State of Iowa v. William Edgar Burton, III

IN THE COURT OF APPEALS OF IOWA

No. 19-1754
Filed June 16, 2021

STATE OF IOWA,
Plaintiff-Appellee,

vs.

WILLIAM EDGAR BURTON, III,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, William P. Kelly, Judge.

William Burton III appeals his conviction for second-degree murder.

AFFIRMED.

Jamie Hunter of Dickey, Campbell & Sahag Law Firm, PLC, Des Moines,

for appellant.

Thomas J. Miller, Attorney General, and Zachary Miller, Assistant Attorney

General, for appellee.

Heard by Bower, C.J., and Tabor and Ahlers, JJ.
2

BOWER, Chief Judge.

William Burton shot and killed Cory Channon in Channon’s home. Burton

was charged with first-degree murder and convicted of the lesser-included offense

of second-degree murder following a jury trial. On appeal, Burton contends the

trial court erred in denying his motion for mistrial and abused its discretion in its

rulings on the evidence, denying his motion for judgment of acquittal, and

improperly instructing the jury that malice aforethought may be inferred from the

use of a dangerous weapon. We affirm.

I. Background Facts and Proceedings.

On January 9, 2018, Burton demanded Channon return a handgun he

claimed Channon had stolen from him. Channon refused. Over several hours, the

two exchanged text messages that became increasingly profane and threatening.

Although Burton deleted all text messages from his phone, officers were able to

retrieve the exchange from Channon’s phone. Burton’s texts included: “the way

your [sic] doing this is not going to end up very well for either of us” and “No you

fucked up bitch I’ll shoot you from half a mile away.”

At about 9:45 p.m., Burton’s girlfriend, Crystal Purdy, started to send

messages to Channon, falsely claiming Burton had thrown her out of the house

and complaining about Burton. Channon invited her to come to his place. At about

11:00 p.m., Purdy messaged, “I’m almost there I’ll be there in a second” and asked

where she could park so Burton couldn’t see her vehicle.
3

In the meantime, Burton retrieved another handgun, and he, Purdy, and

James Dawson1 (their neighbor) drove to Channon’s residence. On the way over,

Burton told Purdy “[s]omeone is going to die tonight.” Purdy dropped Burton and

Dawson off a few houses away and then drove to Channon’s residence. Channon

met her outside and invited her inside his apartment.2 The two talked and smoked

a cigarette. Burton entered the apartment, slamming the screen door shut. He

had a handgun at his side and demanded Channon return his handgun. As

Channon began to stand up, Burton raised his handgun and with its laser sight

activated shot Channon. Channon fell back onto the couch. Burton, Purdy, and

Dawson then drove away.

Channon’s neighbors heard yelling in Channon’s apartment and the gun

shot. They called 911. Officers arrived minutes later and found Channon

unresponsive.

Forty-five minutes after the shooting, Burton called police and reported he

had been involved in a shooting. He said he would await officers in the parking lot

of a convenience store. When Burton was picked up, he told officers he left the

gun involved on a chair in his apartment.

Burton was taken into custody and was interviewed by two detectives.

Burton told them Channon stole his handgun so he went to retrieve it. He said

Purdy went to Channon’s to try to calm Channon and Channon would not know

1Purdy testified Dawson was along “[t]o be muscle in case anything went bad.”
2Purdy stated this was not the original plan, which was “he was going to walk me
up to the apartment, and then . . . [Burton] and [Dawson] were going to come up
and talk to him about the gun.”
4

Burton was coming. Burton said when he got to Channon’s, Channon nodded him

in. Burton asked for his gun. When Channon got up, Burton said he feared for his

life so he shot Channon. He did not call for help afterward because he panicked.

When asked about the text messages he sent Channon, Burton first said his phone

deleted texts every hour. Later, he admitted he had deleted them.

Following an autopsy, a forensic pathologist determined the bullet fired from

Burton’s gun traveled through Channon’s left shoulder, fractured the scapula, went

through the brachial plexus, the left upper lobe of the lung, the pericardial sac,

pulmonary artery, right atrium, the aorta, the liver, and then was stopped by the

skin below the rib cage. Forensic testing showed Burton fired from above

Channon, indicating that Channon was bent over at the time.

Burton and Purdy were both charged with murder. Purdy entered into a

plea agreement and testified at Burton’s trial.

Burton asserted a justification defense,3 arguing Iowa’s recently amended

Iowa Code section 704.1 offered additional protection.4 He claimed he had a

permit to carry a concealed weapon and, when Channon “charged” at him, he

reasonably feared for his life and shot Channon in self-defense.

3 Iowa Code section 704.3 (2018) provides: “A person is justified in the use of
reasonable force when the person reasonably believes that such force is
necessary to defend oneself or another from any actual or imminent use of
unlawful force.”
4 Section 704.1 provides, “A person who is not engaged in illegal activity has no

duty to retreat from any place where the person is lawfully present before using
force.”
5

Two central issues at trial were whether Burton was “a person who was not

engaged in illegal activity” and if his use of force was justified. Before opening

statements, the parties discussed motions in limine. The State informed the court:

But if the defendant relies on this permit as some type of explanation
for having these guns, I’ve shared with the defense what information
I’ve gleaned regarding the defendant’s criminal history. I think that
raises a whole lot of red flags.
Just briefly, to the court, it would suggest that the defendant,
in four applications for permits to acquire and his permit to carry
concealed weapons, committed perjury and lied and said that he
wasn’t an active drug user.

Burton’s interview with police was played for the jury during trial. In the

interview, Burton was asked if he had used methamphetamine the morning before

the shooting. He denied using that day but stated he had been around meth at

Channon’s earlier in the day. When asked if police would find any drugs or

paraphernalia when they searched Burton’s home, he responded “everything

should be thrown away” but acknowledged there was “probably going to be

paraphernalia there.”

Purdy testified her relationship with Burton involved methamphetamine use.

She testified she used methamphetamine earlier in the day on January 9. She

stated she had met Channon only three times before the shooting (the first time

was about four days before), and she expressed concern to Burton because “I

heard bad things about him, and asked [Burton] to get [Channon] out of the house.”

She testified the next time she met Channon there was also a woman at the house

whose name she could not remember; Purdy stated she did not like that woman

and asked Burton to get her out of the house. Purdy testified Burton had Channon

give the woman a ride home in Burton’s truck. The third time she met Channon
6

was at his apartment on January 9 in the chain of events resulting in Channon’s

death.

Purdy stated that before going to Channon’s apartment, Burton had gone

to the basement, presumably to get a gun. She also testified without objection:

Q. Is there any other reason that Billy went down into the
basement other than to do something with his gun? A. Yes, that’s
where he got high.
Q. Okay. Was he down in the basement long enough to get
high before you left the house? A. Yes.
Q. Okay. So he comes up, you guys get in the truck, you drive
over there, and Billy says, “Someone is going to die tonight.” Do you
drop them off as you guys had planned? A. Yes.

Purdy testified she entered Channon’s apartment and they smoked a

cigarette and talked.

Q. And as you’re sitting on that couch facing Cory—I should
ask: Are you facing Cory? A. Yes.
Q. So how are you positioned to the door? A. My back is
towards the door.
Q. How is Cory positioned to the door? A. Right in front of the
door.
Q. So as you’re sitting there talking, at some point does Billy
finally get there? A. Yes.
Q. And how do you know Billy gets there? A. Well, I heard the
screen door—the screen door slam shut, and I heard Billy asked
Cory where his gun was.
....
Q. And how does Cory respond? A. He says, “I don’t have
your gun, Billy.”
....
Q. As far as you know, Billy still believes that Cory has that
gun? A. Yes.
Q. And as far as you know, Cory stole the gun? A. Yes.
Q. And what other conversation do you hear, or what else do
you hear Billy say? A. He asked where his gun was, and I turned
around and Billy had a gun. And Cory says, “What are you going to
do? Shoot me?”
Q. Where was Billy’s gun? You said, “I turned around and
looked and Billy had a gun.” Where was it? A. In front of him.
Q. Was he pointing it at somebody? A. Yeah.
Q. Who was he pointing at? A. Cory.
7

Q. And Cory says, “What are you going to do? Shoot me?”
A. Yes.
Q. What does Billy do? A. Shot him.

The State called Mikayla Croy, but Burton moved to prevent her from

testifying, asserting her testimony would consist of prior-bad-acts evidence and

was unduly prejudicial and irrelevant. The State responded, in part:

[PROSECUTOR]: . . . Had there not been a discussion about
the permit, like I brought to . . . everyone’s attention before opening
statements, we would not be having this conversation.
The defendant is the one that’s trying to bolster his credibility
and character by referencing a concealed-carry permit, period. He
obtained it in a fraudulent way. He lied and committed perjury. I
have the documents here.
This is the bed the defendant made. This should be no
surprise to him now. That’s why we spent such a long time making
a record with him before opening statements.
I can see how it would factor into the stand-your-ground
argument regarding whether or not he was doing—committing an
illegal act, which would—then stand your ground wouldn’t apply to
him.
THE COURT: Well, that’s why I thought we’re going to have
that as a fact question for the jury, because I do think when we have
704.3, “A person who is not engaged in illegal activity has no duty to
retreat from any place where the person is lawfully present before
using force.”
And I thought that’s what you were getting at in terms of—if
he’s under the influence of a controlled substance, with a firearm, in
somebody’s house, I thought that was the attack on the justification
defense.
[PROSECUTOR]: Well, it can be that too, Your Honor. There
are multiple crimes he was committing before he used illegal force
and so, yes, there are fact questions for the jury.
THE COURT: [Defense counsel], once again, I will give you
the last comment.
[DEFENSE COUNSEL]: And, Your Honor, whether he was
there legally or not, that’s a fact question. I don’t think there’s any
doubt about that. That has to go to the jury.
THE COURT: So would his meth use, then, impact whether
he was there legally?
[DEFENSE COUNSEL]: I don’t know. That’s a question for
the jury, okay. If they say no, the fact that you used meth means you
didn’t have a permit to carry or that you were there illegally is for the
jury, Your Honor.
8

THE COURT: Very good. Will the State call their next witness,
please.

Croy testified Burton had let her stay in his house for a few weeks prior to

Channon’s death because she was homeless. She stated Burton’s house was a

“trap house,”5 she used methamphetamine at Burton’s house with Burton, and she

knew Channon because he came to Burton’s house three times and “we all used

[meth] together.” She was not concerned for her safety in Channon’s presence,

and when he used meth he “talked faster and talked a lot more” but otherwise his

demeanor changed little. She stated Burton was “very aggressive” when he used.

She also testified she saw Burton with a gun and “he would always show it off and

wave it around to people.” The prosecutor asked, “Now would he be doing this

while he was using methamphetamine?” Croy responded, “Yes, when he was

under the influence of it.”

Croy testified the last day she was at Burton’s house was the day before

Channon died. She stated she and Burton had left the house together and when

they returned Purdy and Channon were there. Purdy “was running around

screaming at me, telling me that I needed to get out.” She testified Burton told

Channon to take his truck and give her a ride. Channon drove Croy to his house.

Burton elected to testify in his own defense, and his counsel informed the

court they intended to explore Channon’s reputation for violence and Burton’s

understanding of Channon’s violent nature. Prior to Burton’s testimony, the court

ruled:

5According to Croy, a trap house refers to “a place where people go to use and
buy drugs.”
9

THE COURT: All right. So all of my rulings so far have been
in an attempt to comply with State v. Williams, which is an Iowa
Supreme Court case, 929 N.W.2d 621 [(2019)].
In that case they were dealing with character evidence. And
my rulings have dealt with the idea that because of the defendant’s
prior relationship with the victim, because of their drug use together,
because of their knowledge of each other, I was allowing my
evidentiary rulings to reflect the State v. Williams’ rationale, that “a
defendant asserting self-defense or justification may not prove the
victim’s aggressive or violent character by specific conduct of the
victim unless the conduct was previously known to the defendant.”
....
The hearsay rules just don’t really apply in this case, I think,
because [Burton’s] knowledge of [Channon’s] reputation goes
towards his reasonable belief in using force. So the fact that he knew
he was in prison, I don’t think implies a violent or aggressive nature.
In fact, we know that he was in prison for drug use. So maybe we
need to ask again: What are the facts that the defendant would
discuss in regards to whether the victim was violent or aggressive?
And I think the State should be allowed to ask on that.
Does that make sense? Because the whole reason we’re
talking about this, is how we apply stand your ground, which
eliminates any duty to retreat before using force if one is not engaged
in illegal activity.
And I think that’s why you talked about the permit being
important. I think that’s why the State probably gets to talk about—
that using that permit might not have been legal if he was in fact using
or not in compliance with federal law as we’ve discussed.

Burton testified about his knowledge of firearms and his permit to carry. He

testified he “always carried” a gun on his person. Burton testified he had suffered

a back injury at work and was receiving disability benefits and takes medication for

back pain. He stated he had known Channon for many years and Channon knew

of his back injury. Burton testified he was five feet, five inches tall and “severely

overweight.” Burton denied being a regular user of methamphetamine but

admitted he “used a few times.” He testified:

Q. What do you do next after you are out of the truck? A. Me
and James, we start walking towards the house to see if Crystal got
it. I get up to the screen door and the main door is open. The screen
10

door is a glass door. Crystal is sitting on the couch, and Cory is
sitting on the love seat, facing me.
Q. What happens next? A. He nods and tells me to come in.
Q. What do you mean he nods and he tells you to come in?
A. Well, he recognized that I was there and nodding, meaning come
in.
Q. So tell the jury how he nods you in. A. (The witness
complies.)
Q. What happens next? A. I walk through the screen door and
he says, “What up, Billy?” A. I said, “Cory, just give me back my gun
and everything is fine. We’ll swatch everything and be all good
again.”
Q. What happens next? A. He scoots to the edge of the
couch, to the edge of the love seat. And at this point I—I’m scared.
So I click on the laser and show that I have force. And he says,
“What are you doing with a pistol?” and lunges at me. At this point—
at this point I draw up and it goes off.
Q. What goes off? A. The gun.
Q. What happens next? A. He stands up and goes over to the
couch. He sits back down on the couch and says, “Don’t shoot.
Don’t shoot.” And I—Crystal is running out of the house at this point.
And I yell at him, “Damn it, Cory,” and then I followed Crystal.
Q. You leave? A. I leave.
Q. What’s your state of mind? A. I’m freaking out.
Q. What did you think Cory was doing when he came off the
couch? A. I thought he was coming to kill me.
Q. How did he come off the couch? A. With his left shoulder
and head down, coming straight at me.

Burton explained, “His whole demeanor said he had a gun.”

At the close of the State’s case and the defense, Burton moved for judgment

of acquittal, arguing the State failed to prove malice aforethought and lack of

justification. The district court denied the motions.

Burton objected to the court’s proposed instruction allowing the inference of

the malice aforethought from his use of a dangerous weapon, arguing the changes

in law means the mere carrying of or using a weapon in self-defense cannot be

used to infer malice. The court rejected the argument and included the instruction.
11

During jury deliberations, the jury foreperson brought a piece of paper to a

court attendant that had been found folded up on a table in the jury room. The

court briefly questioned the jury foreperson about the paper6 outside the presence

of Burton or his attorneys and told her to disregard it.

The court alerted the parties. Burton moved for a mistrial, arguing the paper

amounted to juror misconduct. While the parties and the court discussed what to

do, the jury reached a verdict. Before accepting the verdict, the parties agreed on

questions to ask each juror. One by one, the court questioned each juror in the

presence of all parties. Those questions revealed the jury foreperson had held the

paper up and asked if it belonged to any of the other jurors, the foreperson and a

juror sitting next to her had briefly viewed the paper, and no juror saw Burton’s

name on the paper. The district court denied the motion for mistrial.

The verdict was then received. The jury found Burton guilty of the lesser-

included offense of murder in the second degree. The court sentenced him to an

indeterminate term of fifty years with a thirty-five-year mandatory minimum.7

Burton now appeals. He asserts (1) the court erred in denying his motion

for mistrial based on juror misconduct, (2) the court abused its discretion in

admitting three irrelevant and unduly prejudicial photos of Burton’s home, (3) the

court abused its discretion in allowing Croy to testify, (4) by limiting Burton’s

6 The paper appeared to be related to the criminal charges against and security
measures for those in custody. Burton’s name was the twenty-fifth of twenty-eight
names on one side of the paper; Burton is the thirty-seventh of forty names on the
other side.
7 The sentence was to run consecutive to a ten-year sentence on a conviction for

robbery in the second degree. See State v. Burton, No. 19-1417, 2021 WL
1904650 (Iowa Ct. App. May 12, 2021).
12

testimony about Channon’s violent prior acts, the court denied him the right to

adequately present his defense, (5) there is insufficient evidence to support the

verdict, and (6) the court erred in instructing the jury it could infer malice

aforethought from use of a dangerous weapon.

II. Scope and Standards of Review.

We review the denial of a motion for mistrial for an abuse of discretion.8

State v. Gathercole, 877 N.W.2d 421, 427 (Iowa 2016). So, too, evidentiary rulings

are reviewed for an abuse of discretion. State v. Dessinger, 958 N.W.2d 590, 597

(Iowa 2021) (“District court decisions on whether to admit or exclude evidence are

typically reviewed for an abuse of discretion.”). “An abuse of discretion occurs

when a district court exercises its discretion on grounds or for reasons clearly

untenable or to an extent clearly unreasonable.” State v. Wilson, 878 N.W.2d 203,

210–11 (Iowa 2016).

Constitutional issues are reviewed de novo. Chistensen, 929 N.W.2d at

676.

Challenges to the sufficiency of the evidence supporting a guilty verdict are

reviewed for correction of errors at law. State v. Benson, 919 N.W.2d 237, 241

(Iowa 2018). We will uphold a verdict if supported by substantial evidence. Id.

III. Discussion.

A. Motion for Mistrial.

During jury deliberations, the court convened with the attorneys and the

defendant and made the following record:

8 But see State v. Christensen, 929 N.W.2d 646, 676–77 (Iowa 2019) (discussed
later in this opinion).
13

THE COURT: Shortly after [the jury sent out a question], my
judicial assistant brought a folded-up piece of paper to me that was
provided to her by the jury forewoman.
I opened up the piece of paper, and it is the Polk County Court
List, which would have the inmate’s name, their sex. The heading is
“Jail Cell,” “Deputy,” “Courtroom,” “Type,” and then “Charges &
Notes.”
And it’s a two-sided document. So on page 1 of the first page,
it had, “Mercado Lopez, Hector.” And then on the back side it had
“Allen, Taquan,” T-a-q-u-a-n.
So the juror was standing out in the hallway. I approached
her and asked her where she found it. She said she found the folded
piece of paper on the juror table, that she opened it up to figure out
what it was, if it was evidence. She thought maybe it was an exhibit
list to help them keep things in order.
She looked at it and saw Polk County Court List. And then
she said once she realized it didn’t have anything to do with the case,
she handed it to the judicial assistant.
I asked her if she showed any of the other jurors; she said no.
I asked her if she recognized anybody’s—or if she recognized any
names on the list; she said no. I asked her if she did anything with
the list, and she said no and she refolded it back up and gave it to
the judicial assistant.
I then told her—I said, “It is not evidence. It wasn’t supposed
to be in your jury room. And I’m just telling you: Disregard, don’t talk
about it with any of the other jurors. It’s not evidence, and it’s not
part of anything you need to be considering, and thanks for bringing
it our attention.” So that’s the way I left it with the juror.
Then I scanned it and sent it to counsel.

The court asked the court assistant to come in and explain who had brought

the paper to her. The assistant stated the jury foreperson came to her desk with

the paper:

It was folded up. She said something along the lines of: I found this,
or we found this on the table and weren’t sure what it was and just
thought that I should bring it to you.
[PROSECUTOR]: So did—I understand the initial start of the
conversation is probably pretty innocuous. Do you remember if she
said “I” or “we”?
[JUDICIAL ASSISTANT]: So she then, after that, kind of
clarified and said, “I saw it there yesterday. I thought it was [another
juror]’s,” who sits next to her. Then she said something about, “I
thought it may have something to do with our exhibit list.”
14

But it sounds like at that time she didn’t do anything with it.
Nobody touched it. Nobody had unfolded it until today when she kind
of noticed it again and thought maybe it had something to do with the
exhibits, because they were getting them all out of order.
So at that time I think she thought, maybe, to look at it. She
first asked [the other juror] if it was his. He said no. She opened it,
said she saw what it said right at the top, asked if it was anybody’s.
Did not pass it around or anything. Said out loud just what it said at
the top, and then someone apparently said to her, “I don’t think we’re
supposed to have this. You need to take it out of the room.” And
that’s when she brought it to me.

The prosecutor asked the judicial assistant if the jury foreperson had said

what she had seen. The judicial assistant replied, “She said something about ‘Polk

County.’ And then I believe Judge Kelly said, “Did you see my name on there?”

And she said, ‘I saw the name Kelly, I think.’”

After further discussion, it was learned a county deputy had taken a break

in the jury room on August 8 and had accidentally left the folded paper in the jury

room that day. It was turned in by the jury foreperson on August 14. Further

discussion was had as to whether a remedial instruction should be given to the

jurors. The parties viewed the document. The prosecutor asserted,

And as I review the document, Judge, I don’t recall there being any—
there’s no highlights. There’s no significant information about Mr.
Burton, the other person pertinent to this case, that’s listed on there,
as Crystal Purdy.
So it’s the State’s position, Judge, that with the information
that we’ve been given, it is not prejudicial. It is not overly prejudicial.
It is not—I mean, it’s an unfortunate situation, but I don’t believe it
affects the course of the jury deliberations.

The defense disagreed and moved for a mistrial, stating:

Nobody wants to do this case again. The condition of that document
makes it unclear to me which way it was originally folded, whether
it’s been folded in different directions, or not.
I believe next to Mr. Burton’s name—if I may take a look at it
again. I believe Mr. Burton’s name appears on both sides of the
document. In the furthest cell of one side, it says, “"X2 Murder 1st,
15

K/S Purdy, Crystal.” It looks like it’s times two, murder. It looks like
he’s facing two murder charges. I mean, possibly.
We go to great lengths, Your Honor, to make sure the jury
doesn’t know that my client is in custody. And this court list also says
on it, “U.S. Marshals,” not far below his name.
I think we have the concern that this could contaminate the
members of the jury, whoever saw it, at least the jury foreperson.
Whether she recognized in the moment when she was seeing it or
comes to recognize it later, I think we’ve all had the experience where
we see something and later it sort of flips a switch in our brain and
we realize what we saw that we didn’t take in initially, or didn’t
register.
I think it’s too big of a risk to take. And there is significant
prejudice to my client. We try very hard to control what the jurors are
exposed to.
And by pure accident—and nobody is suggesting it’s anything
else—I think we’re in a situation where we have failed in that regard
and there’s too much risk to Mr. Burton.

Later, defense counsel asked, “Your Honor, are we in a procedural difficulty

with the court having spoken with the juror?” The parties discussed whether to

question the jurors but before reaching a resolution the jury returned a verdict.

Prior to accepting the verdict, the court and counsel agreed to a number of

questions to ask each juror individually:

Number one: “Since you’ve been in deliberations, did you notice a
piece of paper in the room that did not belong?” If yes, “Are you
aware of any of the contents of the document?” If yes, “Did you hear
anyone else comment on the document and what, if anything, was
said?” And “Whether anything they saw or heard about the paper
affected their ability to base a verdict on the law and the instructions
and the evidence at trial?”

After questioning the jurors, the court ruled:

THE COURT: The motion before the court is a motion for
mistrial based on the fact that a Polk County Court List, listing the
inmates, was left in the jury room.
The defense has argued that an impartial verdict cannot be
reached because this document that was left in the jury room would
be unfairly prejudicial to the defendant.
16

In reviewing the answers of the jurors, it appears that only the
forewoman actually even had an opportunity to potentially look at the
contents of the Polk County Court List.
When asked if she noticed anything about the content of the
document or whether she was aware of any of that content that
related to our trial, she did mention that she might have saw the
“Kelly” name on there. She did not mention seeing Mr. Burton’s.
The other juror, who she asked if it was his, said it wasn’t his.
And he noticed it—or he said it wasn’t his because he didn’t bring it
in, and saw it when he walked in. And I don’t believe he noticed any
of the content of the document.
After talking to all [twelve] jurors, it appears that nothing that
they saw or heard about that Polk County Court List impacted their
ability to base a verdict on the law that they were given in the
instructions and the evidence that they received in trial.
Having considered the defense’s complaints in regards to the
Polk County Court List that was left in the jury room and the possible
effect on the jury’s ability to return an impartial verdict, this court finds
that leaving that piece of paper in the room, and the way the jurors
handled that piece of paper, does not rise to the level of a denial of
a fair trial for the defendant.
We could tell from the amount of jury questions that they were
asking, that this jury appeared to take the instructions very seriously,
were trying to read them quite carefully.
I think they did the right thing once they determined that this
document was not a piece of evidence and did not act as a list for
the orderly return of the exhibits.
It appears they got it to the judicial assistant, who then got it
to the court, and then it was given to the attorneys as soon as the
court received it.
I also think there’s enough protections for the defendant,
based on the jury instructions that were given to this group,
specifically, number one, where they are to determine the evidence
based—I’m sorry. They are to determine the defendant’s guilt or
innocence from the evidence and the law of these instructions.
Instruction No. 4, that talks about them making very important
decisions and that they return a just verdict based solely on the
evidence, your reason and common sense, and these instructions.
Your sole duty is to find the truth and to do justice.
Also, in regards to Instruction No. 7, that the presumption of
innocence requires the jury to put aside all suspicion which might
arise from the arrest, charge, or the present situation of the
defendant.
Instruction No. 8 specifically tells them that they are to
determine the guilt—or determine the defendant’s guilt or not guilty
from the evidence and the law in these instructions.
17

Based on the fact that I believe the jury has followed the
instructions, immediately and promptly got rid of the document that
was not evidence, and the fact that based on their answers that piece
of paper did not impact their verdict, I find that the leaving of that
piece of paper in the jury room does not rise to the level of a denial
of a fair trial for Mr. Burton and, accordingly, the motion for mistrial is
denied.

On appeal, Burton contends he was denied a fair trial before an impartial

jury. He quotes our supreme court in a recent case: “The partiality of one juror due

to extraneous influence is sufficient to deny the defendant the constitutional

guarantee of an impartial trial.” See Christensen, 929 N.W.2d at 661. The State

asserts Burton made no constitutional challenge in his motion for mistrial and thus

we are limited to reviewing whether a new trial is warranted under the Iowa Rules

of Criminal Procedure—rule 2.24(2)(b)(2), which allows the court to grant a new

trial “[w]hen the jury has received any evidence, paper or document out of court

not authorized by the court,” or rule 2.24(2)(b)(9), which allows a new trial “[w]hen

from any other cause the defendant has not received a fair and impartial trial.”

The motion for mistrial raised the general issue of an impartial jury—no rule

or constitutional violation was specified. We recognize our supreme court has

recently stated there is a question of the proper standard of review “[w]hen a party

seeks a mistrial under our rules designed to ensure a fair trial, but does not mention

any provision of the Iowa or United States Constitution.” Christensen, 929 N.W.2d

at 676. Like the court in Christensen, however, “we generally agree with the fact-

finding of the district court. Therefore, the result in this case does not depend on

the standard of review.” See id. at 677–78.

We thus determine if Burton has shown “a reasonable probability that the

verdict of the jury would have been different if the extraneous influence did not
18

reach the jury in this case.” Id. at 679. We conclude Burton has failed to make

such a showing. As noted by the district court, only the foreperson had a chance

to see the court list, and she did not see Burton’s name on it. No other juror saw

the contents of the court list or Burton’s name.

Burton maintains in denying his motion for mistrial, the court improperly

relied on the jurors’ testimony that they were able to return an impartial verdict.

We simply note that the parties agreed to the questions the jurors were to be

asked. The defense may not now complain those questions were improper.

In any event, we are not convinced the court relied upon the jurors’

response to the question “Whether anything they saw or heard about the paper

affected their ability to base a verdict on the law and the instructions and the

evidence at trial?” Rather, the court considered objective facts about who saw

what and who said what to whom. See id. at 679 (“What can be considered is

objective facts—who said what to whom and when and what specifically was

injected into the jury discussion. But juror assessments about the impact of the

improper extraneous influence are off limits.”); see also Gathercole, 877 N.W.2d

at 433 (“Although the district court did not abuse its discretion in this case, we

encourage courts to resolve doubts about whether information published midtrial

requires a poll requested by a party in favor of granting a poll. Although one court

has suggested a jury poll during a trial might be less than a perfect means of

discerning the nature and extent of prejudice, if any, resulting from factually

inaccurate midtrial publicity, ‘it at least gives some suggestion as to whether the

verdict was tainted with improper consideration and improper influences.’”

(citations omitted)).
19

With respect to his complaint about the court’s ex parte questioning of the

forewoman,9 we are not persuaded defense counsel’s statement—“Your Honor,

are we in a procedural difficulty with the court having spoken with the juror?”—is

sufficient to preserve any claim of error for our review. See Meier v Senecaut, 641

N.W.2d 532, 537 (Iowa 2002) (“It is a fundamental doctrine of appellate review that

issues must ordinarily be both raised and decided by the district court before we

will decide them on appeal.”); see also Taft v. Iowa Dist. Ct., 828 N.W.2d 309, 322

(Iowa 2013) (“Even issues implicating constitutional rights must be presented to

and ruled upon by the district court in order to preserve error for appeal.”).

B. Admission of Photographs.

Burton contends the court abused its discretion in admitting photographs in

State’s exhibits 47, 54, and 55 because they were unrelated to the shooting. He

also asserts one photo including a sign in his home that read “Fuck Cops” was

unduly prejudicial. He contends prejudice arising from exhibit 47, which included

the sign’s “inflammatory language,” far outweighed any relevance. As for exhibits

54 and 55, he contends the photos showing his messy basement and including a

video surveillance monitor amidst the tools and wires were the State’s “attempt to

make him look ‘odd’” and constituted improper character evidence. The State

9 Burton asserts:
“[P]rivate conversations between the trial court and jurors are
universally condemned.” State v. Cowman, 212 N.W.2d 420, 424
(Iowa 1973). The court reporter did not make a record of the court’s
conversation with the foreperson that took place outside the
presence of Burton and his counsel. A defendant has a
constitutionally protected right to be present whenever the court
communicates with a juror as to his impartiality. State v. Blackwell,
238 N.W.2d 131, 134–36 (Iowa 1976).
20

asserts the photos show the view inside Burton’s house when the police entered

and attempted to find the gun they were sent to retrieve and the State is allowed

to set the scene.

Relevant evidence is admissible. See Iowa R. Evid. 5.402. Evidence is

relevant if “it has any tendency to make a fact [of consequence] more or less

probable than it would be without the evidence.” Iowa R. Evid. 5.401. We are hard

pressed to find the photographs were relevant to any issue in this case. Police

found Burton’s gun where he told them they would find it in his home. The shooting

did not occur in Burton’s home. Ballistics matched Burton’s gun to the shot that

killed Channon. Irrelevant evidence is not admissible.

However, especially in light of the overwhelming evidence of Burton’s guilt,

we conclude any error in admitting the photographs did not prejudice the

defendant. See State v. Neiderbach, 837 N.W.2d 180, 205 (Iowa 2013)

(“Nevertheless, ‘[w]e only find reversible error when the admission of improper

evidence affects a party’s substantial rights.’” (citation omitted)); State v. Williams,

574 N.W.2d 293, 298 (Iowa 1998) (“Not all errors require reversal. To warrant

reversal the error must have prejudiced the defendant.”); State v. Traywick, 468

N.W.2d 452, 454–55 (Iowa 1991) (“When an alleged error is not of constitutional

magnitude, ‘the test of prejudice [for harmless error purposes] is whether it

sufficiently appears that the rights of the complaining party have been injuriously

affected or that the party has suffered a miscarriage of justice.’” (alteration in

original) (citation omitted)).

Burton admits going armed to Channon’s home to retrieve another

handgun. He was accompanied by Dawson, whom Purdy described as there to
21

provide “muscle” and whose presence Burton explained in his statement to police

was because Burton “didn’t want trouble.” Burton walked into Channon’s

apartment with his gun out and visible to let Channon know he “ha[d] force.” As

Channon rose from a seated position, Burton shot him. The admission of the

photographs here does not require a new trial in this case.

C. Croy’s Testimony.

Burton contends the court abused its discretion by allowing Croy to testify,

asserting

Croy was not around for the day of the shooting—she had moved out
the day prior because Crystal Purdy had wanted her gone. Burton’s
drug use, especially the manner of ingestion, was not probative as
to whether Burton was defending himself at the home of Cory
Channon. Burton testified that he did not use methamphetamine on
January 9, the day of the shooting, and there was no evidence that
he had used that day.

He contends “[h]er testimony was rife with prior bad acts that had little probative

value which was significantly outweighed by its prejudicial effect.” We will not

address this broad-ranging claim of error. The district court did not allow a standing

objection to Croy’s testimony. As a court of review, we are confined to those issues

properly raised and decided by the trial court. See Senecaut, 641 N.W.2d at 537.

Here, the defense objected to Croy’s testimony three times. The first was

when Croy described that living at Burton’s house “was kind of crazy. It was a trap

house, so . . . .” The next objection came when the State asked Croy, “How

frequently would you ingest methamphetamine?” and Croy responded, “Multiple

times a day.” Finally, the third objection came when the State asked, “What was

Mr. Burton like when he was under the influence of methamphetamine?” Croy

answered, “Aggressive.”
22

Our supreme court has quite recently outlined the general principles of prior-

bad-acts evidence. State v. Goodson, 958 N.W.2d 791, 799–800 (Iowa 2021).

The admission of the evidence is governed by Iowa Rule of Evidence
5.404(b)(1). Under the rule, “[e]vidence of a crime, wrong, or other
act is not admissible to prove a person’s character in order to show
that on a particular occasion the person acted in accordance with the
character.” The rule further provides, however, that prior acts
“evidence may be admissible for another purpose such as proving
motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident.” Id. r. 5.404(b)(2).
We have analyzed the admissibility of prior acts evidence
using a three-step approach. In [State v.] Richards, we summarized
the three-step approach:
(1) “the evidence must be relevant and material to a
legitimate issue in the case other than a general
propensity to commit wrongful acts”; (2) “there must be
clear proof the individual against whom the evidence is
offered committed the bad act or crime”; and (3) if the
first two prongs are satisfied, “the court must then
decide if [the evidence’s] probative value is
substantially outweighed by the danger of unfair
prejudice to the defendant.”
879 N.W.2d [140,] 145 [Iowa (2016)] (alteration in original) [(citation
omitted)].

Id. (first alteration in original).

Our discussion must begin with the acknowledgement there was already

admitted evidence about Burton’s and Purdy’s drug use. Burton’s interview with

police discussed drug usage, and he told them he was around methamphetamine

earlier in the day at Channon’s. Purdy testified her lifestyle was “[d]rugs” during

the time leading up to Channon’s death. Purdy testified without objection that she

had Burton were using methamphetamine from 2012 through January 2018 and

that most of their relationship involved drugs. She testified she used drugs on

January 9.
23

Burton asserts, “Even if Croy’s testimony was marginally relevant, it was

cumulative.” Under these circumstances, Burton has not shown how Croy’s

testimony unfairly prejudiced him.

Burton generally asserts Croy’s testimony that Burton was aggressive

under the influence of methamphetamine was “improper character evidence”

because the State offered no evidence Burton was under the influence on the date

of the shooting. The State responds it offered evidence Burton used drugs for

years, including daily in the month before the murder. Purdy testified he was in

the basement—a part of the house where Burton was known to use drugs—long

enough to get high right before leaving to go to Channon's apartment, and Burton

told police he was around meth in the morning the day he killed Channon. The

State contends the evidence was sufficient for the jury to find Burton used

methamphetamine before leaving for Channon’s and his tendency to act

aggressively when using methamphetamine was probative evidence rebutting his

claim he was justified in shooting Channon. We agree the State presented

sufficient evidence Burton’s aggressiveness under the influence was admissible

for the purpose of intent, motive, absence of mistake, or lack of accident. The trial

court was faced with new legislation and carefully considered Burton’s reliance on

his claim he was “[a] person who [was] not engaged in illegal activity” with no duty

to retreat, as well as the State’s burden in showing Burton was not justified in

shooting Channon. We find no abuse of discretion by the trial court here.

D. Inability to Present His Defense.

Burton contends the court erred in not admitting a photograph of a second

bullet removed from Channon’s body during the autopsy or allowing testimony
24

regarding specific instances of Channon’s violence. He asserts he was thereby

denied his constitutional right to present a defense. This constitutional claim was

not made below and is not properly before us.

The question presented is whether the trial court’s evidentiary rulings

violated Iowa Rule of Evidence 5.405(b), which provides:

(a) By reputation or opinion. When evidence of a person’s
character or character trait is admissible, it may be proved by
testimony about the person’s reputation or by testimony in the form
of an opinion. On cross-examination of the character witness, the
court may allow an inquiry into relevant specific instances of the
person’s conduct.
(b) By specific instances of conduct. When a person’s
character or character trait is an essential element of a charge, claim,
or defense, the character or trait may also be proved by relevant
specific instances of the person’s conduct.

“[I]f the accused asserts he or she acted in self-defense, specific instances

of the victim’s conduct may be used to demonstrate his or her violent or turbulent

character.” Williams, 929 N.W.2d at 635 (citation omitted). The text of rule

5.405(b) “allows specific-acts evidence to be used to prove character only when

character is an ‘essential element’ of a charge, claim, or defense.” Id. The

Williams court stated, “Character is not an essential element of justification.” Id. at

636. The Williams court held, “[A] defendant asserting self-defense or justification

may not prove the victim’s aggressive or violent character by specific conduct of

the victim unless the conduct was previously known to the defendant.” Id. That

is, specific acts of a violent character are not admissible unless the victim had

actual knowledge of the other person’s prior acts of violence. Id.; see also Klaes

v. Scholl, 375 N.W.2d 671, 676 (Iowa 1985) (“We believe, however, that in cases

like this one the ‘issue’ in question is not one of character but rather of conduct.
25

We hold therefore the evidence of Scholl’s prior conduct did not go to an essential

element of self-defense as required by rule [5.]405(b) and was not admissible. We

note that we are not dealing with the special situation in which the person claiming

self defense had actual knowledge of the other person’s prior acts of violence. We

intimate no opinion as to that situation.” (internal citations omitted)).

Burton contends to adequately present his defense of justification and why

he feared for his safety in his confrontation with Channon he should have been

allowed to prove Channon had been shot in the past and Burton had heard he had

been physically violent in domestic relationships. Burton asserts the fact Channon

had another bullet in his body at the time of his death proves “Channon had

previously been in a gunfight.” This statement is a non sequitur—being shot

certainly does not equate with being in a gunfight. More fundamentally, Burton did

not know until the autopsy that Channon had been shot previously. The fact had

no bearing on whether Burton reasonably feared for his safety in Channon’s

presence at the time of the shooting.

Burton states he should have been able to testify Channon “bragged” to him

about having a record that included domestic abuse, domestic assault, eluding

police, and a high-speed chase. Burton, however, has no actual knowledge of this

purported conduct: he only states Channon told him. None of the proposed

testimony falls within allowable evidence under Iowa Rules of Evidence 5.405. The

trial court properly analyzed the proposed testimony under the Williams holding,

and we find no error.

E. Sufficiency of the Evidence and Malice-Aforethought Instruction.
26

Burton next contends the State did not meet its burden to prove Burton

acted with malice aforethought and without justification to support a conviction of

second-degree murder. This contention is interwoven with his claim the jury

instruction allowing an inference of malice aforethought improperly shifted the

burden of proof from the State to Burton.

The jury received a number of instructions pertinent to the charge of

second-degree murder and the justification defense, and the instructions clearly

place the burden of proof on the State:

INSTRUCTION NO. 31
The State must prove all of the following elements of Murder
in the Second Degree:
1. On or about the 9th day of January, 2018, the defendant
shot Cory Channon.
2. Cory Channon died as a result of being shot.
3. The defendant acted with malice aforethought.
4. Defendant acted without justification.
If the State has proved all of the elements, the defendant is
guilty of Murder in The Second Degree. If the State has failed to
prove any one of the elements, the defendant is not guilty of Murder
in The Second Degree . . . .

(Emphasis added.)

INSTRUCTION NO. 48
The Defendant claims he acted with “justification.” A person
is “justified” in the use of reasonable force when the person
reasonably believes that such force is necessary to defend oneself
from any actual or imminent use of unlawful force.
The State must prove at least one of the following elements
to show that Defendant was not justified:
1. The Defendant provoked the use of force against himself
with the intent to use such force as an excuse to inflict injury on the
other person.
2. The Defendant did not believe he was in imminent danger
of death or injury and the use of force was not necessary to save
him.
3. The Defendant did not have reasonable grounds for the
belief.
4. The force used by the Defendant was unreasonable.
27

The State has the burden to prove the Defendant was not
acting with justification.

(Emphasis added.) The instructions went on to explain each of the four

alternatives. The instructions here correctly stated the law and did not improperly

shift the burden of proof.

The jury was also instructed as to the definition of malice and malice

aforethought: “[m]alice aforethought may be inferred from the use of a dangerous

weapon.” Burton claims this instruction was improper because he used a

dangerous weapon out of justified fear.

“If unjustified and unexcused, causing physical harm or death is a wrongful

act, and therefore the intent to do these things is a state of mind that would

constitute malice aforethought.” State v. Green, 896 N.W.2d 770, 780 (Iowa 2017).

“Thus, the jury may infer the defendant acted with malice aforethought by using a

dangerous weapon, the natural consequence of which is physical harm or death.”

Id. The Green court further explained,

[T]he defendant may argue the inference is improper because, even
though the weapon was deadly, and even though the defendant
intended the foreseeable consequences of using it, the defendant
had adequate provocation or fear of imminent bodily harm to use the
weapon. The inference would be inappropriate because the
defendant’s state of mind was not malicious, but instead was justified
or excused. Green asserts the inference was inappropriate in his
case based on the last of these examples; he argues the evidence
did not show he committed the homicide with malice because he did
not bring the weapon to the encounter and he was acting in self-
defense. Essentially, Green challenges the jury instruction in this
case by asserting there was not substantial evidence to support it.

Id. at 781 (internal citations omitted).

Burton claims the evidence shows Channon invited him into the apartment

and Burton “[c]almly asked Channon to give him back his gun,” but Channon
28

“lunged” at him with his right arm behind his back and he believed Channon was

armed. Burton contends this shows he had a reasonable belief the use of force

was reasonable and necessary.

Burton fails to mention the many texts he sent to Channon earlier in the day,

including Burton’s threats to “shoot you from half a mile away” and “the last thing

you’ll watch is me pissing on your head.” Nor does he mention that he and Purdy

planned to distract Channon so he would not be aware Burton was there with

“muscle,” or that he had been at Channon’s twice earlier in the day and expressed

no fear of Channon. He ignores the testimony from the neighbor that he heard

shouting just before the gun shot. Purdy testified Burton was armed and angry

when they drove to Channon’s to retrieve Burton’s gun. Burton also omits the fact

when he entered Channon’s apartment he was already holding his handgun at his

side so Channon could see it. Purdy testified Channon did not display any

aggressive behavior toward Burton.

Here, there was substantial evidence Burton “acted with malice

aforethought,” that is, with “a fixed purpose or design to do some physical harm.”

As was the case in Green, we conclude the court properly instructed the jury it

could infer Burton acted with malice aforethought from his use of a dangerous

weapon.

[I]f the jury rejected [Burton’s] self-defense argument, it could, but
was not required to, infer [Burton] acted with malice aforethought
from his use of a dangerous weapon. Later instructions explained
[Burton’s] justification defense and the State’s burden to overcome
it. Moreover, the jury was instructed it could only find [Burton] guilty
of second-degree murder if it found the State proved he lacked
justification.

See id.
29

We will uphold the verdict if it is supported by substantial evidence. See

Benson, 919 N.W.2d at 241. Evidence is substantial if, when viewed in the light

most favorable to the State, it could convince a rational factfinder the defendant is

guilty beyond a reasonable doubt. See id. Viewing the evidence in the light most

favorable to the State and giving the proper deference to the jury’s findings of fact

and determination of witness credibility, there is substantial evidence Burton acted

with malice aforethought and without justification when he shot and killed

Channon.

IV. Conclusion.

Having reviewed the alleged errors properly preserved, we conclude Burton

has failed to show “a reasonable probability that the verdict of the jury would have

been different” had the paper not be found in the jury room, and therefore, the court

did not err in denying the motion for mistrial. The court’s evidentiary rulings either

were not an abuse of discretion or did not result in prejudice to the defendant. The

evidence supported the jury instruction allowing an inference of malice

aforethought from the use of dangerous weapon, and substantial evidence

supports the conviction of second-degree murder. We therefore affirm.

AFFIRMED.