State of Iowa v. Barbara Lee Pasa

IN THE COURT OF APPEALS OF IOWA

No. 19-2050
Filed May 26, 2021

STATE OF IOWA,
Plaintiff-Appellee,

vs.

BARBARA LEE PASA,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Monroe County, Shawn Showers,

Judge.

Barbara Pasa appeals her convictions for first-degree murder and first-

degree arson. CONVICTIONS AFFIRMED; SENTENCES AFFIRMED IN PART,

REVERSED IN PART, AND REMANDED.

Christopher A. Clausen of Clausen Law Office, Ames, for appellant.

Thomas J. Miller, Attorney General, and Benjamin Parrott, Assistant

Attorney General, for appellee.

Heard by Vaitheswaran, P.J., and Greer and Schumacher. JJ.
2

GREER, Judge.

Firefighters found Tim Pasa deceased in the bedroom of his home engulfed

in flames. Tim was Barbara Pasa’s husband of eighteen years. And the property

burning was the family home they shared with their two teenage children. Fast

forward past the investigation, Barbara was charged and found guilty of first-

degree murder and first-degree arson following a jury trial in September 2019.

After the verdict was rendered, the district court sentenced Barbara to life in prison

without the possibility of parole on the first-degree-murder charge, plus twenty-five

years for first-degree arson. Now, Barbara appeals the district court’s denial of her

motion for new trial, arguing the jury verdict was contrary to the weight of the

evidence. Next, she claims the district court erred by denying her motions for

judgment of acquittal. She also claims the district court erred in sentencing her to

a mandatory minimum term of incarceration, requiring her to serve 70% of her

sentence for first-degree arson before becoming eligible for work release or parole.

See Iowa Code § 902.12(5) (2019).1 Lastly, she claims ineffective assistance of

trial counsel but acknowledges the record lacks support for these claims and asks

they be preserved for postconviction relief (PCR).

1Iowa Code section 902.12(5) provides:
A person serving a sentence for a conviction for arson in the first
degree in violation of section 712.2 that occurs on or after July 1,
2019, shall be denied parole or work release until the person has
served between one-half and seven-tenths of the maximum . . . term
of the person’s sentence as determined under section 901.11,
subsection 5.
(Emphasis added.)
3

I. Factual Background.

Barbara and Tim’s two teenage children left the family house the morning

of May 5, 2018, to catch a bus departing at 6:30 a.m. for a soccer tournament.

O.P., their son, did not see Tim that morning. But the evening before, Tim told

O.P. he wanted to get away from Barbara and would not be attending the

tournament. That morning, Barbara told the children Tim said he was not feeling

well and was sleeping. This left Barbara and Tim alone in the house together. The

time Barbara left the home was disputed. In an interview with law enforcement,

Barbara claimed she left the house by 7:00 a.m., but a neighbor testified she drove

past the Pasa home at roughly 7:22 a.m. and saw Barbara’s car in the driveway.

What is undisputed is around 7:30 a.m., multiple neighbors noticed smoke

emanating from a bedroom window on the east side of the Pasa’s home. The fire

was reported to a 911 operator at 7:33 a.m.

Police officers and firefighting personnel arrived minutes later and entered

the home. They discovered Tim’s severely burned body lying on the right side of

the bed in the master bedroom. When they reached him, it was obvious Tim was

deceased. Per protocol, an investigation into the fire and a forensic autopsy of

Tim’s body commenced.

The fire investigation began when Vern Milburn, Assistant Chief of the

Centerville Fire Department and state certified fire investigator, arrived on the

scene. He provided testimony for the State at trial. After entering the Pasa home

Assistant Chief Milburn noticed several oddities he later described as “red flags.”

First, he did not hear any smoke detectors going off in the home. Neighbors who

arrived before him also did not hear smoke detectors. However, Assistant Chief
4

Milburn discovered two smoke detectors. One on the west side of the home had

its “door” opened rendering it inoperable. Another smoke detector in the hall

leading to the master bedroom was still on the wall, but melted, with the batteries

nearby on the floor. In Assistant Chief Milburn’s experience, typically when a

smoke detector melts “the battery is . . . inside . . . it’s not visible. Once it melts, it

usually just all kind of comes in a big glob and stays together, and it all falls down

together. They usually don’t separate.”

Next, Assistant Chief Milburn noted the highest concentration of fire

damage was in the master bedroom, specifically at the headboard on the right side

of the bed where Tim’s body was found.

In this situation with this bed, we looked at depth of char. So
if you look at the headboard, I know it’s hard to see, but if you look
at the headboard, you can see on the right side of it all the spindles
and everything are completely burnt up. They’re completely gone.
As you work your way back to the left, the spindles start
getting—the depth that they get—they’re deep in char, but as they
start coming back to the left, then they start coming back to more and
more to them. So that’s kind of what we look at that kind of brings
us back to where the highest concentration of fire probably was.

In trying to locate a fire source, Assistant Chief Milburn observed a candle on the

floor by the left side of the bed in the master bedroom. During the course of the

investigation, Barbara told investigators, friends, and family (sometimes

unprompted) that she believed the candle was the source of the fire, explaining

she had placed it on the left bedside table to cover the smell of dog urine in the

bedroom the morning of the fire.2 Assistant Chief Milburn noted the candle was

2 Barbara explained that the twelve-year-old family dog urinated on the carpeting
that morning. Barbara used Febreze, an odor inhibitor product, to mask the smell
but also lit a “three wick” candle and placed it on the side table located on the left
side of the bed.
5

on its side but the bottom was not blackened from smoke or fire. Additionally, there

was a white round spot the size of the candle bottom on the carpet next to the

candle. This suggested to him that the candle was not on its side when the fire

started.

Assistant Chief Milburn also spoke to Barbara the day of the fire. She said

she left the house around 6:50 a.m. that morning. During that interview, Assistant

Chief Milburn thought Barbara’s demeanor was strangely calm and emotionless

given the loss of her husband. He considered this one of the “red flag” concerns

and noted “[w]hen we talked about red flags, in my years in the fire service, I’ve

had a lot of people that lose their pet in a house fire that is a lot more upset than

what I was getting from Barbara.” Given these “red flags,” Assistant Chief Milburn

contacted Special Agent David Linkletter from the Iowa Department of Public

Safety, State Fire Marshal Division, to help investigate.

Bringing years of fire analysis experience to the scene, Special Agent

Linkletter offered his expertise to develop the cause and origin of the fire. He also

testified for the State at trial. Special Agent Linkletter corroborated Assistant Chief

Milburn’s findings about the two smoke detectors being inoperable. But he mainly

focused on the master bedroom, as it was already established the fire was

centralized there.3 He determined most of the fire damage existed on the right

side of the bed where Tim’s body was found when compared to the left side. The

burn patterns established the flames directly hit the right side of the wall and right

3 Actual fire damage was contained to the master bedroom, although there was
smoke damage throughout the home. Special Agent Linkletter determined the fire
originated in the master bedroom and ruled out all other areas inside and outside
the home as the origin of the fire.
6

side of the headboard. Special Agent Linkletter also ruled out the candle as the

source of the fire:

Q. If a candle were placed on the floor right side up in that
circular area with the flame lit, could it have been a possible ignition
source? Did you consider it? A. Yes. Absolutely.
Q. Did you rule it out? A. Yes.
Q. Why? A. Earlier I said the burn patterns can tell us a lot
about what burns and also what doesn’t burn. And in this case, at
least the circumstance with the candle, we have a wooden structure
for the box springs that is very, very close to that area burning on the
floor and the candle. If we had an event that started there that really
contributed to this fire, it would have burned in that area for a much
longer time to cause more heat damage to its immediate
surroundings. It wouldn’t have just, you know, traveled from one spot
to another. Fire typically stays where it is, and it’s going to consume
the things around it. And it’s going to take some time, so it’s going
to generate some heat. And so other things while that fire is growing
are also going to sustain damage as well.

Testing done on the flooring of the bedroom was inconclusive as to the presence

of any accelerants. Special Agent Linkletter provided extensive testimony at trial,

which boiled down to these conclusions:

Q. So after looking at the scene, getting lab results back from
the [Department of Criminal Investigations] . . . looking at everything,
considering everything here, were you able to determine the cause
of the fire . . . on May 5, 2018? A. We determined the fire originated
on the mattress, on the right side of the mattress, based on the burn
patterns that we had. It was very apparent to us that that’s where
the main source of the fire was. That’s where the fire burned for the
longest period of time, and that’s where the fire extended from.
Q. So no accidental sources; right? A. That’s correct.
Q. Was this a set fire, in your opinion? A. It appeared to us
the fire was intentionally set using some sort of open flame in one
way or another.
Q. And the origin of the fire is in the right side of the mattress?
A. Correct.

On cross-examination Barbara’s counsel presented a different theory on the origin

and cause of the fire, again centered on the candle as the source. Special Agent

Linkletter addressed that theory:
7

Q. But there was a candle that was— A. That’s correct.
Q. —an inch and a half from the bed railing, wasn’t there? A.
That’s absolutely correct.
Q. So if the candle that’s an inch and a half from the bed rail
catches a blanket or a quilt that might be hanging over the edge on
fire, that could be a source of the fire, couldn’t it? A. The burn
patterns don’t suggest that.
Q. Well, they don’t suggest that because the fire couldn’t grow
as fast on this corner of the bed, could it, because it doesn’t have as
much oxygen? A. I think if we had significant fire there, we would
have had more patterns to suggest that.

In short, Special Agent Linkletter rejected Barbara’s repeated suggestion that the

candle caused the fire. He determined the fire was not accidental, it was set on

purpose.

We now turn to the investigation into the cause of Tim’s death. Dr. Dennis

Klein, the state medical examiner, performed the forensic autopsy on Tim. The

goal of the autopsy was to determine the manner and cause of death. 4 Dr. Klein

had assistance from Dr. William Anderson, a forensic toxicologist, in reaching his

conclusion that Tim’s cause of death was acute propofol intoxication and manner

of death was homicide. Dr. Klein quickly ruled out the fire as a cause of death;

there was no soot or smoke in Tim’s mouth or windpipe and there were negligible

levels of carbon monoxide in his blood. These findings showed Tim died before

the fire. Other than extensive thermal injuries, there were no other signs of

physical injury on Tim’s body. Natural disease was also ruled out. So Dr. Klein

sent a sample of Tim’s blood to the toxicology lab to test for any drugs in his system

that could have caused death. At first he ordered an “expanded panel, which

4 Dr. Klein testified cause of death means “any disease, injury, any poisoning, or
any abnormality that ultimately leads to a person’s death.” Manner of death means
“a category of death that helps explain how the death occurred . . . Those include
natural, accident, suicide, homicide, and undetermined.”
8

includes many of the drugs of abuse that we see in society as well as a number of

prescription-type drugs . . . also drugs that can cause death.” Dr. Klein explained

this was an “inclusive test” because he did not know what to look for. The first

toxicology panel showed nothing unusual that could explain Tim’s death. At this

point Dr. Klein was stumped, so he consulted with the toxicologist, Dr. Anderson.

They decided to test specifically for the nonnarcotic drug propofol.

[O]ver the course of the discussion, we always look for what potential
would the person or some other person have access to that would
be beyond what our expanded panel is.
So we had information that Mr. Pasa’s wife was a surgical
nurse or had access to surgical, so that opened up some
possibilities. And including in that were some specific drugs, one of
them including propofol as well as a couple other medicines that
were found—or medicine bottles that were found in the home. We
added those to a testing to look specifically for those drugs.

(Emphasis added.)

Dr. Klein explained the nature of propofol and why it must be carefully

administered in a medical setting:

So propofol is a medicine that’s only given intravenously, so that
means you need to stick a needle into a vein, and it needs to be
infused. It’s a medicine that’s used usually by anesthesiologists, so
these are doctors who put people to sleep for surgeries, and it’s a
drug that that has to be given in a controlled setting. And what I
mean by that, you really need to be in a medical setting that’s
prepared for surgery so that you can provide assistance for the
person’s breathing, and if they run into problems, you have IV
access. Because it’s a drug that will cause problems to people’s
blood pressure and breathing if not having these other resources
available.[5]

5 In a story familiar to many, pop singer Michael Jackson died “because of a fatal
cocktail of medications in his system, most notably an excessive amount of the
surgical anesthetic propofol.” Jen Chaney, The full story on Michael Jackson’s
tragic death (June 14, 2016), https://www.washingtonpost.com/
entertainment/books/the-full-story-on-michael-jacksons-tragic-death/2016/06/14/
5d9f74ee-3181-11e6-8758 d58e76e11b12_story.html.
9

(Emphasis added.) The new testing revealed Tim had 0.18 micrograms per

milliliter of propofol in his blood. This was a low level; Dr. Klein said, “In people

undergoing anesthesia, usually it’s on the order of [five] micrograms per milliliter

while they’re asleep, while they’re undergoing surgery.” In other words, the

amount found in Tim’s blood was far less than anesthesiologists use to put a

patient to sleep for surgery and was not a lethal level. Still, Dr. Klein found the

presence of propofol in Tim’s blood significant:

[I]t’s very rare for us to find it in our patient population because it
tends to be a drug that’s in a medical setting.
Only usually physicians or nurses really have access to
propofol. The fact that we have a person who’s outside of a medical
setting with propofol, no matter what the concentration is, in the
absence of some other explanation for cause of death, is very
significant.
Part of the reason for doing the autopsy and doing all these
other tests is to exclude all other possibilities, and when the only
possible cause of death left is propofol, which we know can have a
wide range of concentrations in people who have died from propofol,
that really leads us very strongly to conclude that this is the cause of
death.

Dr. Klein also explained that the low level of propofol in Tim’s blood at the time of

the autopsy was not necessarily indicative of the level when he died.

So propofol eliminates very quickly, within minutes. So it’s possible
that his level could have been quite a bit higher at the time of injection
and then he becomes what’s called hypoxic, meaning not enough
oxygen, because he’s not breathing enough. So that would give time
for that drug to be eliminated and then he would die several minutes
or a period of time after that injection, but the damage is already done
without someone there to provide ventilation, so stick a tube down
his throat to provide ventilation for him to survive.

But Barbara argued a joint trial stipulation entered with the State, containing an

opinion of Dr. Anderson, contradicted Dr. Klein’s opinions. And as Barbara told

the jury, “So . . . when the attorney general make a big deal of the fact that the
10

autopsy is performed days later, their own expert says, ‘We don't expect the

propofol level to go down after he’s dead.’”

To address the difficulties in administrating the drug, both the State and

Barbara, attacking from different vantage points, directed the jury to consider an

important question: how could she have administered the fatal dose intravenously

without resistance from Tim, a much larger person? There was evidence that a

large-gauge needle was necessary to inject propofol, and Barbara argued there

was no physical way she could have injected the amount necessary to induce

sleep and ultimately kill Tim. Dr. Klein testified, “I’m trying to figure out how does

someone get propofol into them, and so I wanted to know is there some other drug

that could have been used to cause Tim to be at least unconscious or at least

submissive to the point that propofol could be injected.” While Dr. Klein did not

have a conclusive answer, he identified insulin as a possible substance that could

have rendered Tim unconscious before being injected with propofol. Barbara was

a diabetic, and insulin needles were all over the Pasa home and in her vehicle.

According to Dr. Klein, because insulin needles are small and “[i]t can just be

injected just in the skin without even—it would feel like a mosquito bite, and that

could be injected and someone could become unconscious from low glucose—low

sugar very quickly.” Still, Tim’s blood tests did not detect insulin or drugs of

sedation other than propofol, but Dr. Klein agreed this did not mean insulin or

sedation drugs were not administered. Because of the time it took to rule out other

causes of death, Dr. Klein believed it was possible other substances “could have

all dissipated by the time we got [the results].”
11

On cross-examination, Dr. Klein agreed he could not “rule out” the

possibility that a combination of Tim’s blood-pressure medication6 and propofol

could have lowered his blood pressure to a fatal level. He also agreed people

sometimes use propofol recreationally to help them sleep or to produce a sense of

euphoria.7 Tying the propofol theory back to the fire, Dr. Klein agreed it was

unlikely Tim could have injected himself with the drug and also started the fire.

Overall, Dr. Klein’s testimony demonstrated he firmly believed acute propofol

intoxication was the cause of death and the manner of death was homicide.

As noted, Dr. Klein decided to test for propofol given Barbara’s access to

the drug as a surgical circulating nurse at the local hospital. Dustin Bozwell, a

nurse anesthetist who worked with Barbara, testified about hospital procedure and

staff access to propofol. First, he explained “wasting” procedures, meaning how

leftover drugs are disposed of post-surgery. There are different procedures

depending on a drugs classification as a narcotic or nonnarcotic. Narcotic drugs

are highly regulated and kept in double locked boxes separate from nonnarcotics.

If there are leftover narcotics after a surgery, the amount wasted is first recorded

by the nurse anesthetist. Then a registered nurse inspects the wasted narcotics

to verify the record is correct before signing off. This process is described as a

“two-party system.” Propofol is classified as a nonnarcotic, non-controlled drug

not subject to the narcotic procedures. Bozwell described the wasting procedure

for nonnarcotics at trial:

6 Tim had a slightly high but non-fatal level of amlodipine, a prescribed blood-
pressure medication, in his blood at the time of the autopsy.
7 As we discuss later, no evidence suggested Tim used propofol or any other drugs

recreationally.
12

Q. So narcotics have their own system, a two-party system,
for wasting? A. Correct.
Q. With respect to nonnarcotics, what happens with leftovers?
A. With those drugs, then, we have two waste disposals at our
disposal. One is a red box, which we put all what we call “sharps,”
which would be needles or anything that would have some method
of cutting a person. So if it’s a glass vial or if it’s a surgical instrument
that is sharp, anything that is sharp goes into the sharp box. All other
liquid medications go into a black disposal box that is right next to
the red box.
Q. We’ll talk about those boxes here in a little bit. Is that
system, though, the nonnarcotic waste system, is that a two-party
system, or is that a single party? A. That’s just us. Whenever we’re
finished with whatever drug—when we know that we’re finished with
that, we just throw it into that black box.
Q. There’s no accounting for how much is left? A. No.

The lack of accounting procedures for propofol was confirmed by the testimony of

other hospital staff members; the nurse anesthetist would record how much

propofol was wasted before it was tossed in the red or black bins. Other than that

sole record, there was no accounting for the discarded propofol.

The red and black bins for wasted nonnarcotic drugs were in the two main

operating rooms at the hospital. The bins were not emptied until they became full,

at which point a circulating nurse would seal them off and wheel them to a

maintenance closet for disposal. Barbara was a circulating nurse and agreed

removing the bins was one of her job duties. But she claimed she never removed

the bins herself. Bozwell confirmed Barbara’s access to propofol from the

nonnarcotic waste bins, as well as surgical items like sterile needles and syringes.

He also agreed Barbara was not the only hospital employee who had access to

the nonnarcotic waste bins. On cross-examination, Bozwell estimated it may have

taken up to a full twenty milliliter bottle of propofol to put a man of Tim’s size to
13

sleep; but it was not uncommon for a full twenty milliliter syringe of propofol to be

wasted and disposed of in the operating room bins.

Other circumstantial evidence was presented at trial. First, the State

postured a financial motive for Barbara to kill Tim. Other testimony detailed her

behavior after Tim’s death. No one disputed that Tim’s and Barbara’s marriage

was on the rocks by May 2018. Both Tim and Barbara told others about the

likelihood of a future divorce. Over several interactions in April 2018, Barbara told

her friend Sonja Carson she did not think the marriage would last through the

summer. She told Sonja and other friends at a dinner that she “fucking hated Tim”;

she also said she “knew how to get rid of somebody if she wanted to” although she

“could have been” joking according to Sonja. Bethany Ahnen, who considered

Barbara one of her closest friends, testified that Barbara told her a week before

Tim’s death that she wanted the marriage to end. When Bethany advised Barbara

to get a divorce, she responded that she could not afford a divorce. Barbara’s

behavior around the time of the fire and Tim’s death was also a topic of much

discussion at the trial. Multiple friends, coworkers, investigators, and family

members, including Barbara and Tim’s son testified about her behavior and

demeanor. Almost every one of these witnesses described her as acting

unemotional, matter of fact, and stoic. They all considered this unusual given Tim’s

death. Barbara’s niece was at the house the morning of the fire and described

Barbara acting upset and resistant when she found out Tim’s body would undergo

an autopsy. Barbara confirmed as much during her testimony, but claimed she

was only upset because she didn’t want his body “any more cut up.”
14

Barbara admitted at trial that she and Tim had financial difficulties and were

six months behind on their home mortgage payments. She discussed increasing

Tim’s life insurance policy, which she described as a mutual decision, from

$50,000 to $200,000 during an open enrollment period in October 2017. The

policy went into effect in February 2018. Barbara was the beneficiary of the policy,

and she explained the policy was increased mainly so she could afford to cover

the home mortgage if anything happened to Tim. She also said she had tried to

increase her own life insurance policy during the 2017 open enrollment period but

was denied, so increasing Tim’s policy amount was the only way to increase

coverage for the family. Barbara maintained she and Tim decided to increase his

insurance together and that he participated in making the changes by giving

Barbara information from his employer insurance account.

At trial Barbara attacked the evidence against her and postured a different

explanation for Tim’s death. Barbara’s version and theories surrounding the

events of the fire contrast sharply with that of witnesses and investigators. Barbara

contended the more plausible theory as to causation of Tim’s death was the

interaction of propofol with his blood-pressure medication. She points to Tim’s

training as an EMT to suggest he could have handled his own injection and likely

was using the drug recreationally. She also presented evidence that a propofol

injection requires use of a large-gauge needle, causes burning pain,8 and

suggested it would take more than seconds to inject a fatal dose. She tied this

8 Testimony from Dr. Klein and other medical professionals confirmed that propofol
injections produce a burning effect and is often given with the drug lidocaine to
mitigate the effect. No lidocaine was found in Tim’s blood.
15

back to her theory that it was not possible that she could have injected Tim without

his knowledge or resistance, considering he was much bigger than she. While the

State argued she likely injected insulin or muscle relaxers to knock him out for the

propofol injection, Barbara countered with the lack of toxicology evidence of any

other substance in Tim’s system.

While investigators believed Barbara was the supplier of the propofol, she

offered another possibility to produce juror doubt, urging their next door neighbor,

a nurse anesthetist, supplied Tim with the propofol. As a nurse anesthetist, the

neighbor also had access to propofol. He and Barbara exchanged text messages

at 5:30 a.m. the morning of the fire; because his garage faced the Pasa’s bathroom

Barbara knew when he was leaving his house and would occasionally text him

asking if he was heading to work at the hospital early. Such was the case the

morning of the fire. Although not preregistered, the neighbor purportedly went to

a training seminar but left early and returned to the neighborhood after his wife

alerted him about the fire. The front doors of the house were found open by other

neighbors on the scene right after the fire began. Further, before the public had

knowledge of the presence of propofol, this neighbor mentioned to an investigator

that he heard a “rumor” at the hospital where he and Barbara both worked about

the possibility the drug was involved in Tim’s death. Likewise, this neighbor

testified at trial about his knowledge of the characteristics and administration of

propofol.

As for the source of the fire, Barbara stood by the candle theory. She

surmised that Tim either moved the candle from the left bedside table where she

had placed it to the floor to access his Kindle, or possibly knocked the candle over
16

on accident. She argued the candle made contact with the bedding either by the

dog jumping on the bed or by Tim moving the covers, setting the bed ablaze. To

explain the burn patterns and more extensive damage on the right side of the bed,

Barbara suggested a guitar case found on the upper left-hand corner of the bed

inhibited the supply of oxygen on the left side but that the fire began to rage as it

moved to the right side where Tim’s body was found. As for the disabled fire

alarms, Barbara explained Tim did that because she had been cooking the night

before and burned some food. And she showed investigators a burnt finger during

the interviews.

To create a timeline of Barbara’s movements, Special Agent Don Schnitker

obtained Barbara’s cellphone as part of the investigation and created a searchable

digital record of the phone’s contents. He noted that Barbara sent a text to her

daughter at 7:08 a.m. on May 5, stating she would be a little late to the soccer

tournament.9 The records showed she made no attempt to contact Tim that

morning even after learning about the fire. When Special Agent Schnitker

confronted Barbara about this in an interview she offered no explanation. The

phone records also showed that between 7:3610 and 7:49 a.m., Barbara missed at

least five phone calls from concerned friends and neighbors who heard about the

fire. She began returning calls at 7:51 a.m. and later explained she missed the

calls because of poor cell phone coverage. Investigators also learned Barbara

made a cash withdrawal from a local bank ATM that morning; a video recording

9 Barbara changed her timeline during trial testimony, claiming she must have left
the house at 7:08 given her text to her daughter.
10 By 7:36 a.m. neighbors, police officers, and firefighters were on the scene at the

Pasa home.
17

from the bank showed her making the withdrawal around 7:25 a.m.11 The bank

manager who pulled the footage for investigators estimated the drive from the

Pasa home to the bank takes around five minutes, give or take a few minutes. And

the footage from the bank, which is roughly a five-minute drive from the Pasa

home, showed Barbara was there around 7:25 a.m. Special Agent Schnitker

testified there was no evidence Tim used propofol or any drugs recreationally; no

evidence he had enemies or anyone with a motive to kill him; and no history of

violence of any kind.

After the investigation concluded, Barbara was charged with first-degree

murder and first-degree arson in June 2018. Trial began on September 17, 2019,

and lasted one week. After deliberating for roughly three hours, the jury delivered

a verdict finding Barbara guilty of both charges.

II. Standard of Review and Error Preservation.

Barbara first claims the district court erred in denying her motions for

judgment of acquittal, arguing the State presented insufficient evidence for the jury

to convict. The State agrees she preserved error. “We review challenges to the

sufficiency of [the] evidence for correction of errors at law.” State v. Albright, 925

N.W.2d 144, 150 (Iowa 2019).

Next, Barbara claims the district court erred in denying her motion for a new

trial on the basis the jury’s verdict was contrary to the weight of the evidence. The

State does not contest she preserved error. We review a district court’s denial of

11The video footage of Barbara at the bank is timestamped at 7:38 a.m., but the
bank manager who pulled the footage testified at trial that the time stamp was
twelve or thirteen minutes fast.
18

a motion for new trial for abuse of discretion. State v. Reeves, 670 N.W.2d 199,

202 (Iowa 2003). “Trial courts have broad discretion in passing on motions for new

trial.” State v. Atley, 564 N.W.2d 817, 821 (Iowa 1997). Abuse of discretion occurs

when the district court “exercised its discretion ‘on grounds or for reasons clearly

untenable or to an extent clearly unreasonable.’” Id. (citation omitted). “On a

weight-of-the-evidence claim, appellate review is limited to a review of the exercise

of discretion by the trial court, not of the underlying question of whether the verdict

is against the weight of the evidence.” Reeves, 670 N.W.2d at 203.

Third, Barbara and the State agree that her alleged act of first-degree arson

occurred on May 5, 2018, before the July 1, 2019 amendment to Iowa Code section

902.12 creating the mandatory minimum requirements. See Iowa Acts ch. 140,

§ 39. Both parties agree imposing a 70% mandatory minimum here violates ex

post facto principles12 and that Barbara’s sentence should be remanded to the

district court to eliminate the mandatory minimum requirement. A claim of an illegal

sentence is normally reviewed for correction of errors at law. State v. Hoeck, 843

N.W.2d 67, 70 (Iowa 2014). But a constitutional challenge to an illegal sentence

is reviewed de novo. State v. Lyle, 854 N.W.2d 378, 382 (Iowa 2014).

Finally, Barbara claims she received ineffective assistance from her trial

counsel. Her claims relate to alleged failures of trial counsel in investigating and

presenting her case. Barbara admits she “refers to matters which are not clear

within the record.” She asks that we preserve her ineffective-assistance claims if

12 See U.S. Const. art. I, § 10, cl. 1; Iowa Const. art. I, § 21.
19

we find the record insufficient to resolve them. The State agrees the ineffective-

assistance claims should be preserved for PCR proceedings.

III. Analysis.

A. Sufficiency of the Evidence.

We start with Barbara’s claim that the district court erred in denying her

motions for judgment of acquittal. She argues the State presented insufficient

evidence for the jury to convict her of first-degree murder and first-degree arson.

“In reviewing challenges to the sufficiency of evidence supporting a guilty verdict,

courts consider all of the record evidence viewed in the light most favorable to the

State, including all reasonable inferences that may be fairly drawn from the

evidence.” State v. Reed, 875 N.W.2d 693, 704 (Iowa 2016) (citation omitted). “A

jury verdict finding of guilt will not be disturbed if there is substantial evidence to

support the finding.” State v. Robinson, 859 N.W.2d 464, 467 (Iowa 2015).

Evidence is substantial if it would “convince a rational trier of fact that the defendant

is guilty beyond a reasonable doubt.” Id. (citation omitted).

We first address the first-degree-murder conviction. The State had the

burden to prove beyond a reasonable doubt that Barbara, having malice

aforethought, did willfully, deliberately, and with premeditation kill Tim. See Iowa

Code §§ 707.1, 707.2(1)(a) (2018). But from a juror’s view, what the State lacked

in direct evidence it more than compensated with substantial circumstantial

evidence of Barbara’s guilt. See State v. Huser, 894 N.W.2d 472, 491 (Iowa 2017)

(noting direct and circumstantial evidence are equally probative). First, Dr. Klein

was clear and unwavering in his belief that Tim’s death was a homicide caused by

acute propofol intoxication. A jury could find that Tim was dead before the fire
20

began. Likewise, the autopsy confirmed the carbon monoxide levels in Tim’s blood

were negligible and no soot or smoke was found in his lungs. There was also no

evidence of any injuries causing death, other than the severe burns covering his

body. Although Tim had an enlarged heart and took medication to treat high blood

pressure, Dr. Klein ruled out a heart attack or other natural causes of death. In

Dr. Klein’s opinion, the presence of propofol in Tim’s blood was highly suspicious

and the only explanation for the cause of death. And it was not disputed that

Barbara had regular access to propofol as a circulating nurse at the hospital, while

Tim did not. The jury was free to reject Barbara’s theory that Tim injected himself

with propofol for recreational use, particularly because there was no history of drug

use shown or an explanation of how Tim would have obtained propofol. As for the

theory that the neighbor-nurse anesthetist might have provided the drug to Tim,

the jury was able to evaluate the neighbor’s creditability as he testified at trial. See

State v. Dudley, 856 N.W.2d 668, 676 (Iowa 2014) (“Our system of justice vests

the jury with the function of evaluating a witness’s credibility.”). While Barbara

identified theories for the cause of Tim’s death as well, the State offered plausible

counter responses with testimony from experts in their fields. “The jury is not

required to accept the defendant’s version of the events.” State v. Helm, 504

N.W.2d 142, 146 (Iowa Ct. App. 1996); accord State v. Sanford, 814 N.W.2d 611,

615 (Iowa 2012) (“Inherent in our standard of review of jury verdicts in criminal

cases is the recognition that the jury [is] free to reject certain evidence, and credit

other evidence.” (alteration in original) (citation omitted)).

Barbara argues the level of propofol found in Tim’s blood was not enough

to put him to sleep, let alone cause death. This is true; the level of propofol in
21

Tim’s blood was low. That said, Dr. Klein testified the level of propofol in Tim’s

blood by the time of toxicology tests was not necessarily indicative of the level

when he was injected. Barbara counters this by pointing to a joint stipulation

offered at trial in which Dr. Anderson, the toxicologist consulted by Dr. Klein,

stated, “The concentration of [p]ropofol in a person’s blood is not expected to

decrease after death.” But Dr. Anderson’s statement was not inconsistent with

Dr. Klein’s report and testimony, in which he said the concentration of propofol in

a person’s blood would dissipate rapidly after injection and before death.

So propofol eliminates very quickly, within minutes. So it’s possible
that his level could have been quite a bit higher at the time of injection
and then he becomes what’s called hypoxic, meaning not enough
oxygen, because he’s not breathing enough. So that would give time
for that drug to be eliminated and then he would die several minutes
or a period of time after that injection. . . .

(Emphasis added.)

Next, Barbara questions how she could have overpowered Tim and injected

the propofol into his veins. Dr. Klein offered theories as to how Tim could have

been rendered unconscious before the propofol injection, including an injection of

insulin or a sedative drug. Ultimately the State did not have evidence of any other

substance in Tim’s blood that could have rendered him unconscious, although

Dr. Klein said insulin or sedative drugs could have dissipated from Tim’s blood by

the time he ordered toxicology testing. In other words, he believed the lack of

insulin or sedatives in Tim’s blood did not mean they were never present.

Other pieces of evidence bolstered the State’s case. Together with

Dr. Klein’s testimony on the autopsy and toxicology test results, the State raised

Barbara’s financial motive to kill Tim because of money problems and a crumbling
22

marriage. See State v. Blair, 347 N.W.2d 416, 421 (1984) (deliberation and

premeditation can be shown by evidence of a motive). Further, Barbara’s timeline

of events on the morning of May 5 was inconsistent; neighbors saw her vehicle at

the house as late as 7:22 a.m., contradicting her claim that she left by or shortly

after 7:00 a.m. Because the fire was raging by 7:33 a.m., if Barbara left later than

she offered, that left only minutes for the injection of propofol and the start of the

fire to occur.

Pointing to reasonable human behavior, the State discussed Barbara’s

post-fire actions. After learning of the fire, and knowing Tim was ill or asleep in the

home, Barbara never called to check on him. Barbara never explained why she

did not even attempt to contact Tim. Lastly, friends, coworkers, and family,

including her own son, testified about Barbara’s strange lack of emotion after Tim’s

death and found it suspicious.

Ultimately, the jury concluded Tim was murdered and that Barbara was the

killer. We find the evidence, viewed in the light most favorable to the State, is

substantial and more than enough to “convince a rational trier of fact that the

defendant is guilty beyond a reasonable doubt.” Robinson, 859 N.W.2d at 467.

We affirm Barbara’s conviction for first-degree murder.

Barbara also challenges her conviction for first-degree arson. Arson is

statutorily defined as:

Causing a fire or explosion, or placing any burning or combustible
material, or any incendiary or explosive device or material, in or near
any property with the intent to destroy or damage such property, or
with the knowledge that such property will probably be destroyed or
damaged . . . whether or not any such property is actually destroyed
or damaged.
23

Iowa Code § 712.1. Arson in the first degree occurs “when the presence of one or

more persons can be reasonably anticipated in or near the property which is the

subject of the arson . . . .” Id. § 712.2. Here, Barbara again presents the candle

theory. As we discussed above, her theory that a candle found on the left side of

the master bedroom was the cause and origin of the fire was rejected and refuted

by Special Agent Linkletter, an expert in fire investigations. He concluded the fire

originated on the right side of the bed based on burn patterns and was caused

intentionally by some sort of direct flame on the bedding. This matches the

testimony of Assistant Chief Milburn, the first state-certified fire investigator on the

scene who contacted Special Agent Linkletter after noting multiple “red flags” in

the Pasa home, including smoke detectors rendered inoperable. Viewing the

evidence in the light most favorable to the State, we find substantial evidence

supported the jury’s finding that Barbara set the fire and is guilty of first-degree

arson. We affirm her convictions.

B. Weight of the Evidence.

Barbara next claims the district court abused its discretion denying her

motion for new trial, arguing the jury verdict is contrary to the weight of the

evidence. “Iowa Rule of Criminal Procedure 2.24(2)(b)(6) [(2019)] permits a district

court to grant a motion for new trial when a verdict is contrary to the weight of the

evidence.” State v. Ary, 877 N.W.2d 686, 706 (Iowa 2016). “A verdict is contrary

to the weight of the evidence only when ‘a greater amount of credible evidence

supports one side of an issue or cause than the other.’” Id. (citation omitted). The

analysis is broader than the sufficiency-of-the-evidence analysis “in that it involves

questions of credibility and refers to a determination that more credible evidence
24

supports one side than the other.” State v. Nitcher, 720 N.W.2d 547, 559 (Iowa

2006). Yet it is “also more stringent than the sufficiency of the evidence standard

in that it allows the court to grant a motion for new trial only if more evidence

supports the alternative verdict as opposed to the verdict rendered.” Ary, 877

N.W.2d at 706. “[A] district court may invoke its power to grant a new trial on the

ground the verdict was contrary to the weight of the evidence only in the

extraordinary case in which the evidence preponderates heavily against the verdict

rendered.” Id.

In support of her claim the jury verdict was contrary to the weight of the

evidence, Barbara offers the same arguments she makes in her sufficiency-of-the-

evidence claim. For the same reasons we found her arguments on the sufficiency

of the evidence claim unconvincing, we reject her weight-of-the-evidence claim.

We find the district court did not abuse its substantial discretion in denying her

motion for a new trial. The district court could, and did, find the greater amount of

credible evidence weighed heavily in favor of the jury’s conclusion that Barbara,

having malice aforethought, did willfully, deliberately, and with premeditation kill

her husband, Tim. Similarly, the greater amount of credible evidence supports the

jury’s conclusion that the fire at the Pasa home was set intentionally by Barbara,

the only person other than Tim in the house the morning of May 5. This is not a

rare and “extraordinary case where the evidence preponderates heavily against

the verdict.” State v. Shanahan, 712 N.W.2d 121, 135 (Iowa 2006).

C. Sentencing Error.

Barbara claims the district court erred in sentencing her to a mandatory

minimum for first-degree arson requiring her to serve 70% of her twenty-five-year
25

sentence before becoming eligible for work release or parole under Iowa Code

section 902.12(5). Section 902.12(5) provides:

A person serving a sentence for a conviction for arson in the
first degree in violation of section 712.2 that occurs on or after July
1, 2019, shall be denied parole or work release until the person has
served between one-half and seven-tenths of the maximum term of
the person’s sentence as determined under section 901.11,
subsection 5.

(Emphasis added.) The State agrees that Barbara did not commit an arson on or

after July 1, 2019, so the statute does not apply to her conduct. So to avoid an ex

post facto application, the State urges, “The case should be remanded for entrance

of an order eliminating the mandatory minimum. No new sentencing hearing is

necessary.” We remand with directions to eliminate the mandatory minimum

portion of the sentencing order. See State v. Smith-Berry, No. 19-0839, 2020 WL

2988410, at *4 (Iowa Ct. App. June 3, 2020); State v. Brown, No. 18-1988, 2020

WL 1879686, at *6–7 (Iowa Ct. App. Apr. 15, 2020).

D. Ineffective-Assistance-of-Counsel Claims.

Both Barbara and the State agree on this point—the evidence is not

sufficient to address Barbara’s ineffective-assistance-of-counsel claims. We agree

and preserve these claims for a PCR proceeding. See State v. Zacarias, No. 19-

0838, 2021 WL 1583820, at *10 (Iowa, Apr. 23, 2021) (preserving defendant’s

ineffective-assistance-of-counsel claims for a PCR proceeding to allow an

adequate record to be made and allow the attorney the opportunity to respond to

the claims).

IV. Conclusion.

We affirm Barbara’s convictions for first-degree murder and first-degree
26

arson. We remand only for entrance of an order eliminating the mandatory

minimum portion of her sentence requiring her to serve 70% of her arson sentence

before eligibility for parole or work release. We preserve Barbara’s ineffective-

assistance-of-counsel claims for PCR proceedings.

CONVICTIONS AFFIRMED; SENTENCES AFFIRMED IN PART,

REVERSED IN PART, AND REMANDED.