from the Iowa District Court for Mitchell County, James M.
Drew (motion) and Gregg R. Rosenbladt (trial), Judges.
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.
L. Campbell of Dickey & Campbell Law Firm, P.L.C., Des
Moines, for appellant.
J. Miller, Attorney General, and Louis S. Sloven, Assistant
Attorney General, for appellee.
by Vogel, P.J., and Tabor and Bower, JJ.
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.
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.
Facts and Prior Proceedings
to the prosecution's theory, Retterath was reenacting a
murderous plotline from an episode of Breaking
Bad as he solicited associates Aaron Sellers
and J.R. to exact revenge against C.L., the young man who
accused Retterath of sexual abuse.
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.
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. 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.
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
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 "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
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.
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 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."
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, " and "how fast does ricin
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.
another pocket of the same jeans, the searchers found a
handwritten list of the following items:
-6 Big Rolls Wide Duct Tape
-50 or 60 Large Heavy Duty Heft Bags (No draw strings if
-Saws All w/3 New blades, 6 inches long at least
-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
testified he jotted down the list 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.
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 dose of ricin. On
cross-examination, Dr. Barnaby acknowledged the FBI does not
monitor the sale of castor beans on the internet.
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
Scope and Standards of Review
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
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).
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).
Sufficiency and Weight of the Evidence
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.
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 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
Sexual Abuse in the Third Degree
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