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IN THE COURT OF APPEALS OF IOWA No. 1-809 / 10-2067 Filed December 7, 2011 STATE OF IOWA, Plaintiff-Appellee, vs. VERNON LEE HUSER, Defendant-Appellant. ________________________________________________________________ Appeal from the Iowa District Court for Polk County, Arthur E. Gamble, Judge.

Vern Huser appeals from his conviction for murder in the first degree for aiding and abetting Louis Woolheater in the killing of Lance Morningstar. REVERSED AND REMANDED.

Alfredo Parrish and Andrew Dunn of Parrish, Kruidenier, Dunn, Boles, Gribble, Parrish, Gentry & Fisher, L.L.P., Des Moines, for appellant. Thomas J. Miller, Attorney General, Thomas S. Tauber, Assistant Attorney General, John Sarcone, County Attorney, and Steve Foritano and Michael Salvner, Assistant County Attorneys, for appellee. Heard by Tabor, P.J., Mullins, J., and Miller, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2011).

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TABOR, J. Vern Huser appeals from his conviction for murder in the first degree for aiding and abetting Louis Woolheater in the killing of Lance Morningstar. Huser argues the State presented insufficient evidence of his participation, the district court erroneously admitted Woolheater's out-of-court statements, and his trial counsel was ineffective. Huser also contends his attorney represented him

under a conflict of interest, and the prosecutor engaged in misconduct while cross-examining him and during closing arguments. Viewing the evidence in the light most favorable to the jury's verdict, we find substantial evidence Huser aided and abetted in Morningstar's murder. But because we conclude that the most compelling statements showing Huser encouraged Woolheater's criminal acts constituted impermissible hearsay, we reverse and remand for a new trial. I. Background Facts and Proceedings Vern and Deb Huser met in the early 1990s. The two purchased a modest garbage disposal route and expanded the business into what is now Ankeny Sanitation, a company serving more than 10,000 clients. They eventually

married, but their relationship grew tumultuous in the summer of 2003. The following fall, Deb began an affair with Lance Morningstar, a friend of the couple. Vern Huser grew suspicious, and ultimately hired a detective who observed Morningstar and Deb Huser together. Vern Huser confronted his wife shortly after she moved out of their residence in January 2004, at which point she confirmed his suspicions. The affair continued until April 2004. The Husers' divorce was finalized in May 2004.

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The Husers sold Ankeny Sanitation in connection with the divorce, but both retained positions within the company. arguments between the two. Coworkers witnessed many

Vern harbored anger and betrayal, feelings he In both work and social

made known to many friends and associates.

gatherings, Vern would often vent about his relationship and make statements suggesting Morningstar's demise. He threatened to "put the red dot on his head" and said he could hire someone to kill Morningstar and nobody would find his body. On one occasion, Vern Huser gave a friend a tractor pull schedule

showing the weekends he would be out of town, calling it an alibi. In spring 2004, Vern Huser's friend, Lawrence Webb, introduced Huser to Louis Woolheater. Webb and Woolheater shared a Quonset hut for storage space. Nicknamed Tall Tale Lou, Woolheater often claimed to be a Navy Seal participating in a special task force overseas and having a "high kill" rate. He relayed the same stories to Jackie Putz, Karon Humphreys, Marie Connett, and Michelle Zwank, all of whom believed themselves to be in an exclusive relationship with Woolheater, while simultaneously dating him. Woolheater had extensive knowledge of high caliber weaponry and a sizable gun collection. In the months leading up to Morningstar's disappearance, Huser's animosity toward his estranged wife and her former paramour persisted. He twice tried to confront Morningstar, traveling to bars he was known to frequent, but the two never connected. While searching for Morningstar in August 2004, Huser left a signed note that the bartender recalled to say: "Morningstar, you're a dead man when I find you."

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Morningstar was last seen September 30, 2004 leaving Eddy's bar at 10:35 pm. On the same date, Michelle Zwank had arranged to spend time with Woolheater. Woolheater told Zwank that his brother and his nephew Ricky were coming to town to deal with Morningstar, though Zwank never saw Woolheater's relatives. Woolheater instructed Zwank to drop him off in a baseball field outside Morningstar's house and to return when he called. He left her vehicle with a softsided pool cue bag in hand. When she returned to the field, Woolheater told her to drive to Morningstar's house, stating "Ricky made a hell of a shot." They loaded a body wrapped in a tarp into her trunk and drove Morningstar's truck to Stan's bar before returning to Woolheater's residence. A shaken Zwank left her car at Woolheater's house and retrieved it the following day. Huser's threats ceased after Morningstar's disappearance. When the

subject arose in social gatherings, Huser would reply "no body, no crime," and "someone will find him when the snow melts." Hunters discovered Morningstar's body on February 6, 2005. A police search of Woolheater's residence yielded items linking Vern Huser to Woolheater, including a yellow sticky note with Deb Huser's address in Vern Huser's handwriting. Phone records showed frequent calls between Vern Huser and Woolheater in the months before Morningstar's disappearance, but only one call made after September 30, 2004. On March 10, 2010, Woolheater was convicted of first-degree murder. The State charged Huser with first-degree murder in violation of Iowa Code sections 707.1 and 707.2(1) (2003), alleging he aided and abetted Woolheater in killing Morningstar "while having malice aforethought and by acting

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willfully, deliberately, and with premeditation and with specific intent to kill." On October 29, 2010, a jury returned a guilty verdict, and the court sentenced Huser to life imprisonment on December 10, 2010. He now appeals his conviction on several grounds. II. Issues on Appeal Huser divides his argument into five assignments of error. First, he

alleges his counsel had a conflict of interest because the attorney previously represented Deb Huser, a key prosecution witness. Second, he contends the evidence was insufficient to support his conviction. Third, Huser argues the

State's cross-examination of him and closing rebuttal amounted to prosecutorial misconduct. Fourth, he claims the court erroneously admitted Woolheater's outof-court statements. And fifth, Huser alleges he was denied effective assistance of counsel. Because we resolve the appeal based on the second, fourth, and fifth issues, we do not address Huser's first and third arguments. III. Sufficiency of the Evidence A. Scope and Standard of Review

We review sufficiency of evidence challenges for correction of legal error. State v. Nitcher, 720 N.W.2d 547, 556 (Iowa 2006). We uphold a jury's verdict if the record shows it is supported by substantial evidence. State v. Acevedo, 705 N.W.2d 1, 3 (Iowa 2005). "Evidence is substantial if it would convince a rational trier of fact the defendant is guilty beyond a reasonable doubt." State v.

Jorgensen, 758 N.W.2d 830, 834 (Iowa 2008). The State bears the burden to prove each element of the crime charged. State v. Gibbs, 239 N.W.2d 866, 867

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(Iowa 1976). We will consider all the evidence, including that which detracts from the verdict, as well as that which supports the verdict. State v. Hagedorn, 679 N.W.2d 666, 668

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