State of Iowa v. Dustin Jerome Jefferson

IN THE COURT OF APPEALS OF IOWA

No. 16-0935
Filed September 12, 2018

STATE OF IOWA,
Plaintiff-Appellee,

vs.

DUSTIN JEROME JEFFERSON,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Tama County, Mary E. Chicchelly,

Judge.

A defendant appeals his conviction for aiding and abetting first-degree

murder. AFFIRMED.

Cory J. Goldensoph, Cedar Rapids, for appellant.

Thomas J. Miller, Attorney General, and Darrel L. Mullins and Laura Roan,

Assistant Attorneys General, for appellee.

Heard by Danilson, C.J., and Potterfield and Mullins, JJ.
2

MULLINS, Judge.

Dustin Jefferson appeals his conviction of aiding and abetting first-degree

murder in violation of Iowa Code section 707.2 (2013). He argues there is

insufficient evidence to support his conviction and his trial counsel was ineffective

in a number of respects.

I. Background Facts and Proceedings

Dustin1 was convicted of aiding and abetting his mother, Ginger Jefferson,

in the stabbing death of his wife, Kerry Jefferson. Dustin and Kerry had a volatile

marriage and lived separately. Dustin lived at his cousin Carlos’s house, but Kerry

often spent time with him there. Kerry fearfully told a friend shortly before her death

that Dustin might hurt or kill her. The next day, however, she did not want to talk

about it.

Kerry and Dustin spent the night together at Carlos’s house on September

24, 2013. The next day, September 25, Ginger and her daughter Sahara, Dustin’s

sister, arrived at the house before 10:00 a.m. Ginger, Sahara, and Dustin began

to drink alcohol together. Around 11:00 a.m., Kerry left the house. A liquor store

clerk testified that between 11:00 and 11:30 a.m., Kerry arrived at the store and

purchased a bottle of whiskey. The store clerk testified she knew Kerry and had a

chance to observe her face during the sale; she did not notice any bruises or injury

to her body or face, and testified “she looked—she actually looked really good that

day.”

1
Several of the participants in these events share the last name, Jefferson. We refer to
those participants by their first names.
3

Kerry’s mother testified that between 11:00 and 11:30 a.m., Kerry came to

visit her for approximately an hour. Kerry was in a good mood and was excited

that she was going to have a job interview for a new CNA job the next day. Her

mother testified concerning how Kerry looked that day:

Q. When you saw your daughter Kerry on the 25th of
September of 2013, did she have any bruises or injuries or any
indication that she’d been in any sort of physical altercation? A. No.
Q. She looked fine? A. She looked fine.

Kerry then returned to Carlos’s house.

According to Dustin’s police interview given later that day, Dustin, Sahara,

and Ginger were going to go for a drive and asked Kerry if she wanted to come.

Dustin told police:

And I’m driving. And I’m drunk, so she’s all, she’s already drunk and
she’s already mad because I’m driving and she knows I got a
warrant, so that’s her main thing. Well, I’m calling the cops so you
don’t drive. You got a warrant. . . . I was like well, we’re gonna go
for a drive, you wanna go? She said no, I’m not gonna go. And I
was like all right, well, we’re gonna go for a cruise, and she said well,
I’m calling the fuckin’ cops because you’re driving.

Sometime before 1:00 p.m., Dustin, Ginger, and Sahara left in Sahara’s car, with

Dustin driving.

Between 1:00 and 2:40 p.m., Kerry’s phone was used to place several

phone calls to Dustin and several phone calls to the Meskwaki Nation Police

Department.2 Kerry called the police department at 1:22 p.m. and had a

conversation with Officer Joe Hols about an outstanding arrest warrant for Dustin,

and possible locations where Dustin could be found. There were then three calls

2
A search warrant executed on the phone revealed the time and duration of the calls.
4

to Dustin’s phone—1:56 p.m. for one minute and seven seconds; 2:02 p.m. for

twenty-two seconds; and 2:11 p.m. for eighteen seconds.

At 2:15 p.m., Kerry called the police department a second time and

requested the administrative assistant to connect her to Officer Hols. Officer Hols

was unavailable and Kerry was transferred to Detective Craig Karr. This second

call to the police department lasted seven minutes and six seconds. At 2:22 p.m.,

Kerry called Dustin in a call lasting sixteen seconds. Also at 2:22 p.m., Kerry called

the police department for one minute and twenty-three seconds. She requested

to speak to Detective Karr, was put on hold, and then disconnected. At 2:24 p.m.,

Kerry phoned Dustin in a call lasting fifty-five seconds.

At 2:33 p.m., Kerry called the police department, apparently inadvertently,

for fifty-six seconds, then four and seven seconds. In the first, longest call, the

administrative assistant at the police department recognized the voice of Kerry

arguing with two other people she said sounded like females. The assistant heard

Kerry yelling that the other two were going to jail for what they had done and heard

what she identified as two female voices also yelling in response, but she was

unable to understand what they were saying. Eventually, Kerry realized that

someone on her phone was trying to get her attention, and she identified herself

and apologized for the “ass dial.”

At 2:35 p.m., approximately one minute after her inadvertent calls to the

police department, Kerry called the police department again and spoke to

Detective Karr in a call lasting two minutes and twenty seconds. Detective Karr

testified Kerry asked him if he had arrested Dustin yet. When Detective Karr
5

replied he had not, she told him to get to 104 Harmon Street—Carlos’s house—

because Dustin was there and “won’t be here long.”3

According to Dustin’s statement to law enforcement, he and Ginger returned

to Carlos’s house. Sahara was no longer with them; she testified that during the

drive Dustin stopped the car and she got out to go to the bathroom outdoors and

did not get back in the vehicle. A police officer later saw Sahara walking on the

highway at 2:37 p.m. and transported her to the Grinnell Medical Center for

treatment for diabetes.

According to Dustin’s statement to police the following day, he and Ginger

got out of the car at Carlos’s house, Dustin went to the bathroom outside, and then

he sat down in a chair in front of the garage with another beer. Ginger went inside

to use the bathroom. Dustin said Kerry stuck her head out the door and told him

the police were coming. Minutes later, Ginger emerged from the back of the house

with her hands bloody, told Dustin she had “hurt Kerry,” and took off running.

Dustin stated he was “in shock” and got in his car and drove around the block

looking for Ginger.

Ginger went to Amber Navarro’s home, approximately one block from

Carlos’s house. Amber is the girlfriend of Daniel, who is Ginger’s nephew and

Dustin’s cousin. Ginger was upset, intoxicated, and had blood on her hands.

Because Amber’s children were present, Amber assisted Ginger in washing her

hands so the children would not see the blood and be frightened. At some point,

3
We recognize the inconsistency between Kerry’s question to Detective Karr and her
subsequent statement that Dustin was present at Carlos’s house.
6

Ginger fell and Amber helped her up. During her direct examination by the State,

Amber testified:

Q. What else did Ginger Jefferson say regarding stabbing her
daughter-in-law Kerry? A. She said that her and Kerry got into it and
she accused her sleeping—her and Dustin sleeping together on a
gravel road.
Q. That Kerry was? A. Kerry was accusing Dustin and Ginger
of sleeping together on a gravel road.
Q. And did Ginger explain how she stabbed or came to stab
her daughter-in-law Kerry? A. No, she just said they got into it and
she stabbed her twice in the neck.
Q. What did she say about a knife being brought out? A. She
said that they were playing around with a knife.
....
Q. Did she explain at all how she happened to take the knife?
A. No.
....
Q. Did she explain who they was? A. No.

Amber testified Ginger believed Kerry was dead. Ginger asked Amber to call

Laurie Davenport, a daughter-in-law to Ginger, and both Amber and Laurie recall

Ginger stating, “I stabbed her twice in the neck.” Amber then called the police.

The police arrived at Carlos’s house at 2:44 p.m. to arrest Dustin on his

outstanding warrant. Dustin pulled into the driveway next to the police car. When

the officers approached him, Dustin told them he needed to check on his wife

because she might be hurt or dead. Police entered the home and found Kerry

dead in a pool of blood on the floor. She had sustained two stab wounds to the

neck.

Forensic tests show Kerry’s blood on the outside door frame of Amber’s

house and on Amber’s shirt. Kerry’s blood was also found on Dustin’s clothing

and shoes. Police found a folding knife in the back yard of Carlos’s house; Dustin

said it belonged to him and he left it near the sink in the kitchen.
7

In June 2014, Dustin was charged by trial information with first-degree

murder as either a principal or an aider and abettor. Ginger was also charged,

tried separately, and convicted of first-degree murder. Dustin’s first jury trial

resulted in a hung jury. A second jury convicted Dustin of aiding and abetting

murder in the first degree.

Dustin appeals his conviction. Additional facts will be set forth below as are

relevant to the issues raised on appeal.

II. Sufficiency of the Evidence

Dustin argues the State did not present sufficient evidence at trial to convict

him of aiding and abetting murder in the first degree. Challenges to the sufficiency

of the evidence are reviewed for corrections of errors at law. State v. Kelso-

Christy, 911 N.W.2d 663, 666 (Iowa 2018). The court views “the evidence ‘in the

light most favorable to the State, including all reasonable inferences that may be

fairly drawn from the evidence.’” State v. Ortiz, 905 N.W.2d 174, 180 (Iowa 2017)

(quoting State v. Huser, 894 N.W.2d 472, 490 (Iowa 2017)). All evidence is

considered, not just that of an inculpatory nature. See Huser, 894 N.W.2d at 490.

“[W]e will uphold a verdict if substantial evidence supports it.” State v. Wickes,

910 N.W.2d 554, 563 (Iowa 2018) (quoting State v. Ramirez, 895 N.W.2d 884, 890

(Iowa 2017)). “Evidence is substantial if, ‘when viewed in the light most favorable

to the State, it can convince a rational jury that the defendant is guilty beyond a

reasonable doubt.’” Id. (quoting Ramirez, 895 N.W.2d at 890).
8

To uphold Dustin’s conviction for aiding and abetting first-degree murder,

the State must prove Dustin knew Ginger had specific intent to kill.4 First-degree

murder requires the accused to “willfully, deliberately, and with premeditation kill[]

another person.” Iowa Code § 707.2(1). “When . . . intent is an element of the

crime charged, a person may be convicted on a theory of aiding and abetting if she

participates with either the requisite intent, or with knowledge the principal

possesses the required intent.” State v. Tangie, 616 N.W.2d 564, 574 (Iowa 2000).

The State’s theory at trial was that Dustin was present in the home when

Ginger stabbed Kerry. The State presented forensic evidence Kerry’s blood was

found on Dustin’s clothing and sandals. The expert at trial testified the blood found

on the back of Dustin’s shirt was consistent with a transfer stain, where a bloody

object came into contact with the shirt. Dustin’s sandals had spatter stains on the

top and there was a drop of blood on the bottom of one sandal. The expert at trial

testified spatter stains could be caused by several things, including:

One would be impact where you beat somebody with a baseball bat
or shoot them with a gun, that would be a force acting upon a blood
drop or a blood pool to break it up into these small sizes of stains.

4
The following marshalling instruction was provided to the jury:
The State must prove all of the following elements of Murder in the
First Degree:
1. On or about . . . September 25, 2013, Ginger Jefferson, aided
and abetted by the defendant, without justification, stabbed Kerry O’Clair
Jefferson.
2. Kerry O’Clair Jefferson died as a result of being stabbed.
3. Ginger Jefferson, aided and abetted by the defendant, acted with
malice aforethought, with the knowledge of the defendant or the defendant
acted with malice aforethought.
4. The defendant aided and abetted Ginger Jefferson who, with the
knowledge of the defendant, acted willfully, deliberately, premeditatedly
and with a specific intent to kill Kerry O’Clair Jefferson.
If the State has proved all of the elements, the defendant is guilty
of Aiding & Abetting Murder in the First Degree. If the State has failed to
prove any one of the elements, the defendant is not guilty.
9

Another would be expiration of blood where you have blood in your
mouth, your nose, your airway and you’re coughing it out, kind of
wheezing it out, and it comes out your mouth and nose. Satellite
spatter is another. So if these shoes were flat on the floor and
somebody was wearing them and blood was dripping onto the floor
right next to them, certainly small satellite stains could come up from
the parent stain that hits the floor and be deposited as spatters on
these shoes.

Dustin maintains he never entered the home and argues Kerry’s blood on

his clothing and shoes must have been transferred from Ginger. Dustin argues

the spatter stains on his shoes and the blood stain on the bottom of his shoe were

from Ginger dripping blood on him. The expert testified it was possible the spatter

stain was from blood dripping off of Ginger. Dustin had less blood on his clothing

and shoes than Ginger, and argues that fact disproves the State’s theory he was

in the room at the same time Ginger was murdering Kerry.

The State argues the drop of blood on the bottom of Dustin’s shoe

indicates Dustin stepped in blood. For Dustin to have stepped in blood outside the

house, there would have to be blood drops outside the house where Ginger stood

when she came out of the house and told Dustin she had hurt Kerry. However,

crime scene experts testified they looked for blood outside on the driveway and

sidewalk and did not find any.

The State presented evidence Kerry was bruised and had a black eye and

argues that because Ginger was twenty-five years older and eighty pounds lighter

than Kerry, Ginger would have had a hard time physically overpowering Kerry, and

Dustin must have held Kerry down as she was stabbed.5 The medical examiner

5
The jury also heard testimony from Kerry’s mother from which it could have found that
Ginger and Kerry had a previous physical altercation during which Kerry was holding
Ginger down and Dustin had to pull her off of Ginger.
10

testified he could not tell when the bruising occurred. There is forensic evidence

Kerry stood up and fell after she was stabbed. Amber Navarro testified a distraught

and intoxicated Ginger made statements shortly after the murder taking

responsibility for the stabbing, and said “they were playing around with a knife.”

Ginger did not tell Amber how she happened to take the knife.

The State also argues the murder weapon was Dustin’s personal pocket

knife, as Dustin readily admitted, and that Dustin probably provided the knife to

Ginger. Dustin told police officers he regularly left his knife in the kitchen when he

bathed, including a few nights before the murder. The knife was found in the

backyard of the home the day after the murder. In his police interview, Dustin

stated Ginger used the back door when she came out of the house. The State

argues Dustin must have gone into the backyard before he returned to his car,

because Ginger’s hands were bloody and the back door handle did not have any

blood on it, implying that Dustin had to have opened or closed the door for her.

The record is inconclusive on whether the front door was tested for blood.

“[I]ntent is a state of mind difficult of proof by direct evidence. It may,

however, be established by circumstantial evidence and by inferences reasonably

to be drawn from the conduct of the defendant and from all the attendant

circumstances in the light of human behavior and experience.” Kelso-Christy, 911

N.W.2d at 667–68 (quoting State v. Casady, 491 N.W.2d 782, 787 (Iowa 1992)).

We look at the evidence cumulatively. See Huser, 894 N.W.2d at 493 (“None of

the facts presented above, standing alone, would be sufficient to support a verdict,

but their cumulative effect provides a reasonable basis for the jury’s guilty

verdict.”); see also Tangie, 616 N.W.2d at 574 (finding knowledge of and proximity
11

to the crime scene, together “with circumstantial evidence such as ‘presence,

companionship, and conduct before and after the offense is committed,’ may be

enough to infer a defendant’s participation in the crime” (quoting State v. Lewis,

514 N.W.2d 63, 66 (Iowa 1994))).

Here, the evidence shows a long history of conflict between Ginger and

Kerry, a long history of marital strife between Dustin and Kerry, with interims of

getting along, and an argument immediately leading up to the murder. Dustin and

Kerry spent the night before the murder together, they drank alcohol together with

Ginger and Sahara the next day, and then Kerry got mad at Dustin and was trying

to get him arrested. There is an inference that Dustin and Ginger were enraged

that Kerry called the police about Dustin’s warrant and his whereabouts and so

formed the specific intent to kill. The State theorizes that Ginger, with bloody

hands, left on foot to go to Amber’s house while Dustin threw away the knife, wiped

his hands and the doorknob, closed the back door, and got into his car and drove

around before returning and pulling into the driveway next to the police car and

directing the police to check on his wife because she might be hurt or dead.

On the morning of Kerry’s death, both her mother and a liquor store clerk

saw Kerry and neither noticed a black eye or bruising. Kerry’s autopsy revealed a

black eye and numerous bruises, signs indicating she had been beaten. The crime

scene showed evidence of a struggle, multiple stab wounds to Kerry’s person, and

at least one missed effort to stab her. Those facts, together with the size and

weight differential between Kerry and Ginger—Kerry was taller and heavier than

Ginger—create an inference that Ginger could not have beaten and overcome

Kerry and held her down to stab her without assistance; or would have been unable
12

to render Kerry unconscious by herself in order to then stab Kerry to death by

herself. The inferences drawn from the crime scene and Kerry’s condition support

the State’s argument that someone assisted Ginger in killing Kerry. The evidence

shows Dustin was the only person with Ginger when she arrived at Carlos’s house

and was also the only person present when she left the house.

When the State chose to charge Dustin with aiding and abetting first-degree

murder, it assumed the burden to prove Dustin either shared the requisite specific

intent or knew of Ginger’s mental state before or at the time the offense was

committed. See State v. Pearson, 547 N.W.2d 236, 241 (Iowa Ct. App. 1996).

The undisputed evidence places Ginger in the house, and Dustin admitted to being

outside the house at the time of the murder. There is no evidence to suggest that

anyone other than Dustin and Ginger were at 104 Harmon Street between 2:35

and 2:44 p.m. that day. The administrative assistant at the police department had

answered Kerry’s accidental call at 2:33. She testified:

I recognized Kerry's voice just because I knew who she was.
I recognized her voice and I can hear her hollering you’re going to
jail, you’re going to jail, you’re both going to jail for what you did. The
people—I couldn’t recognize their voices because it seemed like they
were a little bit farther away from the phone; they were hollering back
at her, but I couldn’t make out their words. I couldn’t—I can make
out Kerry’s words because she was closer to the phone, but I couldn’t
make out the people that were hollering at her.
Q. If I’m understanding correctly, though, you are hearing
voices of three people? A. I heard Kerry’s voice, and then two other
people yelling at her.
Q. But you were able to distinguish that it was three voices; is
what you were hearing? A. Yes.

She later testified she thought all three voices sounded like females. There is no

question that one of the voices was Ginger. The other voice could not have been

Sahara because she was found intoxicated on a rural highway at 2:37 p.m. From
13

2:35 to 2:37 p.m., Kerry was on the phone telling Detective Karr that Dustin was

there at 105 Harmon Street. In one of Dustin’s statements to law enforcement, he

said that while Ginger was in the house going to the bathroom and he was outside

by the garage, Kerry stuck her head out the door and told him the police were

coming.

Amber Navarro testified:

Q. What else did Ginger Jefferson say regarding stabbing her
daughter-in-law Kerry? A. She said that her and Kerry got into it and
she accused her sleeping—her and Dustin sleeping together on a
gravel road.
Q. That Kerry was? A. Kerry was accusing Dustin and Ginger
of sleeping together on a gravel road.

Among the stock jury instructions given by the district court, it instructed the

jury “to reconcile any conflicts in the evidence; but if you cannot, accept evidence

you find more believable,” and that they “may believe all, part, or none of any

witness’s testimony.” The State argues it was possible that Dustin and Ginger

were the two other voices arguing with Kerry at 2:33 p.m., shortly before the

murder, when Kerry made an accidental phone call to the Meskwaki Nation Police

Department. The administrative assistant testified she heard Kerry arguing with

people—whom she identified as female based on their voices—stating “you’re both

going to jail for what you did.” Amber testified that Ginger described an argument

between her and Kerry involving accusations by Kerry that Ginger and Dustin had

slept together. The jury was faced with trying to reconcile the evidence concerning

a number of questions, including: (1) Who was present at 105 Harmon Street in

the last few minutes of Kerry’s life; (2) who was the third person heard by the

administrative assistant during the inadvertent phone call from Kerry; (3) did Dustin
14

remain outside while Ginger was inside as he claimed to law enforcement; (4) who

was Ginger talking about when she told Amber “they” were playing around with a

knife; (5) could Ginger have overcome Kerry and killed her with Dustin’s knife

without assistance; and (6) how did Dustin get blood on him? As the jury was

instructed, it was free to reject the administrative assistant’s testimony or to decide

Dustin’s voice could be mistaken for a female voice.6 See State v. Thornton, 498

N.W.2d 670, 673 (Iowa 1993) (“The jury is free to believe or disbelieve any

testimony as it chooses and to give weight to the evidence as in its judgment such

evidence should receive.”). The other voice could not have been Sahara. She

was seen walking on a public street at the time of the accidental call. Officer Bruce

Rhoades testified he responded to a 2:17 p.m. call regarding a female walking on

a road and picked up Sahara at 2:37 p.m.

The State provided evidence from which the jury could find Dustin and

Ginger were arguing with Kerry minutes before her murder and Dustin was present

during Kerry’s murder. The evidence also supports a finding that someone

assisted Ginger to subdue Kerry before she was stabbed or held her down while

she was stabbed, and that Ginger used Dustin’s knife to stab Kerry. We do not

know and cannot know whether the jury relied on this theory of the facts or some

other theory when it found Dustin guilty. Our duty is only to determine if there is

evidence from which a reasonable jury could have found Dustin guilty beyond a

reasonable doubt. Taking the evidence in the light most favorable to the State,

including reasonable inferences, we find the State presented sufficient evidence

6
The jury was also free to accept or reject different portions of Kerry’s statements in her
telephone conversation with Detective Karr.
15

from which a jury could conclude Dustin knew of Ginger’s intent to kill Kerry and

assisted her in the act of killing Kerry.

The State provided sufficient evidence to support the conviction for aiding

and abetting first-degree murder under section 707.2.

III. Ineffective Assistance of Counsel

Dustin contends his trial counsel was ineffective in failing to object to several

instances of alleged prosecutorial misconduct and alleged violations of the court’s

limine order. We review ineffective-assistance-of-counsel claims de novo. State

v. Harrison, 914 N.W.2d 178, 188 (Iowa 2018). Dustin “must establish by a

preponderance of the evidence that ‘(1) his trial counsel failed to perform an

essential duty, and (2) this failure resulted in prejudice.’” State v. Lopez, 907

N.W.2d 112, 116 (Iowa 2018) (quoting State v. Harris, 891 N.W.2d 182, 185 (Iowa

2017)); accord Strickland v. Washington, 466 U.S. 668, 687 (1984). We “may

consider either the prejudice prong or breach of duty first, and failure to find either

one will preclude relief.” State v. McNeal, 897 N.W.2d 697, 703 (Iowa 2017)

(quoting State v. Lopez, 872 N.W.2d 159, 169 (Iowa 2015)). A failure to register

meritless motions or arguments does not amount to ineffective assistance of

counsel. See State v. Tompkins, 859 N.W.2d 631, 637 (Iowa 2015). “Improvident

trial strategy, miscalculated tactics or mistakes in judgment do not necessarily

amount to ineffective counsel.” Lamasters v. State, 821 N.W.2d 856, 866 (Iowa

2012) (quoting Hinkle v. State, 290 N.W.2d 28, 34 (Iowa 1980)).

A. Failure to Object to Alleged Prosecutorial Misconduct

1. Blood on Ginger and Dustin
16

Dustin contends his attorney was ineffective in failing to object to the

prosecutor’s claim in closing arguments that Dustin had as much blood on him as

Ginger did. Dustin specifically complains his counsel failed to object to the

following statement:

And you think if [Ginger] stabbed her, she’d be covered in blood, but
other than her hands which held the knife that did have Kerry’s blood,
she didn’t have any more blood on her clothes or shoes than [Dustin]
did.

On our review of the evidence and the closing arguments, we determine the

State’s closing argument remarks comparing the quantity of blood evidence may

arguably have been overstated, but was prefaced by telling the jury: “So look at

the physical evidence. You look at all the blood on the floor and take a look at all

those photos.” The jury had the opportunity to test the State’s argument against

the evidence. The blood evidence was also thoroughly addressed by defense

counsel in his closing argument. We do not find counsel’s failure to object to the

argument constituted a failure to provide competent representation. Counsel was

not ineffective.

2. Disparaging Dustin

Dustin claims his counsel was ineffective in failing to object to the

prosecutor’s statements in closing argument implying that he lied to law

enforcement at the time they notified him of Kerry’s death. Dustin argues it was

improper for the prosecutor to call him a liar and cites State v. Graves to support

his position. See 668 N.W.2d 860, 876 (Iowa 2003) (“[I]t is improper for a

prosecutor to call the defendant a liar, to state the defendant is lying, or to make

similar disparaging comments.”). However, Graves contemplated a situation in
17

which the prosecutor forced a testifying defendant to comment on the veracity of

another witness and then, in closing rebuttal argument, expressly claimed the

defendant was lying in his sworn testimony at trial. See id. at 867–68. Our

supreme court found it “improper to ask the defendant whether another witness

has lied,” and to call a testifying defendant a liar. See id. at 873, 876. The court

explained, however, that “a prosecutor is still free ‘to craft an argument that

includes reasonable inferences based on the evidence and . . . when a case turns

on which of two conflicting stories is true, [to argue that] certain testimony is not

believable.’” Id. at 876 (alterations in original) (citation omitted).

Dustin did not testify at trial, so the concerns contemplated in Graves are

not at play. The central teaching of Graves is that the “defendant is entitled to

have the case decided solely on the evidence.” See id. at 874 (quoting State v.

Williams, 334 N.W.2d 742, 744 (Iowa 1983)); see also State v. Carey, 709 N.W.2d

547, 556 (Iowa 2006). Graves misconduct occurs when the prosecutor attempts

to incite the passions of the jury by going outside the record of evidence. See

Carey, 709 N.W.2d at 556. Such was not the case here.

Dustin only complains of the following two excerpts of the prosecutor’s

closing arguments:

Now, later he [played] possum pretty darn good with the [Division of
Criminal Investigation (DCI)] agents. He didn’t feign a bit of surprise.
He feigned complete and utter devastation and shock.
....
. . . . [T]hey give him the death notice, they say she didn’t
make it. . . . and he starts to cry and scream and wail. In fact, note
in his grief whether you find it credible or not, because . . . he looks
up, and he looks squarely in the camera, and it’s almost as if you see
him make the decision to start telling a story about his mother’s
involvement, to come clean, just as [defense counsel] explained. But
that’s an act, folks. That’s all an act.
18

But Dustin chooses selective language supportive of his argument and fails to

acknowledge the prosecutor’s detailed walk through the evidence following both

statements. After each statement, the prosecutor explained why the evidence

supported a conclusion that Dustin already knew Kerry was dead when he spoke

with DCI agents by pointing to several pieces of specific evidence to that effect.

The challenged statements were nothing more than arguments based on

reasonable inferences of the evidence, and they did not amount to misconduct.

See Graves, 668 N.W.2d at 876. Defense counsel was under no duty to object

and was therefore not ineffective in failing to do so.

3. Distorted burden of proof

Next, Dustin claims his counsel was ineffective in failing to object to the

prosecutor’s alleged distortion of the burden of proof in her closing argument.

Dustin specifically complains of his counsel’s failure to object to the following

statement by the prosecutor: “In opening statements, [defense counsel] told you

that there would be evidence that the defendant went into the house after the

stabbing and then left. There has been no evidence presented to that effect.”

The prosecutor’s statement was a comment on the lack of evidence in

support of defense counsel’s opening statement which apparently was intended to

explain how Dustin got blood on his shoe. The prosecutor merely directed the

jury’s attention to Dustin’s failure to present specific evidence he promised in

opening statements. We find this permissible and conclude counsel was under no

duty to object. See, e.g., State v. Hanes, 790 N.W.2d 545, 557 (Iowa 2010)

(distinguishing between (1) an “attempt to shift the burden to the defense to call
19

the witnesses or to suggest the jury could infer from the defense’s failure to call

the witnesses that they would not have said anything helpful to the defense,” which

is improper, and (2) a situation “where the prosecutor generally referenced an

absence of evidence supporting the defense’s theory of the case,” which is

permissible); State v. Davisson, No. 15-1893, 2016 WL 7393890, at *2 (Iowa Ct.

App. Dec. 21, 2016) (“[P]rosectuion comments that are aimed at exposing a lack

of evidence to support a defendant’s general theory or a particular proposition are

not improper.”); see also Wise v. State, 751 A.2d 24, 34 (Md. Ct. Spec. App. 2000)

(“[A] defense attorney’s promising in opening statement that the defendant will

produce evidence and thereafter failing to do so does open the door to the fair

comment upon that failure . . . .”).

Furthermore, the jury was appropriately instructed that the burden was on

the State to prove Dustin guilty beyond a reasonable doubt. “We presume juries

follow the court’s instructions.” Hanes, 790 N.W.2d at 552. The court’s instructions

on the burden of proof dissipated any prejudice flowing from the challenged

statement.

4. Inflammatory words

Finally, Dustin asserts his attorney was ineffective in failing to object to the

prosecutor’s repeated usage of allegedly inflammatory words during closing

arguments. Dustin specifically complains of his counsel’s failure to object to the

prosecutor’s repeated use of the words “beatings,” “violent,” and “violence” when

describing the nature of Dustin and Kerry’s volatile relationship. He asserts the

prosecutor’s use of these words was improper because they misstate, distort, and

overemphasize the record. We easily reject Dustin’s argument as to the
20

prosecutor’s use of the words violent and violence, because specific testimony was

presented that Dustin and Kerry’s marriage was violent. As to the prosecutor’s

use of the word “beatings,” we acknowledge no specific testimony was had that

Kerry suffered “beatings” at the hands of Dustin, but such is implicit in light of the

evidence that the two shared a violent relationship, and we conclude the

prosecutor’s use of the term was a fair characterization of the evidence presented.

Compare Beat, Webster’s Third New International Dictionary 192 (unabridged ed.

2002) [hereinafter Webster’s] (“to hit . . . so as to inflict pain”), with Violence,

Webster’s 2554 (“an exertion of any physical force so as to injure or abuse”). The

prosecutor was “entitled to some latitude during closing argument in analyzing the

evidence admitted” and was allowed to “argue the reasonable inferences and

conclusions to be drawn from the evidence.” Graves, 668 N.W.2d at 874. We find

the prosecutor acted within the latitude she was entitled and defense counsel was

under no duty to object and therefore did not render ineffective assistance.

B. Failure to object to violations of limine order

1. Prior alcohol use by Kerry and Dustin

Dustin argues his trial counsel was ineffective in failing to object to

testimony concerning his and Kerry’s prior alcohol usage, which he purports was

in violation of the district court’s limine order.

Prior to trial, Dustin filed a motion in limine requesting that evidence

concerning his “use or abuse of alcohol not related to the crime for which he is

charged” be inadmissible at trial. The State filed its own motion in limine,

requesting that evidence concerning Kerry’s “prior alcohol-related convictions” and

“past history of . . . alcohol use or abuse” be excluded at trial. As to Dustin’s
21

motion, the court ordered “the State will be allowed to present evidence that

[Dustin] was drinking on the day of the incident but will not be allowed to present

evidence concerning prior convictions or blood alcohol level.” As to the State’s

request, the court ordered “the parties are allowed to illicit testimony that Kerry . . .

was drinking alcohol on the date of the events at issue” but “[n]o prior instances of

drinking shall be allowed to be presented.”

Dustin acknowledges that, at trial, “there [was] no mention by either party

about alcohol related criminal convictions,” but complains “the record is replete

with testimony about both Kerry and Dustin’s prior alcohol use.” Dustin provides

us with no explanation as to how he was prejudiced by evidence concerning his

and Kerry’s prior alcohol use. The district court’s order rendered inadmissible any

evidence concerning “instances of drinking” on the part of Kerry prior to “the date

of the events at issue.” Assuming without deciding that the presentation of

evidence concerning Kerry’s prior use of alcohol was in violation of the court’s

limine ruling, we find Dustin was not prejudiced by such evidence. As to Dustin’s

prior use of alcohol, the court only expressly disallowed “evidence concerning prior

convictions or blood alcohol level.” The evidence complained of did not fall within

this specific limitation, and was therefore not in violation of the court’s limine order.

As such, counsel was under no duty to object on the ground urged in this appeal

and, in turn, no breach of duty occurred. See Hyler v. Garner, 548 N.W.2d 864,

870 (Iowa 1996) (“[O]ur review is confined to those propositions relied upon by the

appellant for reversal on appeal.”).

2. Kerry wanting to divorce Dustin
22

Finally, Dustin argues his trial attorney was ineffective in failing to object to

testimony indicating Kerry wanted to divorce him. In his motion in limine, Dustin

requested the exclusion of “[a]ny evidence that [Kerry] was ‘planning’ to divorce”

him. The district court granted the request. Dustin complains of his trial counsel’s

failure to object to the following testimony of a police officer at trial concerning his

telephone contact with Kerry on the day of her death:

Before I hung up with [Kerry], I asked her if she would come out and
talk to me about the case that I was working with, and she said I will
come out tomorrow because I’ve been drinking and I will tell you part
of what I know because I’m still married. When I’m divorced, I will
tell you the whole story.

In order to establish the prejudice prong of an ineffective-assistance claim, a

defendant is required to “show that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.” Strickland, 466 U.S. at 694. “A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Id. “[T]he question is whether

there is a reasonable probability that, absent the errors, the factfinder would have

had a reasonable doubt respecting guilt.” Id. at 695. Upon our de novo review of

the record, we answer that question in the negative.

Even if trial counsel breached a duty in failing to object, there is no

reasonable probability that, but for this single, passive, and innocuous mention of

a potential dissolution of Dustin and Kerry’s marriage by one witness of many in

the course of a trial that lasted several days the result of the proceeding would

have been different—especially in light of the fact that Dustin and Kerry were

already living separately. We conclude Dustin suffered no prejudice. In the

alternative, it is likely trial counsel declined to object to the challenged testimony
23

because an objection would have drawn the jury’s attention to it. Cf. Williams, 334

N.W.2d at 745 (“Failure to object or to move to strike certain evidence may well

have been motivated by a desire not to emphasize the allegedly objectionable

testimony.”). Where “the challenged action ‘might be considered sound trial

strategy,’” there is “a strong presumption that counsel’s conduct falls within the

wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689

(quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).

IV. Conclusion

We find sufficient evidence supports Dustin’s conviction and trial counsel

was not ineffective as alleged. We affirm Dustin’s conviction of aiding and abetting

murder in the first degree.

AFFIRMED.

Danilson, C.J., concurs; Potterfield, J., dissents.
24

POTTERFIELD, Judge (dissenting).

I disagree with my colleagues that the evidence presented by the State is

sufficient to support the inferences they reach to affirm the jury’s verdict of first-

degree murder by aiding and abetting. “Inferences drawn from the evidence must

raise a fair inference of guilt on each essential element, including the element of

intent.” State v. Truesdell, 679 N.W.2d 611, 618 (Iowa 2004). “Evidence that only

raises suspicion, speculation or conjecture is not substantial.” State v. Lambert,

612 N.W.2d 810, 813 (Iowa 2000). A conviction may not rest on speculative

evidence—evidence that will support two or more reasonable inferences—that

forms the fulcrum over which guilt or innocence balances. Truesdell, 679 N.W.2d

at 618–19; see also State v. Reed, 875 N.W.2d 693, 711–13 (Iowa 2016) (Hecht,

J., concurring specially) (cautioning against recognizing a “stack of speculative

inferences piled one on top of another as substantial evidence”). The State’s

theory is a stack of speculative inferences and is adopted by the majority opinion.

Here, the “fulcrum” is the speculation that is the basis for the State’s

theory—that Dustin and Ginger argued with Kerry shortly before her death about

Kerry’s accusation the mother and son had sex on a gravel road.7 In order to draw

that inference, and to build upon it, the majority relies repeatedly on the case law

that the jury was free to believe the evidence or the State’s argument. See State

v. Thornton, 498 N.W.2d 670, 673 (Iowa 1993) (“The jury is free to believe or

7
The alternate State’s argument that Ginger and Dustin became enraged during their
drive because Kerry called the police about Dustin’s warrant and whereabouts is based
solely on speculation. The only evidence indicating even anger was Dustin’s statement to
law enforcement that it was Kerry who was angry before he, Ginger, and Sahara left and
that Kerry threatened to call the police. The majority’s reliance on a “long history of
conflict” is insufficient to prove Dustin had intent or knew of Ginger’s intent to kill Kerry.
25

disbelieve any testimony as it chooses and to give weight to the evidence as in its

judgment such evidence should receive.”). Amber’s testimony that drunken and

distraught Ginger said something about Kerry accusing Ginger of having sex with

her son Dustin on a gravel road provides the scant support for this theory. The

majority builds on this statement by Amber to conclude Ginger killed Kerry because

of this accusation and that Dustin was present in the house and participated in the

stabbing. Other actual evidence contradicts these inferences, and for these, the

majority reminds us the jury can believe the evidence or the State’s argument. See

id. Unlike Thornton, where there were several pieces of evidence refuting the

defendant’s claim of self-defense, here there is no alternate evidence on which the

jury could choose to rely. Rather, there is evidence and the State’s argument about

how to manipulate the evidence to support its case.

For instance, Amber also testified Ginger told her shortly after the murder,

that “they” were “playing around with a knife,” contradicting the notion of an

argument. The majority ignores the verb “playing around with” and speculates

“they” included not only Ginger and Kerry, but also Dustin. In the absence of

evidence the majority bolsters its assumption Dustin and Ginger were angry about

Kerry calling the police by reference to the reports of rocky relationships between

Kerry and Dustin and Ginger and Kerry. The majority ignores the apparently

harmonious events before Kerry became angry about Dustin’s plan to take a drive.

There is evidence about the sequence of events that follows, but it does not

fit the majority’s inferences. First, the evidence of phone calls made by Kerry has

to be manipulated so that the administrative assistant in the police department is

wrong in her identification of two women’s voices arguing with Kerry while the
26

assistant listens to Kerry’s inadvertent phone call. Because there is an absence

of evidence regarding individuals who may have been with Kerry while Dustin and

Ginger are driving, the majority leaps to the conclusion that there is “no question”

one of the voices was Ginger. Because the administrative assistant hears Kerry

telling the two individuals “you’re both going to jail for what you did,” the State and

the majority link the overheard argument among the unidentified individuals with

Ginger’s statement to Amber after the murder that Kerry accused her of having sex

with her son Dustin on a gravel road. Despite no evidence as to with whom Kerry

was arguing, other than the administrative assistant’s identification of two female

voices, the majority makes the leap to its inference that Kerry’s statement about

going to jail is directed at Ginger and Dustin for having sex together. The majority

stacks the evidence from Amber, that Ginger said Kerry accused Ginger and

Dustin of sleeping together, with the evidence of the phone call where Kerry is

overheard saying “you’re both going to jail for what you did,” to infer that Dustin

and Ginger were arguing with Kerry. From the argument, the majority infers Dustin

knew of Ginger’s intent to kill.

Second, the phone logs are a problem, since they indicate Kerry makes

another, deliberate call to the police less than two minutes after the overheard

argument. Kerry talked to Officer Karr and, according to the officer, asked if the

police have arrested Dustin yet. That question would be strange if Dustin and

Ginger were with Kerry in that small house and had just had an argument with

Kerry. If Dustin and Ginger were there, having had an argument, Kerry might well

have told the officer about the argument and about the presence of an enraged

Ginger and Dustin. Officer Karr testified that, after asking if Dustin had been
27

arrested, Kerry told him Dustin was there “and won’t be there long.” This statement

is consistent with Dustin’s assertion that he waited outside for Ginger to use the

restroom. Again, the majority resorts to its over-arching theory that the jury could

choose to disbelieve a witness—here, Officer Karr—in favor of a theory without a

basis in the evidence.

The crime scene and forensic evidence left holes, which the State—and the

majority—fill with pure speculation. The majority asks us to find that Dustin must

have known of Ginger’s intent to kill Kerry because he had blood on him, because

Ginger could not have physically overpowered Kerry without Dustin, and because

the knife was found in the back yard but there was no blood on the doorknob.

The relatively small amount of blood on Dustin presents a problem for the

State’s case and the majority’s inferences. The amount of blood on Dustin is not

enough to infer he knew of Ginger’s intent. If he were present and assisting in the

murder of Kerry, more of Kerry’s blood would have been on his person and clothing

when the police saw him minutes after the event. There was a small transfer stain

on the back on Dustin’s shirt, two spatter stains on the top of his sandal—both less

than 2 centimeters in diameter, and a drop of blood on the bottom of his sandal.

In contrast, Ginger had enough blood on her that after running to Amber’s house,

the blood was still dripping off of her arms onto the doorframe and Amber’s shirt.

The majority points to the physical size and age differences between Ginger

and Kerry as evidence Dustin assisted Ginger. Because bruising was visible on

Kerry’s body shortly after death but not earlier in the day and the medical examiner

could not say when the bruising occurred, the State argues it must have been

inflicted by Dustin. The theory assumes Ginger would not have been strong
28

enough to subdue Kerry in the absence of expert testimony about the mechanics

of the stabbing. It ignores that Kerry was found with alcohol and marijuana in her

system, which may have impaired her ability to fight off Ginger. It ignores that

Kerry was in a familiar place with a person she had been spending time with earlier

in the day, which may have meant Kerry was willing to let Ginger get close enough

to her for a surprise attack. It also ignores that Kerry was stabbed in her jugular,

which would have quickly incapacitated her. The theory also ignores the evidence

Kerry was stabbed on the bed, demonstrated by the errant stab into the mattress,

but was found face down in another room, indicating she likely fell or was pushed

to the ground after being stabbed.

The majority points to the knife found in the back yard and the lack of blood

on the back door as evidence that Dustin washed his hands, then the doorknob,

and then threw away the knife before reentering the car—all without any evidence

the blood had been washed or wiped or that any cleaning materials were found in

the house, in the yard, or in the car. Efforts to identify the source of the blood on

the knife were unsuccessful.

The inferences upon which support for this murder conviction relies are

stacked on top of each other without evidence. They require manipulation of the

evidence that does exist and rank speculation about what may have occurred and

what the jury may have imagined could have happened. The evidence here is

insufficient to support the verdict. I would reverse and remand for dismissal.