lab over at 1055 Dakota Ave. Wilkinson interjected that it was all his. The house had a scanner to monitor police channels and a camera, which allowed someone to monitor the front door from a television in the basement. In a blue cooler, the police found soap bottles, a Gatorade bottle with red liquid inside, coffee filters, lye, two bottles of Heat, a spatula and funnel, other bottles containing unknown liquids and three bottles of cold medicine.

[¶ 13.] In a closet near the blue cooler, police located a box which contained glassware and dishes that had white residue on them, a clear glass plate with a razor blade, a paint brush, two paint scrappers, one with white reside and one with a red substance on it, a spoon, syringe and a hypodermic needle. Two of the glass objects tested positive for amphetamine and methamphetamine. Some of the products tested positive for pseudoephedrine, which, according to the State, indicated they were used in the process of cooking methamphetamine. One of the agents testified that these products are typically used in the manufacturing of methamphetamine.

[¶ 14.] The police also found iodine, acetone, and napthol, which are chemicals commonly found in methamphetamine labs. Coffee grinders were found in a backpack and an agent testified these are used to grind pills so they dissolve more quickly. Also in this pack were a hypodermic needle, balloons, a funnel, and coffee filters. According to Agent Even all of the chemical components necessary for this type of methamphetamine lab were present the night of the raid except for the catalyst. He testified the catalyst needed is commonly acquired from match book strike plates and four grams of red phosphorus can be obtained from 500 strike plates, which allows for eight grams of methamphetamine to be produced. Additionally, the lab would need an enclosed can or 2-liter pop bottle and hydrogen chloride or rock salt, which were not found at the residence.

[¶ 15.] Wilkinson was charged with possession of two ounces or less of marijuana, possession of controlled substance, manufacture of a controlled substance, and conspiracy to manufacture a controlled substance. He moved to suppress the evidence alleging the affidavit contained false information and was insufficient to support probable cause. The motion was denied and Wilkinson and Herding were tried by a jury. The jury found both guilty of all four counts. Wilkinson appeals and raises the following issues:

1. Whether the affidavit in support of the request for a search warrant was sufficient to show probable cause.
2. Whether certain items seized at 1055 Dakota Ave. should be suppressed on the ground they were not described with sufficient particularity within the search warrant.
3. Whether sufficient evidence exists to convict Wilkinson of manufacturing a controlled substance and conspiracy to manufacture a controlled substance.

STANDARD OP REVIEW

[¶ 16.] In State v. Babcock, 2006 SD 59, 718 N.W.2d 624 (2006), we explained the standard when reviewing the sufficiency of a search warrant:

We review challenges to the sufficiency of search warrants in a highly deferential manner, examining the totality of the circumstances to decide if there was at least a “substantial basis” for the issuing judge’s finding of probable cause. State v. Jackson, 2000 SD 113, ¶ 8, 616 N.W.2d 412, 416 (citing Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527, 548 (1983) (citations omitted)). “ ‘A deferential standard of review is appropriate to further the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant.’ ” Id. ¶ 9 (quoting Massachusetts v. Upton, 466 U.S. 727, 733, 104 S.Ct. 2085, 2088, 80 L.Ed.2d 721, 727 (1984)). Our review of the issuing court’s decision to grant the search warrant is done independently of the conclusion reached by the suppression court. Id. ¶ 8.

2006 SD 59, ¶ 11, 718 N.W.2d 624, 628. All reasonable inferences that can be drawn will be construed “in support of the issuing court’s determination of probable cause to support the warrant.” State v. Helland, 2005 SD 121, ¶ 17, 707 N.W.2d 262, 269.

[¶ 17.] 1. Whether the affidavit in support of the request for a search warrant was sufficient to show probable cause.

[¶ 18.] Wilkinson claims the affidavit in support of the search warrant was deficient because the agent did not state that the confidential informants were reliable or that their information was credible. He also claims Agent Legg included false information in the affidavit. As a result of these deficiencies, Wilkinson argues the search warrant was not supported by probable cause and should not have been issued. He claims the evidence was illegally obtained and should have been suppressed.

[¶ 19.] In reviewing the affidavit, we note that the affidavit does not include a statement regarding the credibility or reliability of the confidential informants. While including statements regarding the credibility and reliability of confidential informants may be helpful in determining probable cause, the exclusion of statements does not make a warrant per se invalid. See Illinois v. Gates, 462 U.S. 213, 230-31, 103 S.Ct. 2317, 2328, 76 L.Ed.2d 527 (1983); State v. Jackson, 2000 SD 113, ¶ 9, 616 N.W.2d 412, 416. Instead, we look at the. totality of the circumstances to determine whether the issuing court had a substantial basis to conclude probable cause existed. Gates, 462 U.S. at 230-31, 103 S.Ct. at 2328. Here, the totality of the circumstances demonstrates the affidavit contains sufficient evidence, independent of the confidential informant statements, to support the issuing court’s determination of probable cause.

[¶ 20.] Probable cause to issue a search warrant need not rise to the level of a prima facie case. State v. Helland, 2005 SD 121, ¶ 16, 707 N.W.2d 262, 269 (additional citation omitted). “The standard of probable cause for the issuance of a search warrant is a showing of probability of criminal activity.” Id. (citing State v. Gerber, 90 S.D. 432, 241 N.W.2d 720 (1976); State v. Haron, 88 S.D. 397, 220 N.W.2d 829 (1974)). In this case, the totality of the circumstances indicates a judge could conclude it was more likely than not that the evidence would be found at the residence and there was a substantial basis for the issuing court’s determination of probable cause.

[¶ 21.] Looking at the totality of the circumstances, the affidavit contained substantial evidence supporting probable cause. This is not a bare-bones affidavit that states only speculation. The affidavit contains numerous police observations including traffic flow indicating drug activity, frequent visits from individuals with known drug involvement, massive match book purchases, Herding’s vehicles at Bordwell’s residence, criminal histories and evidence from four trash pulls. These trash pulls yielded evidence of drug activities ranging from “owe sheets” to items with methamphetamine residue. Considering the totality of the circumstances, examination of the affidavit indicates a substantial basis for the issuing court’s determination of probable cause.

[¶ 22J Wilkinson also argues the warrant was improperly granted because the information in the affidavit was stale. He claims the information, except for the trash pull conducted three days before the affidavit was prepared, was obtained two weeks before the search. He argues that the Legislature enacted a statute that indicates probable, cause may dissipate if the search is not conducted within a reasonable amount of time.

[¶ 23.] SDCL 23A-35-4 requires a search warrant to be executed within ten days of being issued. This statute guarantees that too much time does not pass, thus increasing the chance probable cause could dissipate, before police serve a warrant. As the State argues, the statute does not restrict the age of information used to support the issuance of a warrant.

[¶ 24.] We noted in State v. Roth that drug activities are ordinarily a regenerating and continuous activity, which occur over a protracted time. 269 N.W.2d 808, 812-13 (S.D.1978) (additional citation omitted). The police use information gathered during the course of an investigation, which sometimes covers an extended period of time. “The vitality of probable cause” is not calculated solely by the length of time between the evidence and issuance of a warrant. Id. at 813 (quoting United States v. Johnson, 461 F.2d 285, 287 (10th Cir.1972)). Where criminal activity is continuing in nature, the information learned at the beginning of the investigation can be used in addition to the information learned toward the end of the investigation. See State v. Weiker, 342 N.W.2d 7, 10 (S.D.1983) (citing Roth, 269 N.W.2d at 812).

[¶ 25.] The affidavit contained sufficient evidence to support the issuing court’s finding of probable cause. Therefore, we affirm.

[¶ 26.] 2. Whether certain items seized at 1055 Dakota Ave. should be suppressed on the ground they were not described with sufficient particularity within the search warrant.

[¶ 27.] Wilkinson argues that some items seized were “not inherently illegal” and were not listed with particularity in the search warrant. Specifically, he claims items such as the coffee pot and grinder, napthol, acetone, cold medicine, lye, soap bottles, paint scrappers and other items are not illegal to own and were not mentioned within the warrant as potential items to be seized. He argues that the officers suspected methamphetamine manufacturing and should have identified items that could potentially be used in the manufacturing process. According to Wilkinson, failure to list these items violates the Fourth Amendment’s particularity requirement.

[¶ 28.] The search warrant authorized seizure of “[m]arijuana, controlled substances, records, scales, scanners, drug paraphernalia and other obvious drug related items used to introduce controlled substances or marijuana into the human body.” (Emphasis added). Drug paraphernalia is:

any equipment, products, and materials of any kind which are primarily used, intended for use, or designed for use by the person in possession of them, in ... manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body any controlled substance or marijuana in violation of the provisions of this chapter.

SDCL 22-42A-1. Furthermore, the Legislature has provided factors that indicate whether an object is drug paraphernalia. These factors include:

(2) The proximity of the object, in time and space, to a direct violation of this article;
(3) The proximity of the object to controlled substances or marijuana;
(4) The existence of any residue of controlled substances or marijuana on the object; ... and ...
(13) Expert testimony concerning its use.

SDCL 22-42A-2.

[1129.] Under the statutes, the items seized qualified as drug paraphernalia. Most of the items were found in one centralized location, the blue cooler. Other items were found together in the backpack. It was not as if the officer found a coffee grinder and filters in the cupboard. These items were found in a backpack with other items indicating drug use and/or manufacturing. Some of the items had methamphetamine residue on them. The agents testified the items were ones commonly used in manufacturing drugs. The proximity to drugs and other items used to manufacture drugs, along with the residue and testimony these items are commonly used in the manufacturing process indicates these items are drug paraphernalia. The trial court did not err in denying the suppression motion as these items were named with sufficient particularity in the warrant.

[¶ 30.] 3. Whether sufficient evidence exists to convict Wilkinson of manufacturing a controlled substance and conspiracy to manufacture a controlled substance.

[If 31.] Wilkinson’s final argument is that there is insufficient evidence to support the jury verdict on the manufacturing and conspiracy to manufacture a controlled substance. He claims his motion for a directed verdict should have been granted. We review a denial of a motion for judgment of acquittal de novo. State v. Tofani, 2006 SD 63, ¶ 35, 719 N.W.2d 391, 400. We examine whether the jury had sufficient evidence to reasonably find defendant guilty of the manufacturing and conspiracy charges. See id.

[¶ 32.] There • was evidence the operation attempted to and did produce methamphetamine. There was testimony about residue on several items that were commonly used in the manufacturing process. Methamphetamine was found, as was some powder that resembled methamphetamine but did not test positive for methamphetamine. Agent Even testified this was most likely a failed attempt at making methamphetamine. There were several chemicals seized that are used in the manufacturing process. Given this evidence, the jury could reasonably find Wilkinson guilty of manufacturing a controlled substance.

[¶ 33.] Wilkinson argues that there is no evidence of a conspiracy to manufacture methamphetamine. He argues that the indictment provided that the conspiracy occurred on or about January 24, 2006, and the conspiracy, if any, ended when he was arrested on January 23, 2006. Therefore, he claims the jury could not find him guilty of conspiracy on the date provided in the indictment because he was already arrested. Additionally, Wilkinson claims the State must prove the conspiracy occurred during a specific time frame.

[¶ 34.] First, there was ample evidence of a conspiracy. In order to show a conspiracy, the State must establish that “(1) there was an agreement between two or more persons to commit an unlawful act; (2) the defendant was a party to the agreement; and (3) an overt act was committed in furtherance of the agreement by one of the co-conspirators.” State v. Jenner, 434 N.W.2d 76, 81 (S.D.1988) (additional citation omitted). The agreement need not be formal or express as an implied understanding may suffice. Id. “[T]he existence of an agreement may be inferred from all the surrounding facts and circumstances, including the acts and declarations of the alleged co-conspirators that may be indicative of their concerted action toward a common unlawful goal.” Id. at 81-82.

[¶35.] Viewing the evidence in the light most favorable to the verdict demonstrates that a reasonable jury could have found Wilkinson guilty beyond a reasonable doubt. See State v. Berhanu, 2006 SD 94, ¶ 7, 724 N.W.2d 181, 183. The indictment alleged that the act in furtherance of the conspiracy was the purchase of matches on or before January 4, 2006. While Wilkinson asserts the State did not prove the purchase occurred before January 4, 2006, the record indicates otherwise. Lois Polfus, a worker at Coburn’s Grocery Store, testified Herding and Wilkinson purchased a large amount of matches in August 2005. The jury heard about this purchase, previous purchases of matches, evidence of methamphetamine use and manufacture and repeated contact between Herding, Bordwell and Wilkinson, along with Wilkinson’s admission that the methamphetamine lab was all his. The evidence is sufficient to support the guilty verdict.

[¶ 36.] Second, the use of “on or about” language in the indictment does not prejudice the defendant when the date is indefinite both in the indictment and the evidence that the State presents during the trial. State v. Nuzum, 2006 SD 89, ¶ 18, 723 N.W.2d 555, 559. The State charged Wilkinson with crimes occurring “on or about January 24, 2006” and that is what the testimony and evidence proved. The evidence was sufficient to support the verdict. The State does not need to prove a conspiracy occurred during a specific time frame. See SDCL 23A-6-9; United States v. Urick, 431 F.3d 300, 303-04 (8th Cir.2005) (noting that “the use of the term ‘on or about’ in an indictment ‘relieves the government of proving that the crime charged occurred on a specific date, so long as it occurred within a reasonable time of the date specified’ ”) (quoting United States v. Duke, 940 F.2d 1113, 1120 (8th Cir.1991); United States v. White, 241 F.3d 1015, 1021 (8th Cir.2001)). In any event, there was evidence the conspiracy was still occurring as late as January 23, 2006 when the agents discovered a methamphetamine lab and other indications of drug manufacture and use.

[¶ 37.] Finally, there was plenty of evidence to support the jury’s verdict on the manufacture of a controlled substance charge. There was testimony about powder that looked like methamphetamine, but chemically was not and how it was likely a failed attempt in manufacturing methamphetamine. Chemist Roger Mathison testified that one of the bottles contained a methamphetamine water solution, which is part of the process in manufacturing methamphetamine. Finally, there was completed methamphetamine, plus dishes and tools with methamphetamine residue that are commonly used in manufacturing. Our review of this evidence and the record demonstrates the verdict is supported by the evidence.

[¶ 38.] Affirmed.

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

      . The affidavit in support of the search warrant indicated that matchbook strike plates are used to obtain red phosphorus, which is an essential ingredient in some methamphetamine manufacturing processes.

      . One of the bottles of ■ cold medicine was evidently the- type from which methamphetamine cannot be manufactured. Sudafed PE does not contain pseudoephedrine or an ephedrine-based product which are commonly used to make methamphetamine. One bottle was the regular Sudafed and does contain pseudoephedrine or an ephedrine-based product.

      . Bordwell possessed hundreds of matches and separated strike plates when she arrived at her house. A search of her home revealed 32.6 grams of methamphetamine powder. She testified that the matches were for her and Herding’s use, although she claimed the matches were to be used to make fireworks.

      . Agent Legg's affidavit averred that Parole Agent Harrison interviewed Micki Maresh regarding drug use by certain individuals. In the affidavit, Agent Legg claimed that Parole Agent Harrison informed him that Maresh knew Patti Sumption and Char Herding to associate with Cindy Bordwell. Maresh claimed that she did not know Cindy’s last name. In its memorandum opinion, which was incorporated into the findings of fact, the trial court found Maresh did not know Bord-well’s last name. The opinion states in relevant part:
      The Court also finds that certain references to information received from Parole Agent Harrison in the affidavit were incorrect in certain respects, and in connection with those areas the [CJourt finds that the testimony of Parole Agent Harrison and Micki Maresh to be more credible than the statements of the Agent in the affidavit. Specifically that it is believed by the Court that Micki Maresh did not know the last name of Cindy Bordwell and made reference only to Cindy.
      Memorandum Decision at 2, State v. Wilkinson, No. 06-35, (Beadle County July 7, 2006). See infra note 5.

      . The Minnesota Court of Appeals has noted:
      When determining whether a confidential informant's tip provided officers with probable cause to arrest or search, we consider the totality of the circumstances, including the confidential informant’s basis of knowledge, veracity, and reliability. State v. Ward, 580 N.W.2d 67, 71 (Minn.Ct.App.1998); see Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983) (adopting totality-of-the-circumstances approach to probable-cause determinations and abandoning previous approach that required a showing of both basis of knowledge and veracity of confidential informant or reliability of information). In doing so, we do not consider the basis of knowledge, veracity, and reliability independently. Gates, 462 U.S. at 233, 103 S.Ct. at 2329. Rather, "a deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability.” Id.

        State v. Mueller, 2007 WL 1120572, at *3 (Minn.Ct.App. April 17, 2007) (unpublished).

      . In our review of the affidavit, we do not consider the false information contained in the affidavit. Because consideration of this information is not necessary to the probable cause determination, we do not reach the question whether it was made intentionally. See United States v. Ward, 703 F.2d 1058, 1060 (8th Cir.1983) (citing Franks v. Delaware, 438 U.S. 154, 156, 98 S.Ct. 2674, 2676-77, 57 L.Ed.2d 667 (1978)).

      . The statute provides in relevant part that ''[t]he warrant shall be directed to a law enforcement officer. It shall command the officer to search, within a specified period of time not to exceed ten days, the person or place named for the property specified.” SDCL 23A-35-4.


author: MEIERHENRY, Justice.

text:
    2007 SD 95
    Bernard M. EITE, Claimant and Appellant, v. RAPID CITY AREA SCHOOL DISTRICT 51-4, Employer and Appellee, and Associated School Boards of South Dakota Workers Compensation Trust Fund, Provider and Appellee.
    No. 24178.
    Supreme Court of South Dakota.
    Considered on Briefs on Feb. 13, 2007.
    Decided Sept. 5, 2007.

      James D. Leach, Rapid City, South Dakota, Attorney for claimant and appellant.
    Naomi R. Cromwell of Tieszen Law Office, LLC, Pierre, South Dakota, Attorney for appellees.
   MEIERHENRY, Justice.

[¶ 1.] Bernard Eite (Eite) filed a petition for workers’ compensation benefits after he suffered his third back injury while working as a custodian for the Rapid City School District (the District). After extensive expert testimony, the Department of Labor denied Eite’s petition for permanent and total disability benefits under the odd-lot doctrine. Eite appeals and we reverse.

FACTS

[¶ 2.] Eite is fifty-eight years old and came to the Rapid City area from England in 1985. Eite received his education in England during the 1950’s. Eite stated that he “finished” school at age fifteen although he could not say that his education level equated to having a high school diploma. Eite has difficulty reading and writing and has an IQ of 80. Upon arriving in Rapid City, he worked as a dump truck driver and a limousine driver. In 1989, he began working for the District as a custodian.

[¶ 3.] During his employment with the District, Eite suffered three separate back injuries. The first occurred in 1993 when Eite fell on the ice while taking some garbage out to the trash bin. Eite was prescribed pain medication and bed rest and eventually returned to work with the District. The second injury occurred in 1996 when Eite was lifting a box of bleach. Although Eite returned to work, his back pain worsened and he began seeing neurosurgeon Dr. Larry Teuber in 1999.

[¶ 4.] Under Dr. Tueber’s advice, Eite underwent an operation commonly known as an L4-5 fusion and began physical therapy with Dr. Brett Lawlor. Because Eite was restricted from lifting anything over forty-five pounds, he was unable to return to his position as custodian. Consequently, the District offered Eite a job as an Instructional Assistant, which Eite accepted. However, due to Eite’s limited ability to read and write, he struggled in this position. Eite subsequently spoke with Dr. Lawlor about returning to work as a custodian. Dr. Lawlor agreed that Eite could return to work without any lifting restrictions. Eite resumed his position as custodian. At this time, Dr. Law-lor noted that Eite was at a 10% permanent impairment rating.

[¶ 5.] Eite’s third back injury occurred in February of 2001 when Eite fell on the ice while working as a custodian. Eite was restricted from working and began physical therapy. After he failed to see any improvement, Eite accepted the District’s offer to return to work as an Instructional Assistant/Tutor/Noon Duty. Once again, Eite experienced difficulty because he was unable to help students with their work because of his inability to read or write at a sufficient level.

[¶ 6.] Eite’s back pain did not improve and he returned to Dr. Teuber. The District subsequently placed Eite on a leave of absence. In October of 2001, Dr. Teuber performed a second surgery on Eite’s back, wherein a permanent metal device resembling an old-fashioned two-support football goalpost with a crossbar was implanted in Eite’s spine at S-l to L-5 to L-4. As a result of this lower level fusion, Dr. Lawlor restricted Eite to lifting twenty pounds. During the first three months after this surgery, Eite’s back pain persisted. Despite Eite’s participation in physical therapy from January to March of 2002, his pain levels remained the same.

[¶ 7.] In August of 2002, Eite completed his first functional capacities examination (FCE) with physical therapist Myron Sorestad. Sorestad concluded that Eite could work at the “light” level of work as defined by the U.S. Department of Labor Dictionary of Occupational Titles. Ae-cordingly, Eite could not lift more than twenty pounds. Sorestad observed that Eite self-limited his participation in sixteen of the twenty-one tasks. Sorestad noted that self-limitation was common when participants feared re-injury; experienced pain, anxiety, depression; lacked familiarity with a safe physical maximum; or lacked motivation to perform maximally because of financial consequences. Sores-tad noted that self-limitation was common under a variety of circumstances. He reported that patients may self-limit because they fear re-injury, or because they are experiencing pain, depression or anxiety. Self-limitations may also be caused by the patient’s unfamiliarity with the maximum amount of activity and movement they may safely do without pain or reinjury, or because the patient lacks the motivation to perform to their maximum ability because they believe they will lose financial benefits. Eite reported that he limited his participation because of increased low back pain and fear of further injury.

[¶ 8.] Eite was subsequently evaluated by Dr. Lawlor. Dr. Lawlor noted that Eite presented no volitional movement with forward flexion, side bending, extension or extension rotation. Dr. Lawlor prescribed the following limitations and restrictions: “Change position from sit to stand to walk every half hour as necessary. Limit bending and twisting, lifting, walking, crawling, climbing a ladder, and squatting to occasional; maximum lift of 20 pounds.” Eite was restricted to the light work category.

[¶ 9.] Later in 2002, Eite met with psychologist Bobbi Kramlich at the request of the Social Security Administration. Kramlich noted that although Eite had difficulty with number reversals, he still had the intellectual capacity to effectively manage his Social Security benefits. At this time, Eite informed Kramlich that he had “become more depressed just before Christmas when he was informed that workers’ comp was finished and that he was expected to get a job.”

[¶ 10.] Eite met with Rick Ostrander, a vocational rehabilitation counselor, to obtain assistance with his job search. After meeting with Eite, Ostrander realized Eite had limited intellectual functioning so he referred him to Dr. Curt Hill for a psychological and intellectual assessment. The results of Eite’s intelligence testing indicated that he had a verbal IQ of 79, a performance IQ of 86, and a full scale IQ of 80, which placed him in the borderline level of intellectual functioning. Eite’s aptitude testing indicated Eite had a first grade reading level and a fourth grade spelling level. Additionally, Dr. Hill diagnosed Eite as having major depressive disorder, recurrent, of moderate severity.

[¶ 11.] Ostrander also administered a Transferable Skills Analysis to evaluate what type of work might be available to Eite within the Rapid City labor market. Considering Eite’s twenty pound lifting restriction, his age, his previous back injuries, his intellectual functioning, and his depression, Ostrander concluded that there, were very few opportunities for employment for Eite and a job search would be futile. Nevertheless, Ostrander was able to identify a few possible job opportunities, which included work as a taxi driver, courier, messenger or parking lot attendant. However, after contacting such employers, he discovered the positions required Eite to lift more than twenty pounds or paid at a level below Eite’s workers’ compensation rate. Consequently, Ostrander concluded that Eite was not employable within the Rapid City labor market at or above his workers’ compensation benefit rate. Furthermore, Ostrander concluded that Eite would not benefit from vocational rehabilitation and that such training was not feasible.

[¶ 12.] Despite Ostrander’s conclusion that Eite was not employable within his labor market, Eite and his attorney continued searching for suitable employment. Eite checked on job listings at the One Stop Career Center a couple of times per week and read the Rapid City Journal classifieds regularly. Eite followed up on several job leads and kept a written log of his job search. However, Eite failed to find any open positions to apply for that would accommodate his lifting restrictions or that met his workers’ compensation rate. Eite also applied for rehabilitation services from the South Dakota Division of Rehabilitation Services and purchased a security guard license, but he was still unable to obtain employment.

[¶ 13.] Eite also met with Bruce Rogers, a vocational rehabilitation counselor, for job search information. After meeting with Eite, Rogers concluded that a work search would not be futile and provided Eite with twenty-six job leads. Rogers noted that Eite followed up on all of the job leads he was provided but failed to submit an application for positions that had been filled. Rogers felt that Eite should have submitted an application regardless of whether the position was filled in order to be considered for possible future openings. Consequently, he labeled Eite’s job search as one of the poorest he had ever seen.

[¶ 14.] Eite was also asked to submit to an independent medical exam (IME). Dr. Anderson facilitated the IME and noted that Eite reported that he had difficulty carrying on any sustained activity besides lying down for more than one-half hour at a time. Eite demonstrated a five degree flex motion and a zero degree extension. Dr. Anderson described Eite’s range of motion as an “incredible restriction.” Dr. Anderson restricted Eite to work at a light work category, with twenty pounds maximum lifting and ten pounds frequent lifting.

[¶ 15.] In 2003, physical therapist Nano Johnson administered Eite’s second FCE. She noted that when asked to bend from his waist, Eite moved forward only three degrees and back only four degrees, causing Johnson to opine that Eite’s range of motion was “out of the realm” of anything she had ever seen. Eite also refused to squat, stating that he was afraid he would injure his back. However, when Johnson incorporated squatting and bending at the waist into other activities, Eite did a full squat several times and bent at the waist significantly more than he had previously demonstrated. Therefore, Johnson concluded that Eite was “trying to demonstrate some weakness that wasn’t there” and concluded that the FCE was invalid.

[¶ 16.] Eite filed a petition for workers’ compensation benefits in January of 2003. At the hearing, both parties presented extensive expert testimony. Vocational counselor Rogers testified for the District. Rogers identified fourteen prospective employers who indicated they would be willing to modify the job requirements to meet Eite’s limitations. However, Rogers failed to disclose to these employers any of Eite’s limitations, including the twenty pound lifting restriction.

[¶ 17.] The Department concluded that Eite failed in his ultimate burden of persuasion because he misrepresented his physical capabilities to his medical providers, because of the lack of objective medical evidence to support his assertions of total disability, and because of his lack of credibility at the hearing. The Department’s credibility determinations stemmed from a surveillance video made by a private investigator hired by the District. In one particular portion of the video, Eite is shown camping and boating over a four day period with his family in August of 2003. During this time, Eite climbs in and out of his fishing boat, lifts a trolling motor, helps his son lift a picnic table, and exits the boat on a steep shoreline to untangle his granddaughter’s fishing line from a fallen tree. Eite’s relatively normal, fluid motion in the video conflicted with the pain behavior he demonstrated to his medical providers.

[¶ 18.] At the hearing, Eite’s increased mobility in the surveillance video was noted by expert witnesses on both sides. All of the experts agreed there were significant differences in the surveillance video and the way Eite presented at his medical appointments; nevertheless, the experts agreed that Eite’s two-level fusion required physical limitations and restrictions. Dr. Lawlor testified that Eite’s two-level fusion made him prone to accelerated degeneration of the joint or disc, which would cause increased pain and potential disc herniation. Dr. Lawlor maintained that Eite should be limited to light duty work with lifting restrictions of twenty pounds. He liberalized Eite’s restriction on bending, twisting, and crawling from occasional to more frequent and the necessity of changing positions from every one-half hour to every forty-five minutes as necessary.

[¶ 19.] The Department accepted Dr. Lawlor’s testimony regarding Eite’s physical restrictions in its findings, stating, “Based upon the expert medical evidence, Claimant is physically capable of working at least at a light duty, full time level with a lifting limit of 20 pounds and position changes every 45 minutes.” Nevertheless, the Department concluded that Eite “failed in his burden of production and in his burden of persuasion.” Specifically, the Department found that Eite “failed to conduct a reasonable, good faith work search.” Alternatively, the Department stated that if Eite met his burden of production, the District met its burden to demonstrate the regular and continuous availability of suitable work in Eite’s community. Eite appeals and raises the following issues:

ISSUES

1. Whether the circuit court erred in affirming the Department’s finding that Bernard Eite did not show a prima facie case under the odd-lot doctrine.
2. Whether the circuit court erred when it affirmed the Department’s failure to find the District’s vocational expert’s testimony inadequate as a matter of law because the vocational expert did not tell any prospective employers about Eite’s limitations.
3. Whether the circuit court erred when it affirmed the Department’s finding that Eite did not carry his burden of proof under the odd-lot doctrine.

STANDARD OF REVIEW

[¶20.] When reviewing an administrative agency’s decision, this Court’s standard of review is well settled and governed by SDCL 1-26-37, which provides that on review we “ ‘shall give the same deference to the findings of fact, conclusions of law, and final judgment of the circuit court as it does to other appeals from the circuit court.’” Wise v. Brooks Const. Services, 2006 SD 80, ¶ 16, 721 N.W.2d 461, 466 (quoting Holscher v. Valley Queen Cheese Factory, 2006 SD 35, ¶ 28, 713 N.W.2d 555, 564). “The Department’s factual findings and credibility determinations are reviewed under the clearly erroneous standard.” Id. (additional citations omitted). These findings will only be reversed “if we are definitely and firmly convinced a mistake has been made.” Id. (Kuhle v. Lecy Chiropractic, 2006 SD 16, ¶ 16, 711 N.W.2d 244, 247). “ ‘[Findings based on deposition testimony and documentary evidence are reviewed under the de novo standard of review.’ ” Id. (quoting Holscher, 2006 SD 35, ¶ 29, 713 N.W.2d at 564). “Questions of law are reviewed de novo. Mixed questions of law and fact are also fully reviewable.” Id. (internal citations and quotations omitted). The burden is ultimately on the claimant to prove all facts essential to compensation. Id. (citing Kuhle, 2006 SD 16, ¶ 15, 711 N.W.2d at 247).

ANALYSIS

[¶ 21.] “ ‘Whether a claimant is entitled to odd-lot disability benefits is a question of fact subject to review under the clearly erroneous standard.’ ” Wise, 2006 SD 80, ¶ 27, 721 N.W.2d at 470-71 (quoting Kassube v. Dakota Logging, 2005 SD 102, ¶ 34, 705 N.W.2d 461, 467). SDCL 62-4-53 governs whether a person is totally and permanently disabled and provides in part:

An employee is permanently totally disabled if the employee’s physical condition, in combination with the employee’s age, training, and experience and the type of work available in the employee’s community, cause the employee to be unable to secure anything more than sporadic employment resulting in an insubstantial income. An employee has the burden of proof to make a prima facie showing of permanent total disability. The burden then shifts to the employer to show that some form of suitable work is regularly and continuously available to the employee in the community. The employer may meet this burden by showing that a position is available which is not sporadic employment resulting in an insubstantial income as defined in subdivision 62-4-52(2). An employee shall introduce evidence of a reasonable, good faith work search effort unless the medical or vocational findings show such efforts would be futile. The effort to seek employment is not reasonable if the employee places undue limitations on the kind of work the employee will accept or purposefully leaves the labor market. An employee shall introduce expert opinion evidence that the employee is unable to benefit from vocational rehabilitation or that the same is not feasible.

Pursuant to SDCL 62-4-53, there are two ways Eite could make a prima facie showing that he is entitled to benefits under the odd-lot category.

First, if the claimant is obviously unemployable, then the burden of production shifts to the employer to show that some suitable employment within claimant’s limitations is actually available in the community. A claimant may show obvious unemployability by: 1) showing that his physical condition, coupled with his education, training, and age make it obvious that he is in the odd-lot total disability category, or 2) persuading the trier of fact that he is in the kind of continuous severe and debilitating pain which he claims.
Second, if the claimant’s medical impairment is so limited or specialized in nature that he is not obviously unemployable or regulated to the odd-lot category, then the burden remains with the claimant to demonstrate the unavailability of suitable employment by showing that he has made reasonable efforts to find work and was unsuccessful. If the claimant makes a prima facie showing based on the second avenue of recovery, the burden shifts to the employer to show that some form of suitable work is regularly. and continuously available to the claimant. Even though the burden of production may shift to the employer, however, the ultimate burden of persuasion remains with the claimant.

Wise, 2006 SD 80, ¶ 28, 721 N.W.2d at 471 (quoting Sandner v. Minnehaha County, 2002 SD 123, ¶ 10, 652 N.W.2d 778, 783) (emphasis in original).

1. Whether Eite made a prima facie showing that he was entitled to benefits under the odd-lot doctrine

[¶22.] Eite argues that the Department erred when it concluded that Eite failed to make a prima facie showing that he was entitled to benefits under the odd-lot doctrine. Specifically, Eite limits his challenge to whether he demonstrated the unavailability of suitable' employment by showing that he had made reasonable efforts to find work and was unsuccessful. “The effort to seek employment is not reasonable if the 'employee places undue limitations on the kind of work the employee will accept or purposefully leaves the labor market.” SDCL 62-4-53. The Department concluded that Eite’s job search was not reasonable because he misrepresented his pain to medical providers and because of Rogers’ testimony that Eite’s job search was unreasonable.

[¶ 23.] “The test to determine whether a prima facie case has been established is whether there ‘are facts in evidence which if unanswered would justify persons of ordinary reason and fairness in affirming the question which the plaintiff is bound to maintain.’ ” Sandner v. Minnehaha County, 2002 SD 123, ¶ 13, 652 N.W.2d 778, 783. The facts regarding Eite’s job search included regularly checking with the Career Center, regularly reading the Rapid City Journal, following up on job leads provided by Bruce Rogers, undergoing testing at the One Stop Career Center, applying for Rehabilitation Services from the South Dakota Division of Rehabilitation Services, and purchasing a private security guard license. Such steps, if unanswered, would justify a person of ordinary reason and fairness in concluding that Eite’s efforts to seek employment were reasonable.

[¶ 24.] This is not a case where a claimant failed to follow up on job leads and ignored the advice of vocational counselors. Cf. Sandner, 2002 SD 123, ¶ 26, 652 N.W.2d at 785 (claimant failed to show reasonable efforts to find employment when he did not follow up on 32 of 95 job leads); Wagaman v. Sioux Falls Const., 1998 SD 27, 576 N.W.2d 237 (noting that claimant’s one attempt to reenter work force did not constitute a reasonable effort). Rather, this is a case where the claimant followed up on every job lead he was given. This fact was supported by Rogers, the District’s vocational expert, who admitted that Eite followed up on all twenty-six of the job leads he supplied to Eite. Specifically, Rogers testified, “I’m not - I’m not contesting anything with [Eite’s attorney] about his following up. He did follow up on things. He did make phone calls. He did go out.” However, Rogers labeled Eite’s job search efforts as “poor” because of Eite’s failure to submit applications to employers where the position had been filled in order to be considered for possible future employment. Eite was required to introduce evidence of “a reasonable, good faith work search effort.” SDCL 62-4-53. This omission does not make Eite’s job search unreasonable. See Capital Motors, LLC v. Schied, 2003 SD 33, ¶ 12, 660 N.W.2d 242, 247 (stating that employer must show more than mere possibility of employment).

[¶ 25.] Nevertheless, the District argues that we must give deference to the Department’s determination that Eite did not complete a good faith job search because it was based on Eite’s lack of credibility. However, the Department did not base its credibility determination on a finding that Eite was a malingerer or that he had lied about his job search efforts. Rather, the Department emphasized Eite’s lack of credibility in terms of his subjective pain experience and mobility. Even though the Department questioned Eite’s credibility as to pain and mobility, it recognized that he had certain physical limitations including a twenty-pound lifting restriction. Eite’s evidence showed that his job search and vocational counseling were based on those physical limitations. Therefore, Eite’s exaggerated pain and feigned lack of mobility were not a factor in his job search. Accordingly, Eite established a prima facie case and the burden shifted to the District to show that some form of suitable work was regularly and continuously available to the claimant. See Wise, 2006 SD 80, ¶ 29, 721 N.W.2d at 472; SDCL 62-4-53.

2. Whether the District met its burden of showing that suitable work was regularly and continuously available in the community.

[¶ 26.] The Department concluded that the District met its burden to show that some form of suitable work was regularly and continuously available to Eite within the Rapid City labor market which was not sporadic employment resulting in insubstantial income. After Eite made a prima facia showing of odd-lot permanent total disability

[t]he burden then shift[ed] to the employer to show that some form of suitable work is regularly and continuously available to the employee in the community. The employer may meet this burden by showing that a position is available which is not sporadic employment resulting in an insubstantial income as defined in subdivision 62^4-52(2).

SDCL 62-4-53. The District presented the testimony of vocational counselor Rogers in an attempt to meet this burden. Rogers testified that he provided Eite with several job leads that he felt would accommodate Eite’s restrictions. However, Rogers testified that he did not inform any of the employers he contacted about Eite’s twenty-pound lifting restriction, his previous back injury, his age, his reading and writing limitations, or his doctor’s recommendation that he switch positions every forty-five minutes. Consequently, Eite argues that Rogers’ testimony is inadequate as a matter of law because the District was required to show the existence of “ ‘specific’ positions ‘regularly and continuously available’ and actually open in ‘the community where the claimant is already residing’ for persons with all of claimant’s limitations.” Stang v. Meade School Dist 46-1, 526 N.W.2d 496, 499 (S.D.1995) (quoting Shepherd v. Moorman Mfg., 467 N.W.2d 916, 920 (S.D.1991) (emphasis in original)).

[¶ 27.] Based on Rogers’ testimony, the Department concluded that the District demonstrated that there were positions open within the community that would accommodate Eite’s physical limitations. Although in a battle of experts, we usually defer to the Department’s finding, omitting such significant pieces of information regarding a claimant’s abilities has led this Court to discount a vocational rehabilitation counselor’s testimony in prior cases. See Kurtz v. SCI, 1998 SD 37, ¶ 21 n. 6, 576 N.W.2d 878, 885 n. 6 (stating that it was significant that counselor failed to inform prospective employers about claimant’s physical limitations when he inquired into available jobs); Rank v. Lindblom, 459 N.W.2d 247, 250 n. 1 (S.D.1990) (noting that counselor left out significant pieces of information regarding claimant’s abilities). Therefore, the Department erred when it accepted Rogers’ opinion that there were open and available positions within the Rapid City labor market that could accommodate Eite’s physical limitations.

[¶ 28.] An expert’s listing of jobs that focuses on a claimant’s capabilities to the exclusion of his limitations is insufficient as a matter of law. When prospective employers were not informed of the nature of the limitations they needed to accommodate, there was no basis for the expert’s opinion in concluding that the employers were willing to make modifications to meet those limitations. Therefore, the Department’s acceptance of the job search, identifying fourteen prospective employers, based solely on Eite’s capabilities to the exclusion of his limitations is an error of law. Accordingly, we reverse. Because the District failed to meet its burden as a matter of law, we need not consider the remaining issue of whether Eite carried his burden of proof under the odd-lot doctrine.

[¶ 29.] For the aforementioned reasons, we reverse and remand for entry of judgment consistent with this opinion.

[¶ 30.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and ZINTER, Justices, concur.

      . Eite testified that he has hidden his inability to read and write from everyone but his wife. Eite further testified that when he is asked to read anything, he uses his lack of eyeglasses as an excuse.

      . This surgery consisted of the following: an L4-5 anterior lumbar interbody arthodesis, with insertion of an interdiscal prosthetic tricortical threaded dowel, and harvesting of the right anterior iliac bone crest graft through a separate incision for spinal arthrodesis.

      . The District's position description for Instructional Assistant described the basic function of the position as follows: "To actively assist the classroom education teacher in all facets of the instructional process.” The job responsibilities included: "To assist with the basic skills needs of assigned students in cooperation with the classroom teacher.”

      . The second surgery consisted of the following: laminectomy and foraminotomy fa-cetectomy of the bilateral L4 nerve roots; laminectomy, foraminotomy, lateral recess decompression of the L5 nerve root; lami-nectomy foraminotomy of the S1 nerve roots; transpedicle screw instrumentation at L4-S1 with Texas Scottish Rite trans pedicle screw fixation; arthodesis posterior onlay transverse process utilizing autograft at L4-5 bilaterally; and a posterior lumber interbody arthodesis of the L5-S1 segment utilizing the autograft and allograft.

      .Dr. Lawlor released Eite to work within the guidelines of the FCE but limited his lifting. Additionally, Dr. Lawlor required Eite to take frequent breaks with no more than 60 minutes of continuous sitting, standing, walking, or bending.

      . Ostrander testified that a study in the Journal of Private Sector Rehabilitation found that 99 out of 100 employers admitted to being biased against hiring someone with a back injury.

      . The parties stipulated that Eite sustained an injury arising out of and in the course of his employment in 2001; that Eite had prior work-related compensable back injuries in 1993 and 1996; and that those pre-existing injuries contributed independently to Eite's current disability, impairment, or need for treatment.

      . The Department also rejected District's expert testimony suggesting that Eite was a malingerer.

      .The Department made findings on every element in SDCL 62-4-53. The findings were as follows:
      7. Claimant failed to demonstrate "obvious unemployability” as defined by the "odd-lot” doctrine.
      8. Claimant failed to show that his physical condition, in combination with his age, training, and experience and the type of work available in his community, cause him to be unable to secure anything more than sporadic employment resulting in an insubstantial income.
      9. Although the burden of production did not shift to Employer/Provider, Employer/Provider met its burden showing that some form of suitable work is regularly and continuously available to Claimant in his community by showing insubstantial income as defined in SDCL 62-4-52(2).
      10. The medical and vocational findings do show that a work search would not be futile for Claimant and could return Claimant to suitable, substantial and gainful employment.
      11. Claimant’s job search was not a good faith, reasonable work search.
      12. Claimant failed to demonstrate that vocational rehabilitation is not feasible solution to his alleged inability to find employment.


author: WIGGINS, Justice.

text:
    STATE of Iowa, Appellee v. Christopher Barron SMITH, Appellant.
    No. 05-2072.
    Supreme Court of Iowa.
    Sept. 7, 2007.
    Rehearing Denied Oct. 9, 2007.

      Mark C. Smith, State Appellate Defender, and Theresa R. Wilson, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Thomas S. Tauber, Assistant Attorney General, Matthew D. Wilber, County Attorney, and Jon Jacobmeier, Assistant County Attorney, for appellee.
   WIGGINS, Justice.

Relevant to this appeal, a jury returned a verdict finding Christopher Barron Smith guilty of assault with intent to inflict serious injury, willful injury causing serious injury, assault on a peace officer while using or displaying a dangerous weapon, and assault while participating in a felony. The district court instructed the jury it could find Smith guilty of these crimes either as a principal, an aider and abettor, or under the theory of joint criminal conduct. Smith objected to the instructions on the ground there was insufficient evidence to submit these charges under the theory of joint criminal conduct. Because we agree the evidence was insufficient to submit these charges under the theory of joint criminal conduct, and the district court only instructed the jury to return a general verdict for each charge, we reverse Smith’s conviction as to these crimes and remand the case for a new trial on the charges of assault with intent to inflict serious injury, willful injury causing serious injury, assault on a peace officer while using or displaying a dangerous weapon, and assault while participating in a felony.

I. Background Facts.

In viewing the evidence in the light most favorable to the State, a reasonable jury could have found the facts as follows. On November 9, 2004, Colteen Dineen planned to travel from his home in eastern Nebraska to Chicago, Illinois to steal cars. Dineen enlisted the help of Jeremy Clark in exchange for a handgun and a Camaro. Smith wanted to leave town and decided to go along for the trip. Smith did not know the purpose of the trip.

The three men planned to travel in a Lincoln Navigator driven by Dineen. Dineen stole the Navigator from a car dealership a few weeks prior to November 9. Although Clark assumed the Navigator was stolen, Dineen did not tell either Smith or Clark that it was stolen. Smith thought the Navigator was owned by Dineen’s aunt and that Dineen was making car payments to her.

Prior to beginning the trip, Smith helped Dineen load the vehicle with handguns, rifles, and shotguns. Before leaving, at approximately 10 p.m., Dineen, Clark, and Smith made stops at a Wal-Mart, a fast food restaurant, and a friend’s house. They also used methamphetamine prior to leaving Nebraska.

Dineen drove the Navigator with Smith sitting in the front-passenger seat and Clark sitting in the rear-bucket seat loeat-ed behind the front-passenger seat. When they left Nebraska a handgun was lodged between Smith’s seat and the console separating the driver’s seat from the front-passenger’s seat.

At approximately 3 a.m. on November 10, Brian Loomis, a Pottawattamie County deputy sheriff, was traveling westbound on Interstate 80 running radar. Loomis’ radar set the speed of the Navigator traveling eastbound on Interstate 80 at about eighty-six miles-per-hour in a sixty-five mile-per-hour zone. Loomis turned through the highway median and stopped the vehicle. Loomis approached the vehicle from the passenger side, asked Dineen for his license, and requested the vehicle’s registration. Dineen told Loomis he did not have his driver’s license with him. Instead, he provided Loomis with his correct name, social security number, and address. Smith located the car registration in the glove box and gave the registration to Loomis.

Loomis returned to his patrol car and ran the license plate number through his dispatch. After discovering the license plates did not match the Navigator’s registration information, Loomis requested backup.

While Loomis waited for backup, Dineen, Smith, and Clark discussed their situation and options. At that time Dineen told Smith and Clark the Navigator and guns were stolen. Dineen also told Smith and Clark he would “take the blame for everything.” Smith was concerned because he was on probation and Clark was concerned because he was going through drug court. Smith and Clark believed if apprehended in a stolen vehicle with stolen guns and illegal drugs, they would go to prison. Smith and Clark did not want to go to prison.

After the three decided imprisonment was not a viable option, they began to discuss other options. First, the three men ruled out driving away because the Navigator could not outrun the police vehicle. Next, they talked about backing the Navigator into the deputy or his vehicle as he reapproached them. Clark and Smith also considered shooting out the passenger-side window when the deputy came back to the Navigator.

After waiting about nine minutes for backup, Loomis walked toward the Navigator on the driver’s side and ask Dineen to step out of the vehicle. As the deputy approached the Navigator, Dineen yelled to both Smith and Clark to hand him a gun. Smith and Clark found a handgun and one of them gave it to Dineen. As soon as Loomis asked Dineen to step out of the vehicle, Dineen opened the door and shot Loomis four times. Dineen, Clark, and Smith then fled from the scene in the Navigator.

Loomis was able to get back to his squad car and report he had been shot. Loomis sustained multiple gunshot wounds to his left upper extremity, one bullet wound to his left posterior chest, and a wound to his right upper extremity. These injuries were life threatening and he likely would not have been able to survive without surgery. These injuries also caused prolonged impairment of Loomis’ left hand and arm function.

The authorities ultimately apprehended Dineen, Smith, and Clark. Dineen pled guilty to attempted murder and received a twenty-five-year sentence. As part of his plea agreement, Dineen agreed to testify truthfully in the cases of Clark and Smith in exchange for the State dropping all other charges against him. Clark pled guilty to aiding and abetting the reckless use of a firearm causing serious injury and received a ten-year sentence.

II.Proceedings.

The State charged Smith in five counts. In count I the State charged Smith with attempt to commit murder in violation of Iowa Code sections 707.11, 702.7, 702.18®, 703.1, and/or 703.2 (2003). In count II the State charged Smith with willful injury causing serious injury in violation of Iowa Code sections 708.1, 708.4(1), 702.18®, 703.1, and/or 703.2. In count III the State charged Smith with assault on a peace officer while using or displaying a dangerous weapon in violation of Iowa Code sections 708.3A(2), 703.1, and/or 703.2. In count IV the State charged Smith with assault while participating in a felony in violation of Iowa Code sections 708.3, 714.2(1), 703.1 and/or 703.2. In count V the State charged Smith with theft in the first degree in violation of Iowa Code sections 714.1(4), 714.2(1), 703.1, and/or 703.2.

The court instructed the jury it could find Smith guilty of each charge either as a principal, an aider and abettor, or under the theory of joint criminal conduct. As to count I the jury found Smith guilty of assault with intent to inflict serious injury, a lesser included offense of the charge of attempted murder. Under counts II-V the jury found Smith guilty of the charged offenses: willful injury causing serious injury, assault on a peace officer while using or displaying a dangerous weapon, assault while participating in a felony causing serious injury, and first-degree theft. The court merged counts I and II, sentencing Smith on count II and not count I.

Smith appealed alleging the district court erred in denying his motion for judgment of acquittal and in overruling his objection to the joint criminal conduct jury instruction. He also claimed he was denied effective assistance of counsel when his attorney failed to object to the aiding and abetting jury instruction. In his appeal Smith claims there is insufficient evidence to find him guilty of assault with intent to inflict serious injury, willful injury causing serious injury, assault on a peace officer while using or displaying a dangerous weapon, and assault while participating in a felony. We transferred the case to the court of appeals.

The court of appeals affirmed the district court on all issues except Smith’s willful injury conviction. It reversed the willful injury conviction because the court of appeals found Smith’s trial attorney was ineffective in not objecting to the aiding and abetting instruction because the instruction did not mention the concept of specific intent, even though willful injury is a specific intent crime.

Both Smith and the State petitioned for further review. This court granted both petitions.

III. Issues.

Although the parties raise various issues on appeal, the issues surrounding the district court’s giving of the joint criminal conduct jury instruction disposes of this appeal.

IV. Analysis.

With respect to the convictions Smith now appeals, the district court instructed the jury it could find Smith guilty as a principal, an aider and abettor, or because of his joint criminal conduct for the crimes of assault with intent to inflict serious injury, willful injury causing serious injury, assault on a peace officer while using or displaying a dangerous weapon, and assault while participating in.a felony. The district court gave the following jury instruction on joint criminal conduct:

When two or more persons act together and knowingly commit a crime, each is responsible for the other’s acts during the commission of the crime or escape from the scene. The Defendant’s guilt is the same as the other person’s(s’) unless the act(s) could not reasonably be expected to be done in aiding the commission of the crime.

Smith objected to the instruction, arguing there was no evidence to support the submission of a joint criminal conduct instruction because Smith did not knowingly participate in a previous, underlying public offense that constituted a different crime in furtherance of Dineen’s offenses. The court overruled Smith’s objection.

Smith then asked the court to instruct the jury on the specific underlying offense that Smith committed to support the giving of the joint criminal conduct instruction. The court refused to do so. When instructing the jury, the court did not ask whether it was finding Smith guilty as a principal, an aider and abettor, or because of his joint criminal conduct. In other words, the court instructed the jury to return a general verdict for each charge.

When a defendant challenges the sufficiency of the evidence to support his conviction this court’s review is for correction of errors at law. State v. Bower, 725 N.W.2d 435, 440-41 (Iowa 2006). This court will uphold a guilty verdict if substantial evidence supports the verdict. State v. Nitcher, 720 N.W.2d 547, 556 (Iowa 2006). Evidence is substantial if, in the light most favorable to the State, the evidence can convince a rational jury the defendant is guilty of the charged crime beyond a reasonable doubt. Id.

In 1994 this court distinguished the commission of a crime by means of aiding and abetting from the commission of a crime by means of joint criminal conduct. State v. Satern, 516 N.W.2d 839, 843 (Iowa 1994). There we stated:

Under section 703.1, the aider and abettor is held liable for the same crime which he or she has knowingly aided the principal in committing, “either by active participation in it or by some manner encouraging it prior to or at the time of its commission.” Joint criminal conduct, on the other hand, takes the enterprise a step further. It contemplates two acts — the crime the joint actor has knowingly participated in, and a second or resulting crime that is unplanned but could reasonably be expected to occur in furtherance of the first one. Depending on the case, it may be appropriate for the court to instruct on both doctrines.

Id. (internal citations omitted). Prior to Satem, this court blurred the line between the commission of a crime by means of aiding and abetting and joint criminal conduct. In one decision this court held a defendant was guilty of first-degree murder under the theory of joint criminal conduct when the defendant prepared the lines to tie up the murder victims and brought the actual perpetrator to the site of the murder. State v. Kern, 307 N.W.2d 22, 28 (Iowa 1981). In another decision we held a defendant was guilty of false use of a financial statement under the theory of joint criminal conduct when the defendant stole a purse, gave a credit card from the stolen purse to another person, accompanied that person into a video store, and was with that person when the stolen card was used to purchase merchandise. State v. Thompson, 397 N.W.2d 679, 681, 685-86 (Iowa 1986). There we said, “[t]he most we can derive from defendant’s argument in the present case is that perhaps [the joint criminal conduct instruction] was redundant in conveying to the jury the necessary elements of the crime.” Id. at 685.

Under our present law in order for a person to be found guilty by reason of joint criminal conduct the State must prove the following elements:

1. Defendant must be acting in concert with another.
2. Defendant must knowingly be participating in a public offense.
3. A “different crime” must be committed by another participant in furtherance of the defendant’s offense.
4. The commission of the different crime must be reasonably foreseen.

State v. Jefferson, 574 N.W.2d 268, 277 (Iowa 1997). ‘“In furtherance of is not limited to acts done to promote or advance the underlying crime, but includes acts done while furthering that offense.” Id. (quoting Satern, 516 N.W.2d at 844) (internal quotation marks omitted).

Applying these elements to the record in the present case, we must first determine whether Smith knowingly participated in a public offense that was different from the crimes committed by Dineen when he shot the deputy. The State argued in its brief that “Smith knowingly participated, as an aider and abettor, in the crime of assault on a police officer while using or displaying a dangerous weapon” when he assisted Dineen in obtaining the handgun used to shoot the deputy. This is the only separate, underlying public offense the State argues to support Smith’s conviction under a joint criminal conduct theory.

The logical fallacy of the State’s argument is twofold. First, knowingly participating in the crime of assault on a police officer while using or displaying a dangerous weapon is not a different crime to support a conviction for assault on a police officer while using or displaying a dangerous weapon.

Second, the act of assisting Dineen in obtaining the handgun used to shoot the deputy was an act done directly toward the commission of each of the offenses for which the jury convicted Smith. See Iowa Code § 702.13 (stating “[a] person is ‘participating in a public offense,’ during part or the entire period commencing with the first act done directly toward the commission of the offense and for the purpose of committing that offense, and terminating when the person has been arrested or has withdrawn from the scene of the intended crime and has eluded pursuers”). Therefore, the act of assisting Dineen in obtaining the handgun used to shoot the deputy is not a separate crime from the crimes charged to allow the jury under the theory of joint criminal conduct to find Smith guilty of assault with intent to inflict serious injury, willful injury causing serious injury, assault on a peace officer while using or displaying a dangerous weapon, and assault while participating in a felony.

Consequently, there was insufficient evidence to submit to the jury the State’s claim that Smith was guilty of the crimes committed by Dineen when he shot the deputy by reason of Smith’s joint criminal conduct.

V. Disposition.

In State v. Jackson, this court stated when the district court erroneously gives a joint criminal conduct instruction in instances where the alleged multiple participants are either principals or aiders and abettors in the same crime, a reversal is not required as long as there is no opportunity for the defendant to be found guilty based on anything other than the defendant’s own conduct as a principal or aider and abettor of the crime charged. 587 N.W.2d 764, 766 (1998) (citing Thomp son, 397 N.W.2d at 685-86 and Kern, 307 N.W.2d at 28). The corollary to the rule announced in Jackson is that in instances where the alleged multiple participants are either principals or aiders and abettors in the same crime, a reversal is required if the district court erroneously gives a joint criminal conduct instruction and there is an opportunity for the jury to find the defendant guilty based on anything other than the defendant’s own conduct as a principal or aider and abettor of the crime charged.

Unlike the circumstances in Jackson, here there was evidence crimes were committed that were separate from the shooting. These separate crimes involved the stolen guns, first-degree theft, and possession of methamphetamine. In its brief the State does not argue that any of these crimes are the separate, underlying public offense needed to support Smith’s conviction under a joint criminal conduct theory. See Iowa R.App. P. 6.14(l)(c) (stating “[fjailure in the brief to state, to argue or to cite authority in support of an issue may be deemed waiver of that issue”). Even though the State does not contend any of these crimes would qualify as the separate, underlying public offense needed to support Smith’s conviction under a joint criminal conduct theory, under the instructions given by the trial court, the jury could have erroneously relied on these collateral offenses to support a conviction under the joint criminal conduct theory.

Because the district court instructed the jury to return a general verdict on each charge we are unable to determine whether the jury may have used any of these crimes as the separate, underlying public offense to convict Smith of assault with intent to inflict serious injury, willful injury causing serious injury, assault on a peace officer while using or displaying a dangerous weapon, or assault while participating in a felony under a joint criminal conduct theory. Therefore, we have no way of knowing whether the jury found Smith guilty of these crimes as a principal, an aider and abettor, or under the theory of joint criminal conduct. See State v. Hogrefe, 557 N.W.2d 871, 881 (Iowa 1996). A verdict based on facts only legally supporting one theory for a conviction will not negate the possibility that the defendant was convicted under a theory containing legal error. See State v. Heemstra, 721 N.W.2d 549, 558 (Iowa 2006); State v. Martens, 569 N.W.2d 482, 485 (Iowa 1997). Therefore, even if we assume the record supports Smith’s convictions for these crimes under the theory that Smith aided and abetted Dineen in the commission of these crimes, we are still required to reverse these convictions and remand the case to the district court for a new trial on these charges, because the general verdict returned by the jury did not reveal the basis for its guilty verdict.

In the future if a court is going to instruct the jury on the theory of joint criminal conduct, it should incorporate the elements of joint criminal conduct as set forth in this opinion, rather than instructing the jury with the general language of section 703.2. The district court should also instruct the jury on the separate public offense supporting a theory of joint criminal conduct. See Sonnek v. Warren, 522 N.W.2d 45, 47 (Iowa 1994) (stating “[i]t is the trial court’s duty to see that a jury has a clear and intelligent understanding of what it is to decide”); State v. Thomas, 262 N.W.2d 607, 612 (Iowa 1978) (stating “[e]ven without a request, the court must instruct fully on all material issues, stating applicable legal principles supported by requisite evidence”).

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

All justices concur except LARSON and HECHT, JJ., who take no part.

      . The jury also found Smith guilty of first-degree theft. Smith did not appeal his theft conviction.

      . After leaving the scene of the shooting, Smith drove the Navigator. We assume exercising control of the Navigator after learning it was stolen forms the basis for Smith’s theft conviction because on appeal the State does not argue that Smith committed the theft pri- or to the shooting or that the theft should be used as the separate, underlying public offense to form the basis of guilt under a joint criminal conduct theory.

      . By this statement we do not mean to imply that under an adequate record and proper instructions these crimes could not provide a basis for submitting the theory of joint criminal conduct.