State v. Retterath ( 2017 )


Menu:
  •                     IN THE COURT OF APPEALS OF IOWA
    No. 16-1710
    Filed December 20, 2017
    STATE OF IOWA,
    Plaintiff-Appellee,
    vs.
    MARK BERNARD RETTERATH,
    Defendant-Appellant.
    ________________________________________________________________
    Appeal from the Iowa District Court for Mitchell County, James M. Drew
    (motion) and Gregg R. Rosenbladt (trial), Judges.
    A defendant challenges his convictions for sexual abuse in the third degree,
    attempted murder, and solicitation to commit murder.       AFFIRMED IN PART,
    REVERSED IN PART, AND REMANDED.
    Angela L. Campbell of Dickey & Campbell Law Firm, P.L.C., Des Moines,
    for appellant.
    Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney
    General, for appellee.
    Heard by Vogel, P.J., and Tabor and Bower, JJ.
    2
    TABOR, Judge,
    Sex acts, vengeance, and castor beans.            After digesting salacious
    testimony offered by prosecution witnesses on these subjects, a jury convicted
    Mark Retterath of sexual abuse in the third degree, solicitation to commit murder,
    and attempted murder. Retterath appeals the three guilty verdicts, challenging the
    sufficiency of the evidence and alleging a number of errors by the trial court.
    When viewing the proof in the light most favorable to the State, we find
    substantial evidence to support the convictions for sexual abuse and solicitation to
    commit murder. But because the State did not prove Retterath performed an act
    that met the statutory definition of assault, we reverse and remand for dismissal of
    the attempted-murder count.      We find no grounds for reversal in Retterath’s
    remaining issues, though we do remand for an in camera review of the counseling
    records of two witnesses whose credibility was critical to the State’s case on
    solicitation to commit murder.
    I.     Facts and Prior Proceedings
    According to the prosecution’s theory, Retterath was reenacting a
    murderous plotline from an episode of Breaking Bad1 as he solicited associates
    Aaron Sellers and J.R. to exact revenge against C.L., the young man who accused
    Retterath of sexual abuse.
    1
    Breaking Bad was a “critically acclaimed television show” produced and marketed by
    AMC Networks, Inc. from 2008 to 2013. See United States v. Rodriguez, 
    125 F. Supp. 3d 1216
    , 1239 n.9 (D.N.M. 2015). State’s witness J.R. testified he watched the show on
    Netflix, a video streaming service, and shared the plot details with Retterath.
    3
    The accusations of sexual abuse surfaced in January 2015, but the events
    dated back more than ten years. As a young teenager, C.L. was friends with Casey
    Rolland, whose mother, Deb Rolland, lived with Retterath. When visiting Casey,
    C.L. was occasionally left alone with Retterath, who used those opportunities to
    introduce the topic of masturbation. Initially, C.L. told police he was thirteen years
    old when Retterath first touched his penis as they sat in Retterath’s pickup after
    planting trees out in the country.     C.L. recalled Retterath subtly displayed a
    handgun, which C.L. later believed to be a Luger, and warned C.L. not to tell his
    parents or Deb Rolland.      During a videotaped interview, C.L. told police the
    touching occurred repeatedly when he was thirteen and fourteen years old.2
    But during his trial testimony, C.L. revised his allegations, recalling instead
    that during his encounters with Retterath as a young teenager, each masturbated
    himself, and Retterath did not touch C.L.’s penis until he was sixteen years old.
    C.L. recalled going to Retterath’s house and Retterath asking whether C.L. wanted
    to “pull it”—meaning to masturbate. Retterath then “leaned over and grabbed
    [C.L.’s penis], and looked like all around and compliment[ed C.L.] on how big [he]
    had gotten from the previous time [Retterath] had seen it.” C.L. remembered
    feeling “frozen” and “powerless” to stop Retterath. The unwanted touching also
    occurred when C.L. was seventeen years old, according to his testimony. In high
    school, C.L. struggled with alcohol abuse. His parents, not knowing about the
    sexual encounters, urged C.L. to seek addiction counseling from Retterath.
    2
    C.L. also remembered going to the airport hangar where Retterath worked as a crop
    duster.
    4
    Retterath was a recovering alcoholic and active in Alcoholic Anonymous (AA).
    When C.L. went to Retterath for advice, Retterath again “grabbed” C.L.’s penis.
    After high school, C.L. enlisted in the Army. He served for two years before
    he was discharged for alcohol-related violations. Following his discharge, he
    developed an addiction to opiates. In the fall of 2014, C.L. overdosed on heroin
    and was resuscitated by his mother. Prompted by the overdose, C.L. entered
    treatment, and for the first time, he disclosed that he had been sexually abused by
    Retterath.   C.L. eventually shared the information with his parents, who
    encouraged him to report the abuse to the police. C.L. was twenty-four years old
    when he detailed the abuse in an hour-long interview with Mitchell County Deputy
    Jeff Huftalin on January 28, 2015. During the video-recorded interview, C.L. said
    Retterath sometimes showed him pornography on the television while they
    masturbated and once Retterath tried to access a website showing child
    pornography on his laptop. C.L. also told police Retterath (1) had a blue-colored
    sword tattoo running the length of his penis and (2) joked to the teenaged C.L. that
    he named it “S-Excalibur.” At the deputy’s request, C.L. drew a picture of the
    tattoo, which proved to be a close likeness to the photograph later taken by law
    enforcement during a search of Retterath’s person.
    After hearing C.L.’s accusations, Deputy Huftalin arranged for C.L. to
    secretly record a telephone conversation with Retterath. During the call, C.L. told
    Retterath he had been thinking about the past when they were planting trees or
    watching movies together and he was having a “hard time dealing with it.”
    Retterath claimed to have a bad connection, but Retterath also asked C.L. if he
    was “feeling like it was really bad or wrong?” After C.L. told Retterath he was
    5
    “getting really depressed” and had contemplated hurting himself, Retterath
    assured C.L. that it was “not really different than when you’re alone” and “not that
    big of a deal.”
    After the phone call, police arrested Retterath and charged him with sexual
    abuse. Retterath admittedly was livid over C.L.’s accusations. Retterath testified:
    “I’m sure I’ve cussed him plenty. But killing him wasn’t even a thought to me.” The
    State’s witnesses told a different story. Two acquaintances who met Retterath at
    their AA meetings testified Retterath incessantly “vented” about wanting C.L. dead.
    Sellers, who was thirty-five years old at the time of the trial and had spent nearly
    ten years in federal prison, testified Retterath repeatedly asked him to “kill that little
    mother fucker.” Sellers did not know whether to take Retterath seriously. But
    Sellers initially entertained the idea out of “some loyalty” to Retterath whom Sellers
    believed to be falsely accused. When Sellers made it clear he would not kill C.L.,
    Retterath asked if Sellers knew anybody who would. Retterath talked about using
    the silver commodities that he traded to pay someone to commit the murder,
    according to Seller’s testimony.
    Retterath also implored J.R. to kill C.L. J.R., who was twenty years old at
    the time of the trial, told Retterath about a Breaking Bad episode where ricin was
    extracted from castor beans and used as a poison. After that discussion, Retterath
    suggested J.R. should leave a ricin-laced batch of drugs on C.L.’s property where
    he would “stumble across it” and “hopefully would shoot it up.” J.R. testified he
    and Retterath went to Mason City to purchase methamphetamine but Retterath
    decided heroin would be better because its brownish color would help disguise the
    ricin. Retterath wanted J.R. to plant the drugs because Retterath was the subject
    6
    of a no-contact order after the filing of the sexual abuse charges. Sellers likewise
    recalled the storyline: “I guess you can extract some poison from these beans and
    it will kill you. And it was untraceable. . . . And [Retterath] was talking about where
    he could find them . . . if you started looking around online.”
    In April 2015 Retterath signed onto eBay to purchase castor beans, along
    with other seeds and supplies. Retterath insisted he only wanted the poisonous
    beans to kill “varmints.” Retterath recalled J.R. looking over his shoulder as he
    ordered the seeds, which prompted J.R. to recall the television episode involving
    ricin. Retterath also performed searches on Google related to ricin and castor
    beans on April 15, 2015. His search terms included “castor bean plants”, “how is
    ricin made from castor beans,”3 and “how fast does ricin degrade.”
    In June 2015 Sellers and J.R. contacted Deputy Huftalin to report
    Retterath’s plot to kill C.L. After they came forward, the deputy obtained another
    search warrant for Retterath’s house. In that search, investigators found a forty-
    plus-page printout in Retterath’s file cabinet that outlined how to extract ricin from
    castor beans. The printout was slipped into a folder labelled Roth IRA and was
    entitled: “Combined Castor Marker and Isotope Profile for Ricin Forsensics: Final
    Report.” It included five examples of ricin-purification recipes. The searchers also
    found a jar of castor beans in Retterath’s refrigerator, as well as a baggie holding
    about ten beans in the pocket of a pair of Retterath’s blue jeans.
    In another pocket of the same jeans, the searchers found a handwritten list
    of the following items:
    3
    A computer forensic expert testified the words typed in were “How is ricin” and then
    Google’s “artificial intelligence” program “auto populated” the remainder of the query.
    7
    - 6 Big Rolls Wide Duct Tape
    - 50 or 60 Large Heavy Duty Heft Bags (No draw strings if possible)
    - Saws All w/3 New blades, 6 inches long at least
    - power cord
    - 2 5-gallon containers gasoline
    - Large Sections of Vcqueen and/or Tarps 15 X 15 or larger[]
    - your vacumm sealer (foodsaver) with the bags that aren’t pre-cut
    - $220 cash
    Sellers testified he jotted down the list4 as Retterath dictated it over the
    phone and then gave the note to him when Retterath arrived at the house. Sellers
    said he added the item “$220 cash” at the bottom because Retterath owed him
    that amount. Sellers recalled writing the note close in time to Retterath’s arrest for
    attempted murder.
    After the second search of Retterath’s house and the seizure of the castor
    beans, investigators sought help from the seed laboratory at Iowa State University
    and the state hygienics laboratory in Coralville to determine if the toxin ricin was
    inside the castor beans. The beans tested positive for ricin. Dr. Neel Barnaby, a
    scientist with the FBI, testified ricin is a “biological threat agent” naturally produced
    from castor beans. Dr. Barnaby described ricin as a “dangerous toxin” because it
    “shuts down protein synthesis in cells. . . . If you kill enough cells, you start to kill
    tissues. If you kill enough tissues, you start to kill organs, and if you start to kill
    organs, you can kill the entity.” Dr. Barnaby discussed different methods for
    extracting the toxin from the bean: “It could be as simple as cracking the seed coat
    open to get access to the pulp of the seed to very high-tech procedures to get 100
    percent pure ricin.” He testified that as few as eight beans could produce a lethal
    4
    The State refers to the note as “a corpse-disposal shopping list.” Retterath replies such
    a characterization is at odds with the State’s theory that Retterath plotted for C.L. to die of
    ricin poisoning at a time and place that could not be traced to Retterath.
    8
    dose of ricin. On cross-examination, Dr. Barnaby acknowledged the FBI does not
    monitor the sale of castor beans on the internet.
    At his jury trial in August 2016, Retterath faced three charges: sexual abuse
    in the third degree, solicitation to commit murder, and attempted murder. Before
    the presentation of the evidence, Retterath unsuccessfully moved to dismiss the
    charges for attempted murder and sexual abuse. See Iowa R. Crim. P. 2.11(6)(a).
    At trial, the State presented testimony from C.L., J.R., Sellers, numerous police
    officers, and expert witnesses. Retterath called Deb Rolland and her children as
    witnesses; he also testified in his own defense, denying C.L.’s allegations about
    the masturbation sessions and insisting he never touched C.L.’s penis. The jury
    returned guilty verdicts on all three counts. Retterath now appeals.
    II.    Scope and Standards of Review
    The wide-ranging challenges in this appeal call for a variety of reviewing
    standards. When considering the district court’s rulings on Retterath’s motion for
    judgment of acquittal, objections to jury instructions, and request for admission of
    a video-recording over the State’s hearsay objection, we review for legal error.
    See, e.g., State v. Tipton, 
    897 N.W.2d 653
    , 694 (Iowa 2017) (presuming errors in
    jury instructions are prejudicial unless lack of prejudice is shown beyond
    reasonable doubt); State v. Bash, 
    670 N.W.2d 135
    , 137 (Iowa 2003) (upholding
    jury’s verdict if it is supported by substantial evidence).
    We employ an abuse-of-discretion standard when considering the district
    court’s rulings on Retterath’s discovery requests, mistrial motion, and motion for
    new trial based on the weight of the evidence. See generally State v. Neiderbach,
    
    837 N.W.2d 180
    , 190 (Iowa 2013).
    9
    We review de novo Retterath’s challenges to the search of his property and
    the alleged violation of his due process rights in connection with the disclosure of
    mental health records. See State v. Gogg, 
    561 N.W.2d 360
    , 363 (Iowa 1997); see
    also State v. Cashen, 
    789 N.W.2d 400
    , 405 (Iowa 2010) (reviewing de novo claims
    resting on due process right to present a defense), superseded by statute, 2011
    Iowa Acts ch. 8, § 2 (codified at Iowa Code § 622.10 (2011)), as recognized in
    State v. Thompson, 
    836 N.W.2d 470
    , 490 (Iowa 2013).
    III.   Analysis
    A.     Sufficiency and Weight of the Evidence
    Retterath challenges both the sufficiency and the weight of the State’s
    evidence for all three crimes. On the sufficiency question, we assess the record
    in the light most favorable to the State, including all reasonable inferences that we
    may fairly draw from the evidence. State v. Howse, 
    875 N.W.2d 684
    , 688 (Iowa
    2016). We will uphold the jury’s verdicts if they are supported by substantial
    evidence. 
    Id. Evidence is
    substantial when a reasonable jury could rely on it to
    find the defendant guilty beyond a reasonable doubt.            
    Id. Evidence is
    not
    substantial if it raises only suspicion, speculation, or conjecture. 
    Id. If the
    evidence
    is not substantial, we must reverse and remand for dismissal. 
    Id. On the
    alternative claim challenging the weight of the evidence, we must
    grant a new trial if the jury’s verdicts are contrary to law or evidence. Iowa R. Crim.
    P. 2.24(2)(b)(6). A verdict is contrary to evidence when it is against the greater
    weight of the evidence presented at trial. State v. Taylor, 
    689 N.W.2d 116
    , 133–
    34 (Iowa 2004). Unlike the sufficiency standard, where the district court must
    approach the evidence from a standpoint most favorable to the State and assume
    10
    the truth of the prosecution’s case, the weight-of-the-evidence standard allows the
    court to balance the evidence and consider the credibility of witnesses. 
    Id. at 134.
    In deciding whether to grant a new trial on this ground, the district court enjoys
    wide discretion, but it must exercise that discretion carefully and sparingly. 
    Id. We will
    discuss each distinct claim for all three convictions.
    1. Sexual Abuse in the Third Degree
    To convict Retterath of third-degree sexual abuse, the State had to show
    he performed a sex act with C.L., by force or against C.L.’s will. See Iowa Code
    §§ 709.1(1), 709.4(1)(a) (2016). One definition of “sex act” is contact between the
    hand of one person and the genitalia of another. 
    Id. § 702.17(3).
    The contact
    must be sexual in nature. See State v. Pearson, 
    514 N.W.2d 452
    , 454 (Iowa 1994).
    C.L. testified that when he was a young teenager, he had encounters with
    Retterath where they both would masturbate, without touching the other, but
    Retterath would display a handgun. Retterath told C.L. not to tell his parents what
    happened. C.L. further testified, on two occasions when he was sixteen and then
    seventeen years old, he was again alone with Retterath when the older man raised
    the subject of masturbation and “grabbed” C.L.’s penis—complimenting its size.
    C.L. recalled Retterath telling him “the girls are going to like that.”
    Retterath argues that even if the jury believed C.L., his testimony did not
    establish the sexual nature of the touching.        He claims the State offered no
    evidence to indicate that Retterath’s admiration for the growth of C.L.’s penis was
    intended to arouse or satisfy the sexual desires of either party. We disagree. The
    jury was entitled to determine that Retterath’s act of grabbing C.L.’s penis was
    sexual in nature based on the type of contact and the circumstances surrounding
    11
    it.   See State v. Madsen, 
    813 N.W.2d 714
    , 728–29 (Iowa 2012) (deciding
    “admissible evidence allowed the jury to find Madsen measured D.M.K.’s penis
    with the specific intent to arouse or satisfy sexual desires” (citation omitted)). C.L.
    testified Retterath had pornography playing for them to view as both Retterath and
    C.L. proceeded to masturbate while sitting side by side on the couch. According
    to C.L., Retterath then asked C.L. “if [he] was close because [Retterath] was
    close,” meaning Retterath wanted them to ejaculate at the same time. In these
    circumstances, Retterath’s sexual intent was obvious.
    As to the weight of the evidence, we find no abuse of discretion in the district
    court’s denial of a new trial. See 
    Taylor, 689 N.W.2d at 134
    (discussing limited
    appellate review). Retterath’s challenge focuses on C.L.’s credibility—pointing out
    C.L.’s late reporting and the variance between C.L.’s initial disclosures and trial
    testimony. The district court could uphold the jury’s verdict despite those concerns.
    The State offered expert testimony to explain that traumatic situations can make it
    difficult for young people to remember time frames and to explain why delayed
    disclosure is common. In addition, C.L.’s credibility was bolstered by his accurate
    drawing of the sword tattoo on Retterath’s penis, something he would not have
    been able to remember if Retterath was truthful in his total denial of any
    masturbation sessions with C.L.        Finally, Retterath’s statements during the
    recorded phone call with C.L. give credence to C.L.’s allegations of sexual abuse.
    Accordingly, we uphold the district court’s rulings on both the sufficiency
    and the weight of the evidence supporting Retterath’s conviction for sexual abuse
    in the third degree.
    12
    At this juncture, we circle back to address Retterath’s related claim that the
    district court should have granted his pretrial motion to dismiss the count alleging
    sexual abuse. Pretrial dismissal is appropriate if the facts alleged in the trial
    information and the minutes of evidence do not constitute the offense charged as
    a matter of law.     State v. Gonzalez, 
    718 N.W.2d 304
    , 309 (Iowa 2006).               In
    considering a motion to dismiss a trial information, the district court is called to
    accept as true the facts set out in the minutes or any bill of particulars. See State
    v. Doss, 
    355 N.W.2d 874
    , 881 (Iowa 1984).
    Retterath argued in his motion to dismiss that neither the minutes nor C.L.’s
    deposition5 alleged that he “performed a sex act on C.L. by force or against his
    will.” Retterath claims that even if the acts alleged in C.L.’s deposition were sexual,
    they were not “done by force or against the will of C.L.” The defense points out
    C.L. went to Retterath’s house on his own accord and agreed to masturbate. In
    Retterath’s estimation: “This is not the behavior of someone who is being forced
    to do something against his will.”
    “The overall purpose of Iowa’s sexual abuse statute is to protect the
    freedom of choice to engage in sex acts.” State v. Meyers, 
    799 N.W.2d 132
    , 143
    (Iowa 2011). The phrase, “against the will of another,” provides broad protection
    from nonconsensual sex acts, both under circumstances showing the victim had
    no opportunity or ability to consent due to coercion and where the particular
    5
    The State insists that in evaluating the motion to dismiss, we cannot consider C.L.’s
    deposition. See State v. Johnson, 
    528 N.W.2d 638
    , 640 (1995). We disagree. Because
    C.L.’s deposition contradicted information contained in the minutes of evidence, it can be
    construed as an amendment or bill of particulars and is properly considered in deciding
    whether the facts alleged constitute the offense charged. See generally State v. Conner,
    
    292 N.W.2d 682
    , 688 (Iowa 1980).
    13
    circumstances have rendered the victim incapable of consenting to the sexual
    advances of a particular person. 
    Id. In his
    deposition, C.L. testified to coercive
    actions Retterath had taken during earlier masturbation encounters, including
    leaving a gun visible to C.L. and warning him not to tell Deb Rolland or his parents.
    Under these circumstances, we conclude the State alleged sufficient facts
    to support the elements of sexual abuse in the third degree; the district court
    properly denied Retterath’s motion to dismiss this offense.
    2. Solicitation to Commit Murder
    We turn next to Retterath’s challenge to his conviction for the solicitation of
    J.R. or Sellers to murder C.L. Solicitation to commit murder has three elements:
    (1) commanding, entreating, or otherwise attempting to persuade another to
    commit murder; (2) with intent that the murder be committed; (3) under
    circumstances corroborating that intent. Iowa Code § 705.1(1); State v. Jackson,
    
    422 N.W.2d 475
    , 478 (Iowa 1988).          Retterath alleges there was insufficient
    evidence to corroborate the testimony of Sellers or J.R. A conviction for this crime
    cannot rest on the testimony of a solicited person “unless corroborated by other
    evidence which shall tend to connect the defendant with the commission of the
    offense; and the corroboration is not sufficient if it merely shows the commission
    of the offense or the circumstances thereof.” Iowa R. Crim. P. 2.21(3).
    The purpose of corroborating evidence is to ensure a conviction does not
    result from an accused’s statements that were misunderstood, not intended to be
    taken seriously, or fabricated by the solicited person. State v. Williams, 
    315 N.W.2d 45
    , 58 (Iowa 1982). We do not require corroborative evidence to be
    particularly strong as long as it tends to connect the accused with the commission
    14
    of the crime and supports the credibility of the solicited person. See generally
    State v. Barnes, 
    791 N.W.2d 817
    , 824 (Iowa 2010); State v. Robertson, 
    351 N.W.2d 790
    , 793 (Iowa 1984).
    On appeal, Retterath asserts: “Wanting to kill someone, indeed fantasizing
    and talking about killing someone, is not sufficient evidence of intent to actually
    have someone killed.” He contends he is being punished for a “thought crime.”
    The State argues “solicitation is an offense ‘where the crime is in the
    asking.’” State v. Anderson, 
    618 N.W.2d 369
    , 372 (Iowa 2000) (citation omitted).
    The State also points out “the ultimate success or failure of the solicitation is
    irrelevant to the validity of the conviction.” Cf. State v. Propp, 
    532 N.W.2d 784
    ,
    786 (Iowa 1995) (analyzing conviction for solicitation of a child to engage in a sex
    act). As corroborative evidence, the State points to Retterath’s accelerated buying
    of silver as a means for him to afford the murder for hire, as well as his purchase
    of the castor beans and printing of the ricin fact sheet, which connect him to the
    criminal plot described by both Sellers and J.R.
    Viewing the proof in the light most favorable to the State, we find sufficient
    evidence to corroborate the testimony of Sellers and J.R. Both men testified about
    Retterath’s expressed desire to have them lace C.L.’s drugs with ricin. Sellers
    testified Retterath was excited when the castor beans arrived and showed the
    delivery box to Sellers. J.R. testified Retterath showed him a pill bottle containing
    castor beans, as well as the “larger bag of beans in the fridge.” Investigators
    confirmed Retterath’s possession of the beans. The district court properly denied
    Retterath’s motion for judgment of acquittal on the solicitation offense.
    15
    As for the weight of the evidence, we find no abuse of discretion in the
    district court’s denial of Retterath’s motion for new trial on the solicitation count.
    While the defense raised questions about the credibility of J.R. and Sellers during
    their cross-examinations, assigning proper weight to their testimony remained the
    job of the jury. The district court is not to substitute its judgment for that of the jury
    unless the credible evidence tipped the scales heavily away from the verdict. See
    State v. Reeves, 
    670 N.W.2d 199
    , 203 (Iowa 2003). Moreover, the corroborative
    evidence here was not subject to questions of trustworthiness. We will not disturb
    the jury’s verdict on the solicitation offense.
    3. Attempted Murder
    On the offense of attempt to commit murder, the district court instructed the
    jury that the State had to prove three elements: (1) Retterath attempted to kill C.L.
    by poisoning him with ricin; (2) by his acts he expected to set in motion a force or
    chain of events which would cause or result in C.L.’s death; and (3) when he acted
    he specifically intended to cause C.L.’s death. See Iowa Code § 707.11(1); State
    v. Ceretti, 
    871 N.W.2d 88
    , 92 (Iowa 2015) (condensing attempted murder into two
    elements: “(1) an act, (2) done with intent to cause another person’s death”); State
    v. Young, 
    686 N.W.2d 182
    , 185 (Iowa 2004) (describing elements as “(1) a specific
    intent to cause the death of another and (2) an overt act in furtherance of the
    required specific intent”).
    Relying on State v. Braggs, 
    784 N.W.2d 31
    (Iowa 2010), Retterath argues
    the State did not satisfy the elements of attempted murder because it did not prove
    he assaulted C.L. Braggs held “it is impossible to commit attempted murder
    without also performing an act which meets the statutory definition of an assault
    16
    under Iowa Code section 
    707.1(1).” 784 N.W.2d at 36
    –37. Retterath argues the
    evidence he solicited J.R. and Sellers to poison C.L. and also purchased castor
    beans are not acts rising to the level of an assault. Retterath asserts: “Castor
    beans are legal to possess and grow, and the mere possession of castor beans,
    without an attempt to extract ricin, let alone no use of any theoretical ricin to poison
    anyone, is not a ‘chain of events’ that would result in the death of another.”
    The State insists the conduct required for attempted murder is not always
    an assault because “the inchoate nature of attempted murder means it can be
    committed through acts taking place before a planned assault.” The State cites
    Braggs for the proposition that as a result of the 1978 code revisions, “an assault
    is no longer an express element of attempted murder.” 
    Id. But the
    State isolates
    what appears to be favorable language while ignoring Braggs’s ultimate
    determination that assault remains an essential element of attempt to commit
    murder. 
    Id. at 36–37
    (explaining the defendant’s “focus on the 1978 rewrite of the
    Iowa Code is misplaced” because it is not essential that elements of a lesser
    offense be described in the statutes in the same manner as described in the
    elements of the greater offense).
    To support its position that not all attempted murders are accomplished by
    assaults, the State points to our unpublished decision in State v. Leggio, No. 09-
    0990, 
    2010 WL 624221
    , at *5 (Iowa Ct. App. Feb. 24, 2010). The State asserts:
    “The obvious example is murder-for-hire, which constitutes attempted murder long
    before the intended victim becomes aware of the scheme’s existence.” In Leggio,
    our court upheld a conviction for attempted murder that was based on a completed
    murder-for-hire agreement. 
    2010 WL 624221
    , at *5.
    17
    While it may be difficult to reconcile Braggs and Leggio, we must follow the
    precedent established by our supreme court. Accordingly, we reject the State’s
    reading of Braggs. Specifically, Braggs explained: “Attempted murder requires
    that the person expects to do something which will cause or result in the death of
    
    another.” 784 N.W.2d at 37
    (citing Iowa Code § 707.11). That “something” is an
    assault as defined in section 708.1.6 
    Id. The ability
    to complete the harmful act
    need only be apparent to the actor, not the victim. 
    Id. In the
    State’s example, even if the victim were not aware of the existence
    of a murder-for-hire scheme, the person who set in motion the chain of events
    could commit an assault by having the apparent ability to execute the harmful act
    vicariously through the hired assassin. See, e.g, People v. Super. Ct., 
    157 P.3d 1017
    , 1022–23 (Cal. 2007) (“Although Decker did not himself point a gun at his
    sister, he did aim at her an armed professional who had agreed to commit the
    murder.”). Under this reasoning, Leggio would not be inconsistent with Braggs. In
    Leggio, the defendant supplied the would-be assassin with information about the
    targeted victims, such as maps, photographs, work schedules, and vehicle types;
    “Leggio understood that his plan to have the intended victims killed was
    irretrievable once he signed and returned the promissory note.” 
    2010 WL 624221
    ,
    at *5. By contrast, Retterath’s scheme to kill C.L. was in its nascent stage.
    6
    Iowa Code § 708.1(2) states:
    A person commits an assault when, without justification, the
    person does any of the following: a. Any act which is intended to
    cause pain or injury to, or which is intended to result in physical
    contact which will be insulting or offensive to another, coupled with
    the apparent ability to execute the act. b. Any act which is intended
    to place another in fear of immediate physical contact which will be
    painful, injurious, insulting, or offensive, coupled with the apparent
    ability to execute the act.
    18
    Retterath was not shy about expressing his desire for C.L.’s demise. But he had
    not secured an agreement from Sellers or J.R. to carry out the killing and had taken
    no more than exploratory steps on his own to achieve his goal.
    Having confirmed that, under Braggs, the State was required to prove an
    assault, we examine whether the State presented substantial evidence showing
    Retterath committed such an “overt act” by which he expected to set in motion a
    force or chain of events that would cause or result in C.L.’s death. See Iowa Code
    § 707.11(1); 
    Young, 686 N.W.2d at 185
    . “Attempt” is not defined in our criminal
    code, but we know from our caselaw it is a matter of degree. “[M]ere acts of
    preparation not proximately leading to the consummation of the intended crime will
    not suffice to establish an intent to commit it.” State v. Spies, 
    672 N.W.2d 792
    ,
    797 (Iowa 2003) (quoting State v. Roby, 
    188 N.W. 709
    , 714 (Iowa 1922)). But the
    overt act also “need not be the last proximate act to the consummation of the
    offense.” 
    Id. An overt
    act qualifies as an “attempt” if it reaches “far enough towards
    the accomplishment of the desired result to amount to the commencement of the
    consummation.” 
    Id. (deciding that
    act of driving car toward supplier, after Spies
    participated in conversation consistent with confirming drug sale, qualified as step
    beyond preparation and proved attempt to transfer methamphetamine).
    The State points out that Iowa follows the “slight acts” approach to proving
    conduct has gone beyond “mere preparation” to a full-fledged attempt. See Fryer
    v. State, 
    325 N.W.2d 400
    , 406 (Iowa 1982) (describing common law elements of
    attempt as “(1) intent to commit the crime and (2) slight acts in furtherance of the
    crime that render voluntary termination improbable”). The State contrasts the
    “slight acts” test with the “substantial step” formulation in the Model Penal Code.
    19
    See Model Penal Code § 5.01(1)(c) (Am. Law Inst. 2016) (defining attempt as
    including an act that constitutes “a substantial step in a course of conduct planned
    to culminate in the commission of a crime”).7 Like federal courts that have looked
    at the “semantic disconnect” between the “slight acts” and “substantial step”
    formulations, we see the “operational meaning” of “attempt” as the same under
    either standard. See United States v. Saavedra-Velazquez, 
    578 F.3d 1103
    , 1109
    (9th Cir. 2009) (noting California courts have suggested the “slight acts” test is
    actually more stringent than the “substantial step” requirement because the Model
    Penal Code permits, in certain circumstances, preparatory acts to constitute an
    “attempt”); see also United States v. Sanchez, 
    667 F.3d 555
    , 563 (5th Cir. 2012)
    (describing “substantial step” as an act strongly corroborative of the actor’s criminal
    intent amounting to more than mere preparation); United States v. Kriens, No. CR
    99-3003 MWB, 
    2006 WL 2089947
    , at *13 (N.D. Iowa July 25, 2006) (equating
    Iowa’s “slight acts” test with “substantial step” language).
    The State argues that Retterath satisfied the “slight acts” test by buying the
    castor beans and researching how to extract ricin from them. The State contends,
    7
    The Model Penal Code lists seven types of conduct that could constitute a “substantial
    step” if strongly corroborative of the actor’s criminal intent, namely: (1) lying in wait,
    searching for or following the contemplated victim of the crime; (2) enticing or seeking to
    entice the contemplated victim of the crime to go to the place contemplated for its
    commission; (3) reconnoitering the place contemplated for the commission of the crime;
    (4) unlawful entry of a structure, vehicle or enclosure in which it is contemplated that the
    crime will be committed; (5) possession of materials to be employed in the commission of
    the crime, that are specially designed for such unlawful use or that can serve no lawful
    purpose of the actor under the circumstances; (6) possession, collection or fabrication of
    materials to be employed in the commission of the crime, at or near the place
    contemplated for its commission, if such possession, collection or fabrication serves no
    lawful purpose of the actor under the circumstances; and (7) soliciting an innocent agent
    to engage in conduct constituting an element of the crime. Model Penal Code
    § 5.01(2)(a)–(g).
    20
    even if Retterath had a lawful use for the beans, he had no lawful use for ricin—
    “so his momentum towards producing it can prove attempted murder.” The State
    alternatively asserts Retterath’s solicitations of J.R. and Sellers to kill C.L. were
    independently sufficient to prove attempted murder.
    After considering both of the State’s alternatives, we cannot conclude
    Retterath engaged in even a “slight act” in furtherance of his intent to kill C.L. that
    rendered voluntary termination of the scheme improbable. Retterath expressed
    his desire to have C.L. killed, purchased castor beans, “Googled” how to make
    ricin, printed instructions from the Internet, and solicited (unsuccessfully) two
    associates to help him plant tainted drugs around C.L.’s home because Retterath
    had a no-contact order prohibiting him from going there. Retterath stored most of
    the castor beans in his refrigerator, but he stashed a few beans in a baggie in the
    pocket of jeans he was not wearing at the time of his arrest. Notably, Retterath
    had not taken a step to extract ricin from the castor beans. He had no poison. He
    did not lie in wait or search for C.L.; he did not case a location for the crime; he did
    not entice C.L. to such a place, nor enter a structure for the purpose of committing
    the crime. He did not possess the castor beans at the place contemplated for the
    commission of the crime.8 As for the solicitation, the facts here were not like
    Leggio, 
    2010 WL 624221
    , at *5 (emphasizing Leggio’s understood plan to have
    intended victims killed was irretrievable once Leggio signed and returned
    8
    In its closing argument, the prosecution told the jury that Retterath’s possession of the
    castor beans was like “carrying around a loaded gun in his pocket.” But unless Retterath
    had been carrying a loaded gun in the vicinity of the contemplated victim or had at least
    been moving in that direction, the State would be hard-pressed to convict him of attempted
    murder under Iowa Code section 707.11. See generally 
    Young, 686 N.W.2d at 185
    –86
    (discussing defendant’s act of shooting rifle at deputy’s vehicle as “type of act that would
    further the specific intent to commit attempted murder”).
    21
    promissory note). Retterath’s entreaties to Sellers and J.R. were preliminary; no
    consideration was exchanged. The State failed to offer proof of an overt act—
    meeting the definition of an assault—that went far enough to convict Retterath of
    attempt to murder. Accordingly, we reverse his attempted-murder conviction and
    remand for dismissal of that count.9
    B.      Search Warrants
    Retterath next alleges a violation of his right to be free from unreasonable
    searches and seizures under the Fourth Amendment to the United States
    Constitution and article I, section 8 of the Iowa Constitution. Retterath contends
    the district court erred in denying his motion to suppress evidence seized during
    the execution of search warrants issued in late January and early February of 2015
    for his house, vehicles, and airplane hangar.10               He argues the information
    presented in the warrant applications was stale, and as a result, the officers lacked
    probable cause for the searches. The applications stemmed from C.L.’s report to
    the police in January 2015 that he had been sexually abused by Retterath starting
    in 2004 and continuing until November 2012.
    9
    Because we find insufficient evidence to support Retterath’s conviction under section
    707.11, we decline to address his claims concerning his pretrial motion to dismiss, the
    weight of the evidence, or the jury instructions as they relate to the conviction for attempted
    murder.
    10
    The warrant also authorized a search of Retterath’s body for any tattoos. He does not
    challenge that search on appeal. In addition, Retterath does not challenge the second
    round of warrants that resulted in the seizure of the castor beans.
    22
    Probable cause requires a reasonable belief that evidence of a crime will
    be found on the premises to be searched; the information upon which this belief is
    based must be current and not remote in time. See State v. Randle, 
    555 N.W.2d 666
    , 670 (Iowa 1996). Along with the passage of time, courts consider (1) the
    nature of the crime (isolated or ongoing), (2) the character of the suspect (nomadic
    or stable), (3) the nature of thing to be seized (perishable, easily destroyed,
    enduring utility to holder), and (4) the place to be searched (forum of convenience
    or secure base). 
    Gogg, 561 N.W.2d at 367
    .
    The affidavit attached to the warrant application discussed C.L.’s
    allegations of being sexually abused by Retterath, as well as the officer’s
    experience concerning the link between persons who sexually abuse children and
    the acquisition of child pornography. The warrant sought computers, other types
    of records and media, and firearms and ammunition. While executing the warrants
    in this case, officers seized computers and guns, as well as a small amount of
    marijuana and drug paraphernalia. In resisting the motion to suppress, the State
    acknowledged its seizure of the drugs was invalid but urged the remaining
    evidence was properly seized because the sexual abuse was ongoing and a
    connection existed between child pornography and sexual abuse.
    On appeal, Retterath argues, “The only information in the warrant for which
    there could ever have been evidence of a ‘crime’ was C.L.’s claim that ‘on one
    occasion,’ on an undisclosed date, Retterath had child pornography on his
    computer.” Retterath points out the alleged viewing of child pornography was more
    than two years—and possibly as long as ten years—before the State’s execution
    23
    of the warrants. He argues the district court should have excluded evidence of
    adult pornography and guns found on his property.
    The State acknowledges the information contained in the application was
    not current but defends the issuance of the warrants under Gogg. The State
    argues the district court correctly relied on the ongoing nature of the sexual abuse
    to justify the State’s search for evidence of child pornography.         The State
    alternatively contends the evidence seized was “barely mentioned at trial” and thus
    the denial of Retterath’s motion to suppress was harmless error. In reply, Retterath
    accuses the State of mischaracterizing the record, noting the adult pornography
    and guns found on his property were discussed numerous times during the trial.
    Upon our de novo review, we reach the same conclusion as the district
    court.    On balance, the ongoing nature of the sexual abuse alleged by C.L.
    overcomes Retterath’s staleness claim. In contrast to theft, robbery, or drug cases
    where law enforcement should expect the suspect to move any evidence fairly
    rapidly, authorities could reasonable believe a suspect would retain child
    pornography or other items used to sexually exploit children for a longer period of
    time. See State v. Woodcock, 
    407 N.W.2d 603
    , 605 (Iowa 1987) (“Their perceived
    usefulness to the suspect would be of a continuing nature, through gratification
    obtained by him.”). The district court properly overruled Retterath’s motion to
    suppress.
    C.    Production and Disclosure of Privileged Records
    Retterath also criticizes the district court’s response to his request for
    privileged records.    A defendant seeking access to privileged records must
    demonstrate “in good faith a reasonable probability that the information sought is
    24
    likely to contain exculpatory information that is not available from any other source
    and for which there is a compelling need for the defendant to present a defense in
    the case.” Iowa Code § 622.10(4)(a)(2)(a). If a defendant makes such a showing,
    the district court will perform an in camera review to determine if the records indeed
    contain exculpatory evidence. 
    Id. at §
    622.10(4)(a)(2)(b). The court then performs
    a balancing test—weighing the need for the disclosure versus the witness’s privacy
    interest. 
    Id. at §
    622.10(4)(a)(2)(c).
    At trial, Retterath sought confidential records from the providers of mental-
    health treatment to C.L., Sellers, and J.R. The district court denied Retterath’s
    requests for the records of Sellers and J.R., but it performed an in camera review
    of C.L.’s records. After reviewing hundreds of pages detailing C.L.’s treatment, the
    district court turned over a single page of C.L.’s medical history to Retterath’s
    counsel that the court determined contradicted C.L.’s allegations of sexual abuse.
    When rejecting Retterath’s requests for an in camera review of the records of
    Sellers and J.R., the court distinguished between the categories of “impeaching”
    and “exculpatory” evidence.
    On appeal, Retterath contends the district court erred in its analysis
    concerning the records of Sellers and J.R. He also argues—to the best of his
    knowledge—the court should have released the entirety of C.L’s records.
    Turning to the records of Sellers and J.R., Retterath argued both witnesses
    for the State had mental-health and substance-abuse disorders that would bear
    upon the truthfulness of their testimony. Retterath asserted Sellers experienced
    “auditory hallucinations which are severe enough to warrant him receiving disability
    payments from Social Security.” In a separate motion, Retterath alleged J.R.
    25
    “portrayed symptoms” associated with a mental illness, discussed being “fuzzy” on
    certain facts during a deposition, and had been transported from a hospital
    psychiatric unit. The State resisted Retterath’s motions, arguing the records would
    contain “only impeachment evidence as opposed to exculpatory evidence.” The
    district court accepted the State’s position.
    Legislative drafters used the term “exculpatory” repeatedly in section
    622.10(4) but did not define it. Exculpatory evidence tends to “establish a criminal
    defendant’s innocence.” Exculpatory Evidence, Black’s Law Dictionary (10th ed.
    2014).
    On appeal, Retterath argues that in a “he said/he said” case like this,
    impeachment evidence is the only exculpatory evidence available. In response,
    the State cautions that we must construe section 622.10(4) with the realization that
    the legislative purpose was to supersede the test from 
    Cashen, 789 N.W.2d at 417
    , with “a protocol that restores protection for the confidentiality of counseling
    records,” see 
    Thompson, 836 N.W.2d at 481
    .             Under the State’s logic, “If
    impeachment evidence qualified as ‘exculpatory’ under section 622.10(4), then
    every conceivable mental health record could be discoverable,” and the
    legislature’s aim to protect confidentiality would be undermined.
    We disagree with the State’s narrow reading of “exculpatory.” In the context
    of discovery for Brady purposes, the United States Supreme Court has rejected
    any distinction between “impeachment” evidence and “exculpatory” evidence. See
    United States v. Bagley, 
    473 U.S. 667
    , 676 (1985). Likewise in State v. Edouard,
    our supreme court remanded for an in camera review of a witness’s counseling
    records because information in the records “could have significantly undermined
    26
    [that witness’s] testimony.” 
    854 N.W.2d 421
    , 442 (Iowa 2014), overruled on other
    grounds by Alcala v. Marriott Int’l, Inc., 
    880 N.W.2d 699
    (Iowa 2016); see also
    
    Neiderbach, 837 N.W.2d at 226
    (stating “all that is required is some plausible
    theory founded in demonstrable fact that suggests the information in the mental
    health records might well prove helpful to the defense”). Retterath established that
    Sellers and J.R. each had a history of psychiatric conditions that could impact his
    reliability as a witness. The defense made a plausible showing (1) exculpatory
    evidence could be unearthed in their mental health records and (2) the critical
    information was not available from another source. See 
    Neiderbach, 837 N.W.2d at 220
    . We remand the case to allow the district court to conduct that review under
    section 622.10(4)(a)(2) to determine whether their records contain exculpatory
    information.     If the district court finds no exculpatory evidence, Retterath’s
    conviction for solicitation to commit murder is affirmed.    If the district court finds
    exculpatory evidence in those records, then the district court should perform the
    balancing test outlined in paragraphs (2)(c) and (d) to assess whether Retterath is
    entitled to a new trial on the conviction for solicitation to commit murder.
    As for C.L.’s records, we have reviewed in camera the nearly five hundred
    pages of confidential information as provided for in section 622.10(4)(a)(2)(a).
    After weighing the need for the disclosure against C.L.’s privacy interest, we find
    no additional exculpatory evidence that should be disclosed to Retterath.
    Accordingly, we affirm as to Retterath’s request for additional records concerning
    C.L. records.
    D.       Exclusion of C.L.’s Videotaped Interview
    27
    Retterath also contests the district court’s decision to exclude the video-
    recording of C.L.’s interview with Deputy Huftalin in January 2015. During C.L.’s
    cross-examination, Retterath’s counsel asked for the entire video to be shown to
    the jury for impeachment purposes. The State resisted, arguing defense counsel
    could “impeach the witness all she wants, but the tape itself does not come in as
    evidence.” The district court ruled the video could not be admitted because it was
    hearsay, but the court marked it as an offer of proof for appeal.
    Retterath’s counsel argued the videotaped interview was not excludable as
    hearsay because the statements were not being offered for the truth of the matter
    asserted—“[c]learly we don’t think it’s true.”    Counsel further asserted: “Best
    evidence is to listen to the video. He’s not reporting on cross-examination what
    the video is saying accurately. And so I think the jury could get to hear that.”
    The district court rejected the defense argument, reasoning, “[W]e should
    be handling that through the normal impeachment process of asking a witness
    about it, and he could either confirm or deny it, that he’d made those prior
    statements.” The court did offer to play the video for the jurors without sound so
    the jurors could see C.L. as he answered questions, but defense counsel declined:
    “You need to be able to hear how he’s saying, what he’s saying, his responses,
    whether he’s forthcoming or not.”
    On appeal, Retterath reiterates his position the video was not hearsay. See
    Iowa R. Evid. 5.801(c). Retterath also argues the video was admissible to rebut
    Deputy Huftalin’s testimony that C.L.’s “general demeanor” during the interview
    was “embarrassment” and “maybe a little bit of shame.”
    28
    In response to Retterath’s argument that he was not offering the video for
    the truth of the matter asserted, the State contends: “This implies some
    substantive, non-impeachment purpose for introducing the entire video—but at
    trial and on appeal, the only purported purpose given for offering this as
    substantive evidence was that it demonstrated C.L.’s demeanor.” The State’s
    response conflates offering out-of-court statements to prove the truth of the matter
    asserted and offering such statements for impeachment purposes.             “A prior
    statement of a witness used to impeach the witness’s testimony is not hearsay
    when the statement is not offered to prove the truth of the statement, but rather to
    prove the fact the witness made a statement at a previous time.” State v. Sowder,
    
    394 N.W.2d 368
    , 370 (Iowa 1986); see Iowa R. Evid. 5.801(c). We look to the real
    purpose for offering the out-of-court statement. See State v. Belken, 
    633 N.W.2d 786
    , 801 (Iowa 2001). Here, Retterath wanted to impeach C.L. with his earlier
    version of events and would not have attempted to establish the truth of his
    assertions in the video. Accordingly, the district court erred in excluding the video
    recording.
    But the question remains whether Retterath was prejudiced by exclusion of
    the video recording. The State argues any error in excluding it was harmless
    because “the full interview video as evidence of C.L.’s demeanor would have been
    hugely advantageous to the State.” Retterath expresses sharp disagreement in
    his reply brief, contending the video was “highly exculpatory” because it would
    have allowed the jurors to make a more informed credibility determination about
    C.L. Where, as here, the proponent of the evidence alleges contravention of a rule
    rather than a constitutional violation, we reverse only if “the complaining party has
    29
    suffered a miscarriage of justice or his rights have been injuriously affected.” State
    v. Lukins, 
    846 N.W.2d 902
    , 911 (Iowa 2014). We presume prejudice unless the
    record shows otherwise. 
    Id. Our review
    of the record shows Retterath’s rights were not injuriously
    affected by the court’s exclusion of the video recording.          Defense counsel
    vigorously cross-examined C.L. concerning his earlier inconsistent statements.
    The jurors were well aware of C.L.’s revision of his original allegations that
    Retterath touched his penis on numerous occasions when C.L. was thirteen and
    fourteen years old.     Moreover, C.L.’s demeanor in the video recording is
    susceptible to different interpretations.     His legs are constantly jittery, and at
    various times he shifts in his chair, hangs his head, and chews his fingernails.
    C.L.’s body language could mean, as Retterath alleges, that C.L. was “someone
    making up details as [he] went along.” Or alternatively, it could reveal, as the
    deputy perceived, that C.L. was embarrassed and ashamed to discuss being
    sexually abused as a youth. Based on this ambiguity, we do not find Retterath
    suffered a miscarriage of justice by the exclusion of this evidence.
    E.     Jury Instructions
    Retterath contends the district court provided several faulty instructions to
    the jury. We will address each challenged instruction in turn.
    1. Unanimity Requirement
    Iowa Rule of Criminal Procedure 2.22(5) requires unanimity in criminal
    jury verdicts. This unanimity requirement is not violated when jurors embrace
    different theories for the crime, as long as the alternative theories are not
    repugnant to each other. See State v. Bratthauer, 
    354 N.W.2d 774
    , 776 (Iowa
    30
    1984); see also State v. Schlitter, 
    881 N.W.2d 380
    , 399 (Iowa 2016) (Wiggins. J.,
    concurring in part and dissenting in part) (discussing need for special
    interrogatories and opining “juror unanimity as to the means by which an offense
    was committed is required to sustain a conviction when the alternative means
    submitted to the jury are inconsistent, repugnant, or conceptually distinguishable
    from each other”).
    At trial, Retterath objected to Instruction No. 18, a uniform jury instruction
    providing: “Where two or more facts would produce the same result, the law does
    not require each juror to agree as to which fact leads to his or her verdict. It is the
    verdict itself which must be unanimous, not the facts upon which it is based.” The
    district court overruled that objection.
    On appeal, Retterath contends Instruction No. 18 was an incorrect
    statement of the law. In his view, the instruction allowed the jurors to convict him
    even if they did not all agree who he solicited, when the solicitation occurred, or
    under what conditions. Indeed, the State argued in closing: “There’s two people
    involved in this solicitation. Half of you could say, I think he just solicited [J.R.].
    The other half of you could say, I think he just solicited Aaron Sellers. But the
    bottom line is you all agree that a solicitation was done.”
    But Retterath did not object to the marshalling instruction stating the jury
    must find he solicited “another” to commit murder, not specifying whether another
    referred to Sellers or J.R. As the State argues on appeal, even if the district court
    had removed Instruction No. 18 from the jurors’ consideration, they could have still
    viewed the solicitation theories in the disjunctive under the un-objected-to
    marshalling instruction. Moreover, Retterath does not contend on appeal that the
    31
    prosecutor misstated the law on unanimity in closing argument.           Accordingly,
    Retterath did not preserve error on his claim concerning a unanimous verdict.
    2. Range of Dates for Sexual Abuse
    Retterath argues the district court erred in overruling his objection to the
    time range in the marshalling instruction for sexual abuse because C.L. did not
    allege in his testimony that sex acts occurred in 2003 or 2004. The State argues
    the earlier dates were properly included because C.L. testified to Retterath’s
    sexual advances during that time frame, even if C.L. did not allege that a sex act
    occurred until several years later.     While the dates used in the marshalling
    instruction should have reflected the testimony offered by C.L., we cannot
    conclude the mistake warrants a new trial. See State v. Griffin, 
    386 N.W.2d 529
    ,
    532 (Iowa Ct. App. 1986) (allowing less specificity regarding date of sexual abuse
    alleged by children).
    3. Specific Intent for Solicitation
    Retterath contends the district court improperly instructed the jury on the
    elements of solicitation to commit murder because the marshaling instruction did
    not mention “specific intent.” Instead, the jury was told the State must prove: “The
    defendant intended that the murder would be committed.”
    We conclude the instruction properly reflected the elements of the offense.
    See Iowa Code § 705.1 (requiring proof that person soliciting another to commit a
    felony had “intent that such act be done”); see also State v. Hall, 
    150 N.W. 97
    , 104
    (Iowa 1914) (holding an instruction following the language of the statute is not
    prejudicial where other instructions fully cover the law as applied to the issue). The
    district court separately instructed the jury on specific intent.     Moreover, the
    32
    prosecution told the jurors in closing arguments that they were required to find
    specific intent for both attempted murder and solicitation to commit murder. The
    jury could not have been misled as to the intent element.
    F.     Motion for Mistrial
    Retterath filed a motion in limine seeking to exclude “any testimony,
    argument, or inference that the defendant committed any act of sex abuse in
    regards to [J.R.].” The court agreed to the exclusion. But during the State’s case
    in chief, several witnesses violated the limine ruling. For example, Iowa Division
    of Criminal Investigation Agent Scott Reger testified Retterath wanted to “kill one
    of the victims using castor beans and ricin.” During his direct examination, Sellers
    referred to Retterath being charged “with a couple of different crimes” and tried to
    clarify a point with the prosecutor by asking: “This is right before he was charged
    with the second thing, right?” Sellers also testified, “I know it was longer than less
    than two weeks before he was charged with yet another victim.”
    In response to these statements, defense counsel moved for a mistrial,
    contending that although the information was not purposefully elicited by the
    prosecution, it was nevertheless “highly prejudicial.” The court denied the motion,
    reasoning: “I do not think the way it came in . . . would really give the jury any clue,
    actually, that there was another sexual abuse charge out there.”
    Then during closing arguments, the prosecutor inadvertently substituted
    J.R.’s name for C.L.’s name. The prosecutor recounted Retterath’s testimony: “He
    had an answer for everything. . . . Did you ever touch [J.R.]? No. Did you ever
    masturbate [J.R.]? No. Did you ever masturbate in front of [J.R.]? No. Just kept
    saying no, no, no.”
    33
    Retterath raised the limine violations again in moving for a new trial. The
    State argued the challenged instances did not alert the jury to the other-bad-acts
    evidence:
    [T]he attorneys knew that there was a second victim. The jury did
    not. So when they hear these statements regarding, one of the
    victims or when I accidently said [J.R.] instead of [C.L.], what the jury
    is probably thinking is they just mistakenly switched up the names,
    or we were talking about the two separate times that the defendant
    was convicted.
    The court denied the motion for new trial, finding the violations did not have “a
    possibility of impacting [the jury’s] decision.”
    The district court enjoys wide discretion in denying a mistrial because “it is
    in the best position to appraise the effect of any alleged misconduct.” State v. Frei,
    
    831 N.W.2d 70
    , 80 (Iowa 2013), overruled on other grounds by 
    Alcala, 880 N.W.2d at 699
    . We find no abuse of that discretion in regard to these passing references
    to a second victim.
    G.     Motion for New Trial/Prosecutorial Misconduct
    In his final assignment of error, Retterath claims he is entitled to a new trial
    based on prosecutorial misconduct. The alleged misconduct involved the State’s
    effort to prove Retterath owned a Luger handgun.
    C.L. testified that when he was a young teenager and had a sexual
    encounter with Retterath in his pickup, the older man showed him a handgun.
    While C.L. did not know what kind of gun it was at the time, in retrospect, he
    believed it was a Luger. Retterath testified he never owned a Luger. As rebuttal,
    the State offered into evidence a photograph showing an owner’s manual for a
    Luger pistol; the manual was found during the warranted search of Retterath’s filing
    34
    cabinet. Retterath testified in surrebuttal that he sometimes purchased manuals
    for guns he did not own.
    Retterath discovered after the trial that the photographed manual was
    published in 2009, which means the evidence could not support the inference that
    Retterath owned a Luger in 2004 or 2005, when C.L. testified he saw it and felt
    threatened to engage in masturbation with Retterath. In closing argument, the
    State told the jury Retterath was “trying to separate himself from having the Luger
    when [C.L.] was 13 years old.” The prosecutor argued: “So he’s saying, I bought
    that manual around this time when all of this was going on . . . . [L]ook at the Ebay
    record. There’s nothing in there that he bought a Luger manual. He is not being
    honest with you.”
    In his motion for new trial, Retterath alleged prosecutorial misconduct based
    on the discussion of the Luger manual. The district court declined to grant a new
    trial on that ground, explaining:
    The evidence regarding that particular pamphlet was fairly brief, and
    it’s the Court’s recall that the defendant testified that he never owned
    a Luger-type pistol. . . . The exhibit that’s been introduced here was
    found in the home . . . and that would have an impact on the
    defendant’s credibility and the statements about never having owned
    or had a Luger pistol.
    On appeal, Retterath argues the State’s use of the photograph in rebuttal
    violated his right to due process and warrants a new trial.11 The State rejects the
    11
    Retterath also argues the State’s use of the manual violated his right to receive
    exculpatory evidence under Brady v. Maryland, 
    373 U.S. 83
    (1963). But this argument is
    a non-starter because the State never actually seized the manual from Retterath and it
    turned over the photograph of the manual during discovery.
    35
    claim of wrongdoing, asserting the manual became relevant impeachment
    evidence when Retterath testified he never owned a Lugar pistol. We agree the
    State was entitled to highlight the question of Retterath’s credibility for the jurors.
    See State v. Graves, 
    668 N.W.2d 860
    , 869 (Iowa 2003) (synthesizing our
    prosecutorial-misconduct doctrine). The district court did not abuse its discretion
    in denying Retterath’s motion for new trial alleging prosecutorial misconduct.
    IV.    Summary
    To recap, we affirm Retterath’s convictions for sexual abuse in the third
    degree and solicitation to commit murder. We reverse his conviction for attempt
    to commit murder and remand for dismissal. We also remand for the district court
    to conduct an in camera review of the mental-health and substance-abuse medical
    records of Sellers and J.R. concerning the solicitation to commit murder conviction.
    AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.