
IN THE SUPREME COURT OF IOWA

                              No. 158 / 03-0624

                           Filed February 10, 2006


STATE OF IOWA,

      Appellee,

vs.

JERRY LEE MICHAEL NEWELL,

      Appellant.



      Appeal from the Iowa District Court for Black  Hawk  County,  Todd  A.
Geer, Judge.

      Defendant appeals his conviction for first-degree murder.  AFFIRMED.

      Linda Del Gallo, State Appellate Defender,  and  Tricia  A.  Johnston,
Assistant State Appellate Defender, for appellant,  and  Jerry  Newell,  pro
se.

      Thomas J.  Miller,  Attorney  General,  Thomas  S.  Tauber,  Assistant
Attorney General, Thomas J. Ferguson, County  Attorney,  and  James  Katcher
and Linda Myers, Assistant County Attorneys, for appellee.

TERNUS, Justice.
      The appellant, Jerry Newell, was convicted of first-degree  murder  in
the death of his live-in girlfriend, Kathy Gillen.  See Iowa  Code  §  707.2
(2001) (defining murder  in  the  first  degree).   His  counsel  on  appeal
specifies several errors in the  district  court’s  rulings  and  asserts  a
claim of ineffective assistance of counsel.  The defendant has filed  a  pro
se brief raising additional claims.   Finding  no  basis  for  reversal,  we
affirm.
      I.  Background Facts and Proceedings.
      The following unchallenged evidence was admitted  at  the  defendant’s
trial.  At the time of the victim’s death,  the  defendant  and  the  victim
were living together with their two-month-old baby in  Waterloo,  Iowa.   On
June 15, 2001, the couple left the baby with the  defendant’s  mother,  Mary
Culbert, went to some garage sales, and then drank at a  local  bar.   While
at the bar, they each had about five drinks.  Witnesses who saw  them  there
said the couple appeared to  be  getting  along  well.   Around  6:30  p.m.,
Newell and Gillen returned to Culbert’s house and picked up their child.
      After arriving home, Gillen left on foot at approximately 7:45 p.m. to
get something for them to eat from a nearby grocery  store.   When  she  did
not return right away, Newell called Gillen’s  father  to  ask  if  she  was
there.  Eventually, Newell fixed himself something to  eat,  fed  the  baby,
and dozed off on the couch.
      Newell later told the police that he woke up sometime after 10:00 p.m.
when he heard Gillen toss a bag of  groceries  on  the  living  room  floor.
Shortly after that, he claimed he heard a noise in  the  kitchen.   When  he
went to investigate he  found  Gillen  lying  on  the  floor,  unresponsive.
Newell claimed he tried to revive her by  pushing  her,  throwing  water  on
her, lifting her head, and attempting CPR.  When  Gillen  did  not  respond,
Newell said he “freaked.”  Instead of calling 911, he  called  his  mother’s
house, looking for  his  mom.   After  speaking  with  his  brother,  Newell
gathered up the baby and drove to his mother’s house.
      Evidence admitted at trial showed that Newell omitted  some  facts  in
his statements to the police and that not all of his  assertions  about  the
events up to this point in time were true.  A cash register receipt  from  a
nearby grocery store established that  Gillen  had  purchased  groceries  at
9:29 p.m. that evening.  Neighbors testified they saw Gillen outside  as  it
was getting dark, trying to catch Newell’s  dog.   One  of  these  neighbors
testified that he saw Newell standing at the back door while  Gillen  chased
the dog and returned to the house.  About an hour later this neighbor  heard
the defendant talking to his brother, and then  heard  the  defendant’s  car
leave.  Another neighbor testified that at about this same time he heard  “a
lot of yelling and screaming,  doors  slamming.”   Afterwards,  he  heard  a
truck pull out and speed south down the street.  A third  witness  testified
he actually saw the defendant get into his car and speed off.
      The defendant’s brother, Jonathan Newell, testified that  around  9:40
p.m. he answered  the  phone  at  the  home  of  Mary  Culbert,  the  Newell
brothers’ mother.  The caller was  the  defendant;  he  wanted  to  talk  to
Culbert, but Culbert was not home.  In a second call to  the  house,  Newell
told his brother that something was wrong with Gillen and said,  “She  might
be dead.”   Jonathan  contacted  Culbert  at  a  friend’s  house,  gave  her
Newell’s message, and then got  on  his  bike  and  headed  toward  Newell’s
house.  On the way, he met Newell,  and  they  both  returned  to  Culbert’s
house, where they met Culbert. There, Newell told  his  mother  that  Gillen
was on the floor, and he could not tell whether she was breathing.   Culbert
then left for Newell’s house.
      After Culbert left, Newell went into his mother’s house with the baby.
Shortly thereafter, he called his own house and talked  to  Culbert,  asking
about Gillen’s condition.  He also spoke with Jonathan about  what  happened
at Newell’s house.  According to Jonathan, Newell told him that  Gillen  was
leaving out the back door when Newell told her, “You ain’t  leaving  again,”
and pushed her back.  Newell told his  brother  that  Gillen  made  a  funny
noise and dropped to the floor.  Jonathan  testified  Newell  told  Jonathan
that he attempted CPR, poured water on Gillen,  and  also  poured  something
into her mouth.  Newell was scared and told his brother that he “thought  he
was going to get it for murder.”  After talking  with  his  brother,  Newell
left his mother’s house without his child, but did not tell  Jonathan  where
he was going.
      In  the  meantime,  Culbert  had  entered  her  son’s  house  and  had
discovered Gillen on the floor, warm to the touch but with no pulse.   After
speaking with her son on the phone, Culbert called 911  from  Newell’s  home
at 10:18 p.m.  Paramedics were dispatched on a  “fall,  unconscious  person”
call.  They arrived at the house within two to three minutes and  found  the
victim on the kitchen floor, without pulse or respirations.  The  paramedics
attempted to resuscitate  Gillen  by  initiating  CPR  and  intubating  her.
Intubation was difficult because Gillen’s throat  kept  filling  up  with  a
clear liquid  fluid,  which  contained  no  evidence  of  stomach  contents.
During an attempt at intubation, the fluid came up through the ET  tube  and
into one paramedic’s mouth.  He testified the  fluid  tasted  like  straight
tequila, and he thought that it had been poured  into  the  victim’s  mouth.
Despite their efforts, emergency personnel were  unable  to  revive  Gillen.
It was estimated that she had been dead from  fifteen  minutes  to  an  hour
when the paramedics arrived.
      Meanwhile Newell had left Culbert’s house, riding a bicycle over to  a
friend’s home, Deanne Waniorek, arriving between 10:00 p.m. and  11:00  p.m.
Newell told Waniorek that he had been upset  with  Gillen  because  she  had
been gone so long.  When Gillen told Newell she was leaving,  he  responded,
“No, you’re not,” and stopped her by pushing her.  Gillen, he  stated,  fell
over.  Newell told Waniorek  that  initially  he  thought  that  Gillen  was
faking, and he tried shaking her.  When she did not  respond,  he  attempted
CPR, and he was afraid he might have  hurt  her  by  doing  it  incorrectly.
Newell also confided in his friend that he  was  concerned  he  “might  have
done something wrong and he could be in trouble, he  might  go  to  prison.”
While at Waniorek’s home, Newell also talked to another person there,  Keith
Wirtz.  Newell told Wirtz a different  story  than  he  had  told  Waniorek.
According to Wirtz, Newell told Wirtz that Newell had had an  argument  with
his girlfriend and that Newell thought she had died of alcohol poisoning.
      Newell stayed at Waniorek’s house a short time and  then  returned  to
his mother’s home.  There, he was told that Gillen  was  dead.   When  asked
what had happened, Newell said that Gillen  had  been  fine  when  he  left.
Newell paced nervously in the house and repeatedly stated, “What am I  going
to do?”  After a short time, Newell left his mother’s house.  He did not  go
home or contact the police.  The following day he called his father, and  at
about 2:45 p.m., his father took him to the police station.
      Newell was interviewed at the police station on  June  16,  2001.   As
previously noted, he told the police he heard a noise  in  the  kitchen  and
found Gillen passed out on the floor.  He claimed he did  not  know  why  he
had not called 911, just that the baby was screaming.   He  also  failed  to
tell the police about his visit to Waniorek’s house  and  his  conversations
with her and Wirtz.
      A couple of days after  Gillen’s  death,  Newell  discussed  what  had
occurred with his friend, Jim McClain.  According to  McClain,  Newell  told
him that when Gillen came home, she threw some beer on the floor, and a  few
seconds later, she fell over something.  When Newell  heard  her  fall,  “he
[came] running out, and one thing led to another, and he started giving  her
CPR, and she started vomiting.”  McClain testified that Newell said  he  did
not know if he left any marks on Gillen but  that  he  began  to  panic  and
started “hitting her back and forth trying to bring her  to.”   Newell  also
surmised that in his attempt to perform CPR “he might have came up  and  hit
[Gillen] in the neck . . . and made marks on her neck.”
      An autopsy of the victim’s body  revealed  injuries  to  the  internal
structures of Gillen’s neck and pinpoint hemorrhages on her neck, face,  and
eyelids, indications that she had  been  strangled.   Gillen  also  had  two
large bruises on her head that had caused subarachnoid  hemorrhaging.   Over
two dozen bruises were found on her hands, arms, torso, legs and inside  her
mouth that had been inflicted about the time of her death.  The injuries  to
her hands  were  interpreted  to  be  defensive  in  nature.   A  toxicology
evaluation revealed her body contained a low level of alcohol and  no  other
drugs.  The medical examiner ruled the cause of death was strangulation  and
blunt force trauma to the back of the  victim’s  head.   The  injuries  were
consistent with someone strangling the victim and banging her  head  against
the wall or floor.  The injuries were inconsistent with a simple  accidental
fall to the floor.
      Newell was subsequently arrested for Gillen’s death.   While  awaiting
trial, Newell confided in a fellow jail inmate,  Eric  Pasket,  telling  him
what happened the night Gillen died.  According to Pasket, Newell  told  him
that after Gillen returned home from the  store,  the  couple  argued  about
where she had been and how long she had been gone.  When Gillen  started  to
leave the room, Newell ran up behind her and grabbed  her,  and  then  their
heads hit.  Newell stated he “head butted her twice and  then  she  fell  to
the ground.”
      Newell’s friend, Jim McClain, testified at  trial  that  after  Newell
learned that Gillen had died  from  a  devastating  blow  to  the  head,  he
approached  McClain,  who  was  also  incarcerated  at  the  time,  with   a
fabricated story to explain Gillen’s head and hand injuries.  Newell  wanted
McClain to testify that  McClain  was  at  the  defendant’s  residence  when
Gillen returned from the store, and that Gillen got angry and  stormed  into
the kitchen with Newell right behind her.  McClain was  further  to  testify
that  he  followed  the  couple  into  the  kitchen  where  he  found   them
“passionately dancing” with Gillen’s fingers in Newell’s belt loops.   Then,
under this scenario, the “accident”  occurred  when  Gillen  backed  up  and
fell, pulling Newell on top of her.  According to  McClain,  Newell  thought
the fall would account for Gillen’s  head  injuries,  and  Gillen’s  fingers
being caught in the belt loops of Newell’s pants would explain  the  bruises
to her fingers.  Newell reportedly told McClain that “this had to become  an
accident on [Gillen’s] part or he [Newell] was  going  to  be  charged  with
first-degree murder.”  Newell threatened  to  give  prosecutors  information
about McClain if McClain refused to lie for Newell at trial.
      Newell was charged with murder in the first degree  under  alternative
theories of premeditation and felony murder.   See  Iowa  Code  §  707.2(1),
(2). A jury  convicted  Newell  of  this  charge  on  March  3,  2003.   The
defendant’s motion for new trial and  motion  in  arrest  of  judgment  were
overruled by the trial court, and he was  sentenced  to  life  imprisonment.
This appeal followed.
      II.  Evidence of Hearsay and Prior Acts.
      A.   Challenged  testimony.   Newell  challenges  the  trial   court’s
admission of testimony concerning the  relationship  between  the  defendant
and Gillen, claiming  the  evidence  constituted  inadmissible  hearsay  and
inadmissible  prior-bad-acts  evidence.   The  defendant  objected  to   the
following testimony:
      1.  Gillen’s estranged husband, Robert Gillen, Jr., testified he heard
Newell call Gillen a “dumb  f***ing  bitch.”   He  also  described  a  phone
conversation he had with Gillen just days before her death.   Gillen  seemed
distressed,  spoke  in  whispers,  and  stated  Newell  was  standing  there
listening.  Robert Gillen spoke with Gillen  again  on  the  day  she  died.
Gillen was upset and said she did not want  their  children  to  visit  that
weekend because she had found out something about  Newell  and  was  scared.
Gillen told her husband she was  planning  to  leave  Newell,  but  she  was
concerned about the baby.  She complained that she was  not  allowed  to  go
anywhere with the baby alone.
      2.  Gillen’s brother, Kevin Hamilton, testified he saw injuries on his
sister, including a knot on her head, about ten days before Gillen’s  death.
 His sister told him the defendant had head-butted her.  Hamilton  testified
Gillen complained that she and  Newell  were  not  getting  along,  and  she
expressed fears for her safety.   Hamilton  thought  Gillen  was  afraid  of
Newell.
      3.  Gillen’s sister-in-law testified that Gillen told her Newell would
not let Gillen be alone with the baby.  Gillen also  said  that  bruises  on
Gillen’s head came from being head-butted, and  from  the  context  of  this
statement, the witness inferred the  defendant  was  the  perpetrator.   The
witness further testified she observed bruises  on  the  victim’s  arm  that
looked like fingerprints.  Gillen told  the  witness  that  she  feared  the
defendant was going to do something to her.  Gillen also  expressed  concern
that she would not get her baby back if she left Newell.
      4.  Another brother of Gillen, Brian Reich, testified  Gillen  planned
to leave Newell about a month before her death, but changed her mind a  week
later.  Reich then visited his sister to talk her into leaving, but she  was
scared and crying and told him she was afraid Newell would harm her  brother
and his fiancée if she left.
      5.  Gillen’s cousin testified to her observation that when Gillen  and
Newell visited, they usually brought  the  baby,  but  when  Gillen  visited
alone, she never had the baby with her.  Gillen always  said  the  baby  was
with her mother-in-law.  She stated Gillen talked about leaving  Newell  and
acted scared just talking about doing so.  Gillen told the witness one  week
before her death that she feared for her safety because she  had  found  out
something about the defendant.
      6.  Gillen’s aunt testified that  a  week  before  her  death,  Gillen
expressed fear of the  defendant  and  said  he  was  keeping  Gillen  on  a
timetable.  Additionally, the aunt testified Gillen said she had  found  out
something about the defendant and Gillen was afraid.
      7.  Various neighbors testified about verbal arguments they heard, but
they denied seeing any physical abuse.
      8.  Jim McClain testified the defendant began treating Gillen badly  a
few weeks prior to her death and  had  begun  calling  her  names,  although
McClain never saw any physical altercations.  The night before  Gillen  died
McClain offered to take her away from Newell, but Gillen refused the  offer,
expressing fear of the defendant.
      B. Scope of review.  We review  the  defendant’s  hearsay  claims  for
errors at law.  State v.  Buenaventura,  660  N.W.2d  38,  50  (Iowa  2003).
“Hearsay . . . must be excluded as evidence at trial unless admitted  as  an
exception or exclusion under the hearsay  rule  or  some  other  provision.”
State v.  Dullard,  668  N.W.2d  585,  589  (Iowa  2003).   Subject  to  the
requirement of relevance, the district court has no discretion to  deny  the
admission of hearsay if it falls within an exception, or to admit it in  the
absence of a provision providing for admission.  Id.   Inadmissible  hearsay
is considered to be prejudicial to the nonoffering  party  unless  otherwise
established.  State v. Long, 628 N.W.2d 440, 447 (Iowa 2001).
      Rulings on the admissibility of prior-acts evidence are  reviewed  for
an abuse of discretion.  State v. White, 668 N.W.2d 850,  853  (Iowa  2003).
“[W]e find an abuse of that discretion only when a party claiming  it  shows
the discretion was exercised on grounds or for reasons clearly untenable  or
to an extent clearly unreasonable.”  State v. Powell, 684  N.W.2d  235,  238
(Iowa 2004).
      C.  Hearsay evidence.  Hearsay “is a statement, other than one made by
the declarant while testifying at . . . trial, . . . offered in evidence  to
prove the truth of the matter asserted.”  Iowa R. Evid. 5.801(c);  see  also
Dullard, 668 N.W.2d at 589-90 (stating a statement is not hearsay if  it  is
not offered to prove the truth of the  matter  asserted).   Hearsay  is  not
admissible unless it falls within  one  of  several  enumerated  exceptions.
Iowa R. Evid. 5.802; Buenaventura, 660 N.W.2d at 51.
      1.   Evidence  not  hearsay.   Much  of  the  evidence  to  which  the
defendant objects is not hearsay.  Evidence that Newell was  heard  to  call
the victim derogatory names is not hearsay because it  was  not  offered  to
prove the truth of the matter asserted,  i.e.,  that  Gillen  was  what  the
defendant  called  her.   See  also  Iowa  R.  Evid.  5.801(d)(2)   (stating
statement  “offered  against  a  party”  and  which  is  “the  party’s   own
statement” is not  hearsay).   Evidence  that  the  neighbors  heard  raised
voices and arguing is also not hearsay.  These witnesses did not testify  to
the  content  of  the  arguments,  only  that  they  occurred.    Similarly,
testimony about injuries the witnesses  observed  on  Gillen  prior  to  her
death was not hearsay because these observations are not statements made  by
a declarant other than the witness.  The same conclusion is  warranted  with
respect to the witnesses’ testimony that Gillen  appeared  scared,  nervous,
or distressed.  This evidence did not contain  any  out-of-court  statements
admitted for the  truth  of  the  matter  asserted,  only  evidence  of  the
witnesses’ observations.
      2.   Evidence  falling  within  an  exception  to  the  hearsay  rule.
Gillen’s statements to a number of persons that she was  scared  of  Newell,
that she feared for her safety, that she planned to leave Newell,  and  that
she was afraid if she left Newell, he would keep  the  baby  from  her  were
admissible under an  exception  to  the  hearsay  rule  for  “then  existing
mental, emotional, or physical condition.”  Iowa R.  Evid.  5.803(3).   Rule
5.803(3) provides for an exception to the hearsay rule for
      [a] statement of the declarant’s then existing state of mind, emotion,
      sensation, or  physical  condition  (such  as  intent,  plan,  motive,
      design, mental feeling, pain, and bodily health), but not including  a
      statement of memory or belief to prove the fact remembered or believed
      . . . .
The admission of such evidence under this exception is  dependent  upon  the
relevancy  of  the  declarant’s  then  existing  state  of  mind,   emotion,
sensation, or physical condition.   See  Buenaventura,  660  N.W.2d  at  51.
Gillen’s emotional state was relevant in this case to rebut the  defendant’s
position that he and the victim had a loving relationship, as we discuss  in
more detail below.
      Gillen’s statement to her estranged husband that Newell was  listening
to their conversation was also admissible under an exception to the  hearsay
rule.   Iowa  Rule  of  Evidence  5.803(1)  provides  that  “[a]   statement
describing or explaining an event or condition made while the declarant  was
perceiving the  event  or  condition,  or  immediately  thereafter”  is  not
excluded by the hearsay rule.   Gillen’s  statement  to  her  husband  falls
within this exception.
      3.  Erroneously admitted hearsay—prejudice  analysis.   Although  some
of the hearsay statements admitted  by  the  court  are  not  subject  to  a
readily identifiable exception, we  do  not  think  the  admission  of  this
testimony was prejudicial.  See Iowa R. Evid. 5.103(a) (“Error  may  not  be
predicated upon  a  ruling  which  admits  or  excludes  evidence  unless  a
substantial right of the party  is  affected  .  .  .  .”).   Rule  5.103(a)
requires a harmless  error  analysis  where  a  nonconstitutional  error  is
claimed.  State v. Sullivan, 679 N.W.2d 19, 29 (Iowa  2004).   To  determine
whether the error is harmless we ask:      “ ‘Does  it  sufficiently  appear
that the rights of the complaining party have been injuriously  affected  by
the error or that  he  has  suffered  a  miscarriage  of  justice?’  ”   Id.
(citation omitted).  “[W]e presume prejudice—that is,  a  substantial  right
of the defendant is affected—and reverse  unless  the  record  affirmatively
establishes otherwise.”  Id. at 30.
      In considering whether the admission of hearsay is  reversible  error,
we have held that notwithstanding the  presumption  of  prejudice  from  the
admission of such evidence, the erroneously admitted  hearsay  will  not  be
considered prejudicial if substantially the same  evidence  is  properly  in
the record.  State v. Hildreth, 582 N.W.2d 167, 170 (Iowa  1998).   That  is
the situation here with respect to Gillen’s  statements  that  Newell  would
not let her take the baby out alone and that he  had  her  on  a  timetable.
Jim McClain testified without objection  to  his  observations  of  Newell’s
controlling behavior with respect to Gillen:

      One observation of Jerry being controlling was with their infant baby.
       If . . . the baby could not stay directly with him,  he  would  leave
      the baby with his mother.  He . . . wouldn’t let Kathy take the  baby,
      because he was worried that Kathy wouldn’t come back.

Likewise, the fact that the couple was not getting  along  could  be  easily
gleaned from the admissible testimony, making Gillen’s  statements  to  that
effect cumulative and their admission harmless error.
      The most  troublesome  hearsay  statements  erroneously  admitted  are
Gillen’s assertions that a large bruise on her  head  was  caused  by  being
head-butted by the  defendant.   This  court  has  held,  however,  that  no
prejudice will be found where the evidence in  support  of  the  defendant’s
guilt is overwhelming.  See State v. Holland,  485  N.W.2d  652,  656  (Iowa
1992) (holding prejudice was not shown due to  “the  overwhelming  evidence,
albeit much of  it  circumstantial,  connecting  [the  defendant]  with  the
charged crimes”); cf. State v. Brodene, 493  N.W.2d  793,  797  (Iowa  1992)
(holding  evidentiary  error  that  violated  the   defendant’s   right   of
confrontation was harmless beyond a  reasonable  doubt  where  “other  clear
evidence overwhelmingly established [the defendant’s] guilt”).   Considering
the evidence that was properly admitted, we think the  record  affirmatively
establishes a lack of prejudice in this case.
      The medical evidence showed Gillen’s death was not accidental and that
she died from being strangled and beaten.  Newell was the only  other  adult
at home at the time of Gillen’s death, but he did not call  for  assistance.
Neighbors heard arguing and screaming just before  they  saw  the  defendant
speeding away from the residence in  his  car.   Subsequently,  Newell  gave
several different versions of what had  happened,  lamented  to  family  and
friends that he was probably in trouble and might be  charged  with  murder,
and tried to convince his friend, Jim McClain, to lie  about  what  happened
on the night of Gillen’s death.  Moreover, one of the explanations given  by
the defendant for the victim’s injuries was his statement to his  jail  mate
that just prior to Gillen’s death Newell “head  butted  [Gillen]  twice  and
she fell to the  floor.”   Given  the  strength  of  the  properly  admitted
evidence, including Newell’s own admissions, we think the defendant was  not
injuriously affected by  the  hearsay  testimony  that  he  had  head-butted
Gillen on a prior occasion, nor did he suffer a miscarriage of justice  from
the admission of this  evidence.   The  State  has  established  a  lack  of
prejudice.
      D.  Prior-acts evidence.  Rule 5.404(b) governs the admissibility of a
person’s other crimes, wrongs, or acts.  This rule provides:

      Evidence of other crimes, wrongs, or acts is not admissible  to  prove
      the character of the person in order to show that the person acted  in
      conformity therewith.   It  may,  however,  be  admissible  for  other
      purposes, such as proof of motive, opportunity,  intent,  preparation,
      plan, knowledge, identity, or absence of mistake or accident.

Iowa R. Evid. 5.404(b).  In order to be admissible,  the  evidence  must  be
probative of “ ‘ “some fact or element in issue other than  the  defendant’s
criminal disposition.” ’ ”  State v.  Taylor,  689  N.W.2d  116,  123  (Iowa
2004) (citation omitted).  “Moreover, . . . when prior-bad-acts evidence  is
offered ‘to establish an ultimate inference of mens rea,  the  court  should
require the prosecutor to  “articulate  a  tenable  noncharacter  theory  of
logical relevance.”’ ”  Id. at 123-24  (citation  omitted).   See  generally
Iowa R. Evid. 5.401 (stating evidence is relevant if it  has  “any  tendency
to  make  the  existence  of  any  fact  that  is  of  consequence  to   the
determination of the action more probable or less probable than it would  be
without the evidence”).  “If a court determines prior-bad-acts evidence  ‘is
relevant to a legitimate factual issue  in  dispute,  the  court  must  then
decide if its probative value is substantially outweighed by the  danger  of
unfair prejudice to the defendant.’ ”  Taylor, 689 N.W.2d at  124  (citation
omitted). Evidence that is unfairly prejudicial is evidence that has  “  ‘an
undue tendency to suggest decisions on an improper  basis  commonly,  though
not necessarily, an emotional one.’ ”  State v.  Plaster,  424  N.W.2d  226,
231 (Iowa 1988) (citation omitted); accord State v.  Rodriquez,  636  N.W.2d
234, 240 (Iowa 2001).  Because  the  weighing  of  probative  value  against
probable prejudice is not an exact science, we give a great deal  of  leeway
to the trial judge who must make this judgment call.  Rodriquez, 636  N.W.2d
at 240.
      The testimony outlined above showed the following prior  acts  by  the
defendant: he called the victim derogatory names,  he  head-butted  her,  he
inflicted bruises on her arms, he listened to her  phone  conversation  with
her estranged husband, he would not let  her  go  anywhere  alone  with  the
baby, and he kept Gillen on a timetable.  We must  first  determine  whether
this evidence is relevant to a legitimate issue in the  case  other  than  a
general propensity by the defendant to commit wrongful  acts.   Taylor,  689
N.W.2d at 124.  The defendant argues he did not raise a defense  of  mistake
or accident, and therefore, evidence that he had intentionally  hurt  Gillen
in the past was irrelevant.
      An essential element of first-degree murder  is  malice  aforethought.
See State v. Lee, 494 N.W.2d 706, 707 (Iowa 1993);  see  also  Iowa  Code  §
707.1 (“A person who kills another person with  malice  aforethought  either
express or implied commits murder.”).  “Malice aforethought” is  defined  as
“‘a fixed purpose or design to do some physical harm to another that  exists
before the act is committed.’ ”  Buenaventura, 660 N.W.2d  at  49  (citation
omitted).   “Because  this  element  is  a  state  of  mind,  circumstantial
evidence is generally used to prove malice.”  Id.  We have  held  the  prior
relationship between the defendant and the victim, including  bad  feelings,
quarrels, and physical acts, is a circumstance that may be  shown  to  prove
the defendant’s state of mind and motivation at the time of the crime.   See
Taylor, 689 N.W.2d at 128  (stating  “defendant’s  prior  acts  of  violence
toward his wife [were] relevant to his motive and intent on the day [of  the
alleged  assault]”);  Buenaventura,  660  N.W.2d  at  49  (same);  State  v.
Kellogg, 263 N.W.2d 539, 542 (Iowa 1978) (same).
      The  court’s  instruction  to  the  jury  defining  this  element  was
consistent with these legal principles.  The jury was instructed:

            “Malice” is a state of mind which leads one to intentionally  do
      a wrongful act to the injury of another or in disregard of the  rights
      of another out of actual hatred, or with an evil or unlawful  purpose.
      It may be established by evidence of actual hatred, or by proof  of  a
      deliberate or fixed intent to do injury.  It may  be  found  from  the
      acts and conduct of the Defendant and the  means  used  in  doing  the
      wrongful and injurious act.  Malice requires  only  such  deliberation
      that would make a person appreciate and understand the nature  of  the
      act and its consequences, as distinguished from an  act  done  in  the
      heat of passion.
            “Malice aforethought” is a fixed purpose or design  to  do  some
      physical harm to another which exists before the act is committed.  It
      does not have to exist for any particular length of time.
            Although motive is not a necessary element of  murder,  lack  of
      motive may be considered in determining whether  the  Defendant  acted
      with malice aforethought.

      We think the evidence challenged  here  was  highly  relevant  to  the
issue of malice aforethought because it showed the relationship between  the
defendant and the victim and  was  pertinent  to  the  defendant’s  possible
motive for beating and strangling Gillen.   If  Newell  and  Gillen  had  an
acrimonious relationship,  it  is  more  probable  that  Newell  acted  with
malice—a fixed purpose to do harm—at the time  of  Gillen’s  death  than  if
they had a loving relationship.  Similarly, if  Newell  was  possessive  and
controlling of Gillen, it is more likely that he acted with a fixed  purpose
to do physical harm to her when she  returned  home  after  an  inordinately
long and unexplained absence.   In  considering  the  admission  of  similar
evidence in a prosecution  for  domestic  abuse  assault  and  burglary,  we
stated:


      [T]he defendant’s prior conduct directed to the  victim  of  a  crime,
      whether loving or violent, reveals the emotional relationship  between
      the  defendant  and  the  victim  and  is  highly  probative  of   the
      defendant’s probable motivation and intent in subsequent situations.
            The most obvious example of the legitimate use of prior-bad-acts
      evidence is the admission of evidence of a defendant’s prior  assaults
      of a victim in a prosecution  of  the  defendant  for  the  subsequent
      murder of the victim.   Courts have admitted such evidence to show the
      defendant’s motive and intent with respect to the actions giving  rise
      to the charged crime when intent is disputed.

Taylor, 689 N.W.2d at 125 (citations omitted); accord White, 668  N.W.2d  at
855 (finding no abuse  of  discretion  in  admission  of  defendant’s  prior
assault on victim in prosecution  for  first-degree  kidnapping  and  first-
degree burglary);  State  v.  Emerson,  375  N.W.2d  256,  260  (Iowa  1985)
(admitting evidence of  prior  quarrels  between  defendant  and  victim  in
prosecution of defendant for first-degree murder); Kellogg,  263  N.W.2d  at
542 (same).
      Contrary to the defendant’s claim on appeal, we think the  element  of
intent—malice aforethought—was contested at trial.  Newell told  the  police
he  had  a  loving  relationship  with  the  victim,  and  several  of   the
defendant’s versions of what happened that night  portrayed  Gillen’s  death
as accidental. In closing arguments, defense  counsel  repeatedly  suggested
that the relationship between the defendant and  Gillen  was  amicable,  and
that the State had failed to establish the defendant’s malice  or  ill  will
toward the victim.  Because the defendant’s intent to do harm to Gillen  was
in dispute and because  the  evidence  in  question  was  probative  of  the
defendant’s relationship with Gillen and his  possible  motive  for  harming
her,  the  State  articulated  a  tenable  noncharacter  theory  of  logical
relevance to support admission of this evidence.
      We turn to the question of prejudice: is the probative value  of  this
evidence substantially outweighed by its prejudicial effect?   In  balancing
probative value against prejudicial effect, the court considers

      the need for the evidence  in  light  of  the  issues  and  the  other
      evidence available to the prosecution, whether there  is  clear  proof
      the defendant committed the prior bad acts, the strength  or  weakness
      of the evidence on the relevant issue, and the  degree  to  which  the
      fact finder will be prompted to decide the case on an improper basis.

Taylor, 689 N.W.2d at 124.
      Our examination  of  the  record  shows  a  need  for  the  challenged
evidence.  Although there was strong  circumstantial  evidence  that  Newell
was the person who committed the act that  killed  Gillen,  the  prosecution
had  the  additional  burden  to  prove  the  defendant  acted  with  malice
aforethought, or ill will, at the time of Gillen’s death.   The  only  other
evidence indicating malice was the manner in which Gillen  was  killed.   We
think evidence of the abusive and controlling  nature  of  the  relationship
between Newell and Gillen was strong  evidence  of  Newell’s  emotional  and
mental state at the time of Gillen’s  death,  as  well  as  his  motive  for
murdering the mother of his child.  Moreover, we agree with our  observation
in Taylor that a defendant should not  be  allowed  to  have  his  guilt  or
innocence determined “ ‘on a false presentation that his  and  the  victim’s
relationship  [was]  peaceful  and  friendly.’  ”   Id.  at  130   (citation
omitted).  Here, the defense sought to establish that  Newell  loved  Gillen
and bore her no ill will.  Therefore, the State needed,  and  was  entitled,
to rebut this argument with evidence to the contrary.
      “In assessing whether there is clear proof of prior misconduct, it  is
not required that the prior act be established beyond  a  reasonable  doubt,
nor is corroboration necessary.”  Id.  “There simply needs to be  sufficient
proof to ‘ “prevent  the  jury  from  engaging  in  speculation  or  drawing
inferences based on mere suspicion.” ’ ”   Id.  (citation  omitted).   Here,
there was clear proof of name-calling in that  several  witnesses  to  these
acts confirmed such  occurrences.   Similarly,  various  witnesses  observed
signs of physical abuse and given the context of these observations and  the
victim’s well-documented fear of the defendant, we do  not  think  the  jury
would have to speculate  that  Gillen’s  injuries  were  caused  by  Newell.
Finally, evidence of Newell’s controlling behavior with  respect  to  Gillen
also came from  several  sources.   We  think  there  was  clear  proof  the
defendant committed the prior acts attributed to him.
      Balanced against the need for the evidence, its reliability,  and  its
probative strength is the danger of unfair  prejudice.   In  evaluating  the
prejudice factor, we consider the likelihood that  the  prior-acts  evidence
will prompt the jury to base its decision on an improper emotional  response
toward the defendant.  Id.  Certainly the evidence of Newell’s  name-calling
and  violence  reflected  adversely  on  him  and  probably  made   him   an
unsympathetic character in the jury’s eyes.  Nonetheless, this evidence  was
essential to the truth-seeking function of the jury.   See  id.  (stating  “
‘[a] trial is a search for the truth,’ ” and thus,  defendant’s  other  acts
are admissible to show his  true  relationship  with  the  victim  (citation
omitted)).  Therefore, the  trial  court  was  well  within  the  bounds  of
permissible discretion in determining any danger  of  unfair  prejudice  did
not substantially outweigh  the  high  probative  value  of  the  challenged
evidence.   See  White,  668  N.W.2d  at  855  (finding  trial  court  acted
reasonably in admitting evidence of  defendant’s  prior  assault  of  victim
notwithstanding that “the jury could have been swayed  by  unfair  prejudice
from the admission of the evidence”).
      III.  Testimony Concerning Statements Made by Mary Culbert.
      A.  The defendant’s claim.  The defendant objected to the admission of
the recording of Culbert’s 911 call and the  testimony  of  four  witnesses,
all of which revealed statements made by Culbert on the night  Gillen  died.
Newell  claims  the  admission  of  his  mother’s  out-of-court   statements
violated the Confrontation Clause because Culbert had died by  the  time  of
trial; thus, her statements were not subject  to  cross-examination  by  the
defense. We review claims based on the Confrontation Clause de novo.   State
v. Hallum, 606 N.W.2d 351, 354 (Iowa 2000).  The defendant  also  challenges
these statements as irrelevant and  inadmissible  hearsay.   We  review  the
latter claims for correction  of  errors  of  law.   See  Buenaventura,  660
N.W.2d at 50.
      Much of the testimony to which the defendant objected was admitted  by
the trial  court  under  an  exception  to  the  hearsay  rule  for  excited
utterances.  See Iowa R. Evid. 5.803(2) (excluding  from  the  hearsay  rule
“[a] statement relating to a startling event or  condition  made  while  the
declarant was under  the  stress  of  excitement  caused  by  the  event  or
condition”).  Although we base our decision on  a  different  rationale,  we
find no reversible error in the trial court’s ruling.  See DeVoss v.  State,
648 N.W.2d 56,  62-63  (Iowa  2002)  (stating  appellate  court  can  affirm
evidentiary ruling on any ground raised on appeal).  As  we  discuss  below,
we conclude (1) the challenged testimony was admissible because it  was  not
hearsay or, (2) to the extent it did constitute hearsay, its  admission  was
not  prejudicial.   Under  both  conclusions,  the  court’s   allowance   of
Culbert’s out-of-court statements did not violate the Confrontation Clause.
      B. General legal  principles.   The  Sixth  Amendment  to  the  United
States Constitution guarantees that “[i]n  all  criminal  prosecutions,  the
accused shall enjoy the right . . . to  be  confronted  with  the  witnesses
against him.”  U.S. Const. amend. VI; see also Pointer v.  Texas,  380  U.S.
400, 406, 85 S. Ct. 1065, 1069, 13 L. Ed. 2d  923,  927-28  (1965)  (stating
this  procedural  guarantee  is  applicable  to  state  prosecutions).   Two
important policies underlie the  Confrontation  Clause:  “a  preference  for
face-to-face confrontation at trial and  the  right  of  cross-examination.”
State v.  Castaneda,  621  N.W.2d  435,  444  (Iowa  2001).   Although  this
constitutional provision generally protects the same values as  the  hearsay
rule, “the Confrontation Clause bars the admission  of  some  evidence  that
would otherwise be admissible under an exception to the hearsay rule.”   Id.
 On the other hand, the Confrontation Clause, like the  hearsay  rule,  does
not prevent “the use of  testimonial  statements  for  purposes  other  than
establishing the truth of the matter  asserted.”   Crawford  v.  Washington,
541 U.S. 36, 59 n.9, 124 S. Ct. 1354, 1369 n.9, 158 L. Ed. 2d 177,  198  n.9
(2004).
      The United States Supreme Court recently discussed the  parameters  of
the Confrontation Clause in Crawford.  While not  confining  this  provision
to testimonial statements of out-of-court declarants,  the  Court  concluded
“testimonial hearsay” was the “primary object” of the Sixth Amendment.   Id.
at 53, 60, 124 S. Ct. at 1365, 1370, 158 L. Ed. 2d at  194,  199.   Included
in  the  category  of  testimonial  statements  is  “prior  testimony  at  a
preliminary hearing, before a grand jury, or at a former trial . . . and  to
police interrogations.”  Id. at 68, 124 S. Ct. at 1374, 158  L.  Ed.  2d  at
203.   The  Court  suggested  that  a  casual  or  off-hand  remark  to   an
acquaintance may be excludable under the hearsay  rule,  but  “bears  little
resemblance to the civil-law  abuses  the  Confrontation  Clause  targeted.”
Id. at 51, 124 S. Ct. at 1364, 158 L. Ed. 2d at 192.
      More importantly, the Court differentiated the test for  admissibility
depending  upon  whether  the   out-of-court   statement   is   testimonial.
Testimonial statements may be admitted only if the declarant is  unavailable
and  only  if  the  defendant  has  had  a  prior  opportunity  for   cross-
examination.  Id. at 68, 124 S. Ct. at 1374, 158 L. Ed. 2d at 203.   As  for
nontestimonial hearsay, the Court observed that it would be consistent  with
“the Framers’ design to afford the States flexibility in  their  development
of hearsay law” to “exempt[ ]  such  statements  from  Confrontation  Clause
scrutiny altogether” or to  apply  the  principles  set  forth  in  Ohio  v.
Roberts, 448 U.S. 56, 100 S. Ct. 2531, 65 L. Ed. 2d 597  (1980).   Id.   The
Court summarized Roberts as holding the Confrontation Clause “does  not  bar
admission  of  an  unavailable  witness’s  statement  against   a   criminal
defendant if the statement bears ‘adequate “indicia of reliability,” ’  ”  a
test met when the evidence “either falls within  a  ‘firmly  rooted  hearsay
exception’ or bears ‘particularized guarantees of trustworthiness.’  ”   Id.
at 40, 124 S. Ct. at 1358, 158 L. Ed. 2d at 186 (quoting Roberts,  448  U.S.
at 66, 100 S. Ct. at 2531, 65 L. Ed. 2d  at  608).   The  Court  was  clear,
however, that the Roberts test was not applicable  to  testimonial  hearsay.
Id. at 68, 124 S. Ct. at 1374, 158 L. Ed. 2d at 203.
      Like the erroneous admission of hearsay, the admission of evidence  in
violation of the Confrontation Clause does  not  mandate  reversal:  if  the
State establishes that the error was harmless  beyond  a  reasonable  doubt,
reversal is not required.  See State v. Brown, 656  N.W.2d  355,  361  (Iowa
2003).  To determine harmlessness, the inquiry “is not whether, in  a  trial
that occurred without the error, a guilty verdict  surely  would  have  been
rendered, but whether the guilty verdict actually  rendered  in  this  trial
was surely unattributable to the error.”  Sullivan v.  Louisiana,  508  U.S.
275, 279, 113 S. Ct. 2078, 2081, 124 L. Ed. 2d  182,  189  (1993).   Several
factors are relevant in assessing whether error was harmless:

      “[T]he importance of the witness’ testimony in the prosecution’s case,
      whether the testimony was  cumulative,  the  presence  or  absence  of
      evidence corroborating or contradicting the testimony of  the  witness
      on  material  points,  the  extent  of  cross  examination   otherwise
      permitted, and, of course, the overall strength of  the  prosecution's
      case.”

Brown, 656 N.W.2d at 361-62 (citation omitted).
       C.   Nontestimonial  statements.    We   will   first   discuss   the
nontestimonial statements made by Culbert that  were  introduced  at  trial.
To determine whether this evidence violated  the  Confrontation  Clause,  we
must decide (1) whether Culbert’s  statements  were  offered  to  prove  the
truth of the matter asserted, and if so, (2) whether these  statements  fall
within a “firmly rooted hearsay exception”  or  bear  other  “particularized
guarantees of trustworthiness.”  Roberts, 448 U.S. at  66,  100  S.  Ct.  at
2539, 65 L. Ed. 2d  at  608.   If  we  conclude  the  admission  of  any  of
Culbert’s nontestimonial statements violated the Sixth  Amendment,  we  must
then consider the question of prejudice.
      1.  The 911 call.  In the 911 tape recording,  Culbert  asked  for  an
ambulance, and stated her daughter-in-law had fallen and  was  unresponsive.
Culbert also indicated  she  was  present  when  Gillen  fell,  stating  her
daughter-in-law had been drinking quite heavily.
      The statements made  by  Culbert  in  this  tape  recording  were  not
offered to proof the truth of the matter asserted.  Rather, the  prosecution
sought to prove that Culbert  attempted  to  cover-up  for  her  son  almost
immediately.  Therefore, the probative value of these statements  rested  on
the fact they were made, not on whether her story about  what  happened  was
true.  Because Culbert’s statements in the 911 call were not hearsay,  their
admission did not violate the Confrontation Clause.
      2.  Scroggins’ testimony.  Newell’s  sister  and  Culbert’s  daughter,
Christine Scroggins, testified that Culbert called her from  Newell’s  house
and told her Gillen was dead.  She said  Culbert  was  “frantic,”  “freaking
out,” “in an uproar,” and  “upset.”   Culbert  told  Scroggins  to  come  to
Newell’s house.  According to  Scroggins,  Culbert  “kept  saying  something
about a dinner plate.”  The  defendant  claims  he  was  prejudiced  by  the
erroneous  admission  of  Culbert’s  statement  that  Gillen  was  dead  and
Culbert’s reference to “something about a dinner plate.”
      We do not consider whether either of these statements is  inadmissible
hearsay because,  even  if  they  are,  their  admission  cannot  be  deemed
prejudicial to Newell.  Evidence that  the  victim  was  dead  when  Culbert
called 911 was already in the  record  from  numerous  sources.   Therefore,
Scroggins’ testimony to the same fact was not  prejudicial.   See  State  v.
Whitfield, 315 N.W.2d 753, 755 (Iowa 1982) (holding that when same  evidence
is already in the record, admission of hearsay  is  not  prejudicial).   The
second objectionable statement was elicited as follows:

      Q.  .  .  .  when—you  were  trying  to  calm  [Culbert]  down,  she’s
      hysterical, did she say anything to you about what happened?
      A.  She kept saying something about a dinner plate.

At this point, the defendant’s objection to any further  testimony  on  this
matter was sustained.  Newell claims on appeal Scroggins’ testimony  implied
there had been  a  fight  between  himself  and  Gillen  that  involved  the
throwing of dinner plates.  We think the  solitary  reference  to  a  dinner
plate  was  so  vague  and  nonspecific  that  it   cannot   be   considered
prejudicial.
      3.  Jones’s testimony.  Culbert’s friend, Donna Jones, testified  that
Culbert was at Jones’s house the night  Gillen  died.   She  testified  that
Jonathan Newell called Jones’s house looking  for  Culbert.   After  Culbert
spoke with her son, Culbert tossed the phone down, stated she had to  leave,
and said something to the effect “Kathy” and “dead.”  Jones  also  testified
that a few days later she and Culbert disagreed about what Culbert had  told
Jones at the time of the phone call from Jonathan.
      Culbert’s statement when she left Jones’s house is  too  vague  to  be
prejudicial.  It is not clear whether Culbert  thought  Gillen  was  already
dead or whether she had been told Gillen might be dead.   In  either  event,
these statements were cumulative of other admissible  evidence  that  Gillen
was or might have been dead when  Newell  attempted  to  reach  his  mother.
Therefore, Newell was not prejudiced by Jones’s testimony that Culbert  said
“Kathy” and “dead.”  Jones’s testimony that she and Culbert disagreed  about
what Culbert told Jones on the  night  of  Gillen’s  death  is  clearly  not
hearsay.  Any implied statement made by Culbert in  her  later  conversation
with Jones was offered to demonstrate Culbert’s efforts to cover-up for  her
son, not to prove the truth of what she said.
      4.   Hamlin’s  testimony.   Culbert’s  sister,  Evelyn  Hamlin,   also
testified. She said that on the night Gillen died, she was  called  to  come
to Newell’s house to help Culbert.  According to Hamlin,  Culbert  was  very
distressed, was crying, and kept saying “it’s not true.”   Hamlin  testified
that Culbert told her  that  Newell  had  told  Culbert  that  he  had  been
watching the baby, that Gillen went out to get food, that when  Gillen  came
back Gillen was mad at the  defendant  and  threw  some  sandwiches  on  the
table, saying “there’s your food,” and headed for the back  door.   As  with
the testimony of Jones, the prior statements made by  Culbert  were  offered
to show that they were made, not to prove the truth of the matter  asserted.
 Because they  are  not  hearsay,  their  admission  does  not  violate  the
Confrontation Clause.
      D.  Testimonial statements.  We now  consider  the  testimony  of  two
police officers who talked with Culbert on the night of Gillen’s death.
      1.  Officer Chapman’s testimony.   Officer  Joseph  Chapman  testified
that when he was at the scene of the crime, Culbert  told  him  that  Newell
had asked her to check on  Gillen  because  Gillen  was  not  feeling  well.
Culbert told the officer that she had been with Gillen  for  about  one-half
hour prior to the incident.  She further stated that  although  Culbert  was
at the house when Gillen fell, Newell was not.  The officer  testified  that
at the time these statements were made, Culbert  was  very  excited  and  at
times “temporarily out of control” emotionally.  The  court  instructed  the
jury that Culbert’s statements to officer Chapman were not to be  considered
for the truth of the matter asserted.
      Notwithstanding the testimonial nature of Culbert’s statements to  the
officer, their admission does not violate the Confrontation  Clause  because
the statements are not hearsay.  Culbert’s explanation of what  happened  on
the evening of Gillen’s death was not offered to  prove  that  what  Culbert
stated actually occurred, but rather to show that  Culbert  was  aware  that
something had happened between her  son  and  the  victim  and  Culbert  was
trying to protect him by offering an exonerating picture of the event.
      2.  Detective Moller.  The  final  witness  testifying  to  statements
made by Culbert was Detective  Lynn  Moller.   The  detective  testified  to
essentially the same statements and observations  as  did  officer  Chapman.
In addition, detective Moller spoke with Culbert a  second  time,  after  he
had returned from looking  for  Newell.   During  the  second  conversation,
Culbert changed her story.  She admitted she had not spent time with  Gillen
that evening, and  that  Gillen  was  already  on  the  floor  when  Culbert
arrived.  Culbert asserted she lied because she was afraid Newell  would  be
in trouble for not calling 911.
      The detective’s recitation of Culbert’s first version  of  events  was
not hearsay because Culbert’s statement that she was with  Gillen  prior  to
and at the time of Gillen’s collapse was not offered to prove the  truth  of
these assertions.  In contrast, Culbert’s subsequent  version  of  what  had
occurred was offered to prove the truth  of  the  matter  asserted,  namely,
that Gillen was already injured, if  not  dead,  when  Culbert  arrived  and
Culbert was worried her son would be  in  trouble  for  leaving  the  scene.
This information was, however, merely cumulative of Newell’s own  statements
to the police that Gillen collapsed while he was home and that he  tried  to
revive her, panicked, and left.  See Brown, 656 N.W.2d at  361  (finding  no
prejudice from admission of  evidence  in  violation  of  hearsay  rule  and
Confrontation Clause where same evidence  was  in  the  record  through  the
defendant’s own admissions to  jail  mates).   Moreover,  these  facts  were
essentially undisputed at trial.  See In re Detention of Palmer, 691  N.W.2d
413, 422 (Iowa 2005) (“No prejudice  results  from  erroneous  admission  of
evidence on an issue that is undisputed.”).  The dispute at  trial  centered
not on the fact of Newell’s involvement in Gillen’s  death,  which  was  the
critical fact contained in Culbert’s later statement to the  detective;  the
dispute in the case centered on the nature of Newell’s  involvement.   Under
these  circumstances,  we  think  the  jury’s  guilty  verdict  was   surely
unattributable to this evidence, and therefore, its admission  was  harmless
beyond a reasonable doubt.
      IV.  Testimony of Expert on Domestic Violence.
      A.  Challenged testimony.  Over the defendant’s objection,  the  court
allowed the testimony of Lieutenant David Taylor, who  had  previously  been
an investigator for the  domestic  abuse  response  team  for  three  years.
Taylor explained the issues  of  power  and  control  involved  in  domestic
violence.  He stated the use of intimidation, emotional abuse, isolation  of
the victim, blaming the victim, using children  as  pawns,  economic  abuse,
coercion,  and  threats  are  aspects  of  abusive  domestic  relationships,
although not all attributes are present in  every  situation.   Taylor  also
described  the  continuum  of  violence  and  the  potential  that  domestic
violence will escalate.  Finally, he testified about the reasons women  stay
in abusive and violent relationships. The witness was not asked, nor did  he
testify, about the relationship between Newell and Gillen or any  aspect  of
the case at hand.
      The defendant challenged Taylor’s qualifications to give the described
testimony.  He also claimed that  the  authority  upon  which  this  witness
relied included materials prepared for law enforcement  training  that  were
not subject to peer review.  In addition, Newell  argued  the  evidence  was
irrelevant and to the extent it was  relevant,  its  prejudicial  effect  as
thinly disguised propensity evidence outweighed its probative value.
      B.  Applicable legal principles.  We review the  admission  of  expert
testimony for an abuse of discretion.  Rodriquez, 636 N.W.2d  at  245.   The
court’s ruling is considered in light of  “  ‘[t]he  general  rule  in  this
jurisdiction . . . of liberality in the admission of  opinion  evidence.’  ”
Id. (citation omitted).  We are also guided by our rules of evidence:

      If scientific, technical, or other specialized knowledge  will  assist
      the trier of fact to understand the evidence or to determine a fact in
      issue,  a  witness  qualified  as  an  expert  by  knowledge,   skill,
      experience, training, or education may testify thereto in the form  of
      an opinion or otherwise.

Iowa R. Evid. 5.702.
      C.  Discussion.  Contrary to the  defendant’s  assertion,  Taylor  was
sufficiently qualified in the area  of  his  testimony.   He  had  extensive
training in domestic abuse, met with approximately 500 victims  of  domestic
violence a year in his capacity as an investigator, trained  others  in  the
area of domestic abuse, and received two awards for his work  with  domestic
violence victims.  See State v. Belken, 633  N.W.2d  786,  800  (Iowa  2001)
(stating witness’s education, training and experience qualified  him  as  an
expert; witness’s technical ability went to weight  of  his  testimony,  not
its admissibility).  The  defendant’s  criticism  of  the  authorities  upon
which Taylor relied is also an insufficient basis upon which  to  disqualify
Taylor as an expert.  These authorities were not  shown  to  be  unreliable,
and the jury could consider the lack  of  peer  review  in  determining  the
weight to give to Taylor’s testimony.  See State v. Kolbet, 638 N.W.2d  653,
660 (Iowa 2001) (stating reliability of expert’s opinions is  for  the  jury
to determine).
      We  also  think  Taylor’s  testimony  was  relevant.   Newell  claimed
Gillen’s injuries were accidental.  In addition, his  attorney,  in  closing
argument, tried to portray Gillen and Newell’s relationship  as  loving  and
caring, and vehemently disputed any evidence of  malice.   As  we  discussed
earlier in connection with the prior-acts evidence, an understanding of  the
relationship between Gillen and Newell was essential to the  jury’s  ability
to determine Newell’s state of mind on the night of Gillen’s death and  what
might have motivated him to beat  and  strangle  her.   Cf.  Rodriquez,  636
N.W.2d at 246 (upholding admission of expert on  battered  women’s  syndrome
in  prosecution  of  defendant  for  the  assault  and  kidnapping  of   his
girlfriend); State v. Gettier, 438 N.W.2d 1, 5-6  (Iowa  1989)  (finding  no
abuse of discretion  in  admission  of  expert  testimony  concerning  post-
traumatic stress disorder in sexual-abuse prosecution).
      We  also  conclude  the  probative  value  of  this  evidence  is  not
substantially outweighed by its  prejudicial  effect.   See  Iowa  R.  Evid.
5.403 (allowing court to exclude relevant evidence “if its  probative  value
is substantially outweighed  by  the  danger  of  unfair  prejudice”).   The
expert’s explanation of the dynamics of domestic violence was  not  unfairly
prejudicial to the defendant  as  required  by  rule  5.403.   The  expert’s
testimony would have an adverse effect  on  Newell’s  defense  only  to  the
extent it had probative value.  The expert never testified that  Gillen  was
a victim of domestic violence.  That determination was  left  to  the  jury.
Consequently, only if the jury decided the relationship between  Newell  and
Gillen could be explained or aptly interpreted by the  principles  described
by the expert would the expert’s testimony be prejudicial to the  defendant.
 But this type of prejudice is inherent in any evidence  that  is  probative
of a material issue.  Therefore, we do not think this evidence was  unfairly
prejudicial so as to outweigh its value as probative evidence.
      V.  Instructions on Malice Aforethought.
      The defendant claims the trial court erred  in  instructing  the  jury
that malice could be inferred from the commission of one of  the  underlying
felonies that served as the  basis  for  submission  of  the  felony  murder
alternative   of   the   first-degree   murder   charge:   willful   injury,
participation  in  assault  causing  serious  injury,  and  domestic   abuse
assault.  He argues this instruction essentially told the jury that  it  was
not required to find malice aforethought if its verdict  rested  on  one  of
the felony alternatives.  Newell also contends the inference of malice  from
the commission of these particular felonies is improper  because  malice  is
not an element in any of these crimes and specific  intent  is  required  in
only one of them.
      We review  the  defendant’s  claim  of  instructional  error  for  the
correction of errors of law.  See State v. Piper, 663 N.W.2d 894, 915  (Iowa
2003).  In  addition,  in  evaluating  the  correctness  of  any  particular
instruction, we do not consider it in isolation, but in the context  of  all
the instructions.  See State v. Fintel,  689  N.W.2d  95,  104  (Iowa  2004)
(“Jury  instructions  are  not  considered  separately;   they   should   be
considered as a whole.”).
       The  marshalling  instruction  for  the  first-degree  murder  charge
provided in pertinent part:

      The State must prove all of the following elements of  Murder  in  the
      First Degree:


      1.    That on or  about  June  15,  2001,  the  defendant  hit  and/or
           strangled Kathleen Gillen.


      2.    Kathleen Gillen died as a result of being hit and/or strangled.


      3.    The Defendant acted with malice aforethought.


      4.(a) The Defendant acted willfully, deliberately, premeditatedly, and
           with a specific intent to kill Kathleen Gillen.


                                     OR


      4.(b) The Defendant was participating in the offense of Willful Injury
           as explained in Instruction No. 29.


                                     OR


      [The instruction continues with other alternatives for  felony  murder
      based  on  participation  in  assault  causing  serious   injury   and
      participation in domestic abuse assault.]

(First emphasis  added.)   Contrary  to  the  defendant’s  assertions,  this
instruction clearly told the jury  that  it  was  required  to  find  malice
aforethought  under  any  of  the  alternatives  for  first-degree   murder.
Furthermore, the instruction defining  “malice”  and  “malice  aforethought”
included the following statement:  “[Malice] may be found from the acts  and
conduct of the Defendant and the  means  used  in  doing  the  wrongful  and
injurious act.”  Consistently with this instruction,  the  court  also  told
the jury in another instruction: “You may, but are not  required  to,  infer
malice from the commission of a Willful Injury or  Assault  Causing  Serious
Injury or Assault Domestic Abuse which results in death.”
      We do not think the latter instruction, stating  that  malice  may  be
inferred from the specified conduct, is the equivalent of telling  the  jury
that malice need not be present at  all.   Here,  before  the  jurors  could
convict the defendant of first-degree murder, they  were  required  to  find
that the defendant acted  with  “a  fixed  purpose  or  design  to  do  some
physical harm to [Gillen].”  The commission of a forcible felony was  simply
one factor from which the defendant’s state of  mind  could  be  determined.
Contrary to the defendant’s argument, the  instructions  did  not  eliminate
the requirement of malice aforethought under the felony murder  alternatives
of first-degree murder.   The instructions simply informed the jury  of  the
relevancy of the defendant’s actions to the existence of malice.   Moreover,
there is no  requirement  that  the  underlying  felony  include  malice  or
specific intent as an element in order for the defendant’s criminal  conduct
to be relevant to the issue of malice.  See  State  v.  Oliver,  341  N.W.2d
744, 748 (Iowa 1983).  We hold  the  trial  court  properly  instructed  the
jury.
      VI.  Domestic Abuse Assault as Predicate Offense  for  Felony  Murder.
The defendant claims error in the  trial  court’s  refusal  to  dismiss  the
felony murder charge based on  third-offense  domestic  abuse  assault.   He
argues third-offense domestic abuse assault is a  felony  only  due  to  the
fact that the offense was committed  at  least  three  times;  without  this
prior-crimes sentencing enhancement, domestic abuse is a  misdemeanor.   See
Iowa Code § 708.2A(2)(b) (“On a first offense  of  domestic  abuse  assault,
the person commits . . . [a] serious  misdemeanor,  if  the  domestic  abuse
assault causes bodily injury or mental illness.”), .2A(4) (“On  a  third  or
subsequent offense of domestic abuse assault, a person commits a  class  “D”
felony.”).  Newell contends the legislature did not  intend  that  a  felony
murder be based on a misdemeanor offense  for  which  repeat  offenders  are
sentenced as felons.  See id. §§ 707.2(2) (stating a person  commits  murder
in  the  first  degree  if  “[t]he  person  kills   another   person   while
participating in  a  forcible  felony”),  702.11(1)  (defining  a  “forcible
felony” to include a felonious assault).  We need  not  address  this  issue
because  Newell  suffered  no  prejudice  from  the   submission   of   this
alternative.  See Rodriquez, 636 N.W.2d at  239  n.1  (refusing  to  reverse
defendant’s convictions based on alleged error in  submission  of  attempted
murder charge because defendant was not  prejudiced:  he  was  acquitted  of
attempted murder charge and had not established that the challenged  offense
“infected his convictions of the other offenses”).
      To avoid possible prejudice from proof of Newell’s  prior  convictions
for domestic abuse assault, the trial court decided to  submit  the  “third-
offense” element of third-offense domestic abuse assault to  the  jury  only
if the jury convicted the defendant of first-degree murder and only  if  the
jury relied solely on the domestic abuse assault alternative to do  so.   In
its verdict, the jury indicated in response to a special interrogatory  that
no member of the jury had “relied solely and exclusively on  the  theory  of
participation in Assault Domestic Abuse” to convict the defendant of  first-
degree murder.
      Newell argues that even if the jury verdict establishes  that  he  was
not convicted of first-degree murder based  solely  on  the  domestic-abuse-
assault alternative, he was still  prejudiced  by  the  submission  of  this
theory because it opened the door  to  proof  of  Newell’s  prior  bad  acts
against the victim.  But as our discussion of the defendant’s  challenge  to
the admission of prior-acts evidence explains, this  evidence  was  relevant
to the malice aforethought element of  murder,  an  element  common  to  all
alternatives of first-degree murder.  Consequently, even if  domestic  abuse
assault had not been included in the first-degree  murder  instruction,  the
prior-acts evidence  would  still  have  been  admissible.   Therefore,  the
defendant has failed to show  that  any  error  in  the  submission  of  the
domestic-abuse-assault theory infected his first-degree murder conviction.

      VII.  Ineffective-Assistance-of-Counsel Claim—Improper  Bolstering  of
Witness’s Testimony.
      A.  General principles.  We have previously summarized the  principles
governing  our  consideration  of  ineffective-assistance-of-counsel  claims
asserted on direct appeal of the defendant’s conviction.  They are:

      Two elements must  be  established  to  show  the  ineffectiveness  of
      defense counsel: (1) trial counsel  failed  to  perform  an  essential
      duty; and (2) this omission  resulted  in  prejudice.   A  defendant’s
      inability to prove either element is fatal.
            “Generally,  ineffective-assistance  claims  are  preserved  for
      postconviction  relief  proceedings  to  afford   the   defendant   an
      evidentiary hearing and thereby  permit  the  development  of  a  more
      complete record.”  If the record on appeal shows,  however,  that  the
      defendant cannot prevail on such a claim as a matter of law,  we  will
      “affirm the defendant’s conviction without preserving the ineffective-
      assistance-of-counsel claims.”  Conversely, if the  record  on  appeal
      establishes both elements of an ineffective-assistance  claim  and  an
      evidentiary hearing would not alter this conclusion, we  will  reverse
      the defendant’s conviction and remand for a new trial.

State v. Graves, 668 N.W.2d 860, 869 (Iowa 2003) (citations omitted).
      The defendant claims his trial counsel was ineffective in  failing  to
object  to  a  police  officer’s  alleged  improper  bolstering  of  another
witness’s testimony.  We conclude as a matter  of  law  that  the  defendant
cannot prevail on this claim.
      B.   Discussion.   Newell  argues  on  appeal  that  detective  Moller
improperly commented on the truth and  veracity  of  a  later  witness,  Jim
McClain.  This alleged bolstering occurred during defense  counsel’s  cross-
examination of Moller.  Counsel questioned  the  detective  about  overtures
made to McClain to assist in the prosecution of other cases.   In  response,
Moller stated:

      A.  No. But what I recall is . . . McClain  stating,  “I  realize  I’m
      probably not going to get” . .  .  “I’m  probably  not  going  to  get
      anything out of this, but I knew Kathy.  She was a  decent  gal.   She
      didn’t deserve this. . . .”

Further questioning on this topic elicited similar testimony.  In  addition,
the defense complains about the following testimony of Moller:

      Q.  Would you believe anything he [McClain] told you?
      A.  If it can be corroborated, yes.  I’m not  saying—in  police  work,
      anybody you talk with you try to corroborate what they say, whether it
      be a citizen off the street or somebody in the Black Hawk County jail.

The defendant claims these answers were  improper  opinion  testimony  about
the veracity of witness McClain, who testified  for  the  prosecution.   See
State v. Brotherton, 384 N.W.2d 375, 378 (Iowa 1986) (holding expert  cannot
testify on matters “ ‘that either directly or indirectly render  an  opinion
on the credibility or truthfulness of a witness’ ” (citation omitted));  cf.
State v. Hulbert, 481 N.W.2d 329, 332 (Iowa 1992) (holding opinion  evidence
may not be employed as a direct comment on the guilt  or  innocence  of  the
defendant).
      Moller’s  testimony  about  McClain’s  remarks  was  not  an  improper
comment on McClain’s veracity, because Moller  simply  reiterated  McClain’s
professed reasons for coming forward  to  testify.   Moller  did  not  state
whether he believed these reasons were McClain’s true  motivation.   Because
there would have been no merit to an objection that the  witness  improperly
commented on  the  veracity  of  another  witness,  trial  counsel  was  not
ineffective as a matter of law for failing  to  make  this  objection.   See
Taylor, 689 N.W.2d at 134 (stating counsel has no duty to make an  objection
that lacks merit).
      We do not decide whether trial counsel failed to perform an  essential
duty when he did not object to Moller’s  second  comment—that  Moller  would
believe McClain if McClain’s  testimony  could  be  corroborated—because  no
prejudice resulted from the admission of this testimony.   Moller’s  comment
was at most a lukewarm endorsement of McClain’s veracity.  Moreover,  Moller
testified that  in  police  work,  one  corroborates  everyone’s  testimony,
implying that he considered McClain no more or  less  trustworthy  than  any
other witness.  Given  the  overwhelming  evidence  against  the  defendant,
there is no reasonable probability—as a matter  of  law—that,  but  for  the
admission of this evidence, the outcome of the trial  would  have  been  any
different.   See  id.  (stating  defendant  must  show   “   ‘a   reasonable
probability that, but for counsel’s unprofessional  errors,  the  result  of
the proceeding would have been different’ ” (citation omitted)).
       VIII.   Testimony  Regarding  Defendant’s  Incarceration   for   Drug
Offense.
      The defendant assigns as error the trial court’s refusal  to  grant  a
mistrial after the defendant’s jail mate,  Eric  Pasket,  testified  to  the
defendant’s incarceration on “drug charges.”  When Pasket was  asked,  “What
did [Newell] say he was in there for?” Pasket responded, “He  was  in  there
for drug charges and murder  charge.”   The  defendant’s  attorney  did  not
immediately object, not wanting to call attention  to  this  testimony.   At
the next  break  and  outside  the  presence  of  the  jury,  trial  counsel
requested a  mistrial.   The  court  denied  the  defendant’s  request,  and
pursuant to the defendant’s wishes, did not admonish the jury  to  disregard
the witness’s statement.
      The defendant claims the court erred in failing to  grant  a  mistrial
due to the prejudicial nature of  the  testimony.   We  review  the  court’s
ruling for an abuse of discretion.   See  Piper,  663  N.W.2d  at  901.   “A
mistrial is appropriate when ‘an impartial verdict  cannot  be  reached’  or
the verdict ‘would  have  to  be  reversed  on  appeal  due  to  an  obvious
procedural error in the trial.’ ”  Id. at 902.  The pertinent question  here
is whether the  trial  court  was  clearly  unreasonable  in  concluding  an
impartial verdict could be reached notwithstanding the  witness’s  testimony
that Newell said he was in jail on drug charges.
      We do not think the court’s exercise of  its  discretion  was  clearly
unreasonable.  The reference to drug charges occurred only once,  and  there
were no questions  that  elaborated  on  this  information.   See  State  v.
Anderson, 448 N.W.2d 32, 34 (Iowa 1989) (“It is  of  significance  that  the
incident  was  isolated.”).   In  addition,  the  court   gave   a   general
instruction to the jury admonishing the  jurors  not  to  consider  evidence
concerning other wrongful acts alleged to have  been  committed  by  Newell.
See State v. McMullin, 421 N.W.2d 517, 520 (Iowa 1988) (stating  jurors  are
presumed to have followed the court’s instructions absent  evidence  to  the
contrary).  Finally, the evidence against the  defendant  was  strong.   See
State v. Greene, 592 N.W.2d 24, 32  (Iowa  1999)  (considering  strength  of
evidence in concluding no prejudice warranting a  mistrial);  Anderson,  448
N.W.2d at 34 (same).   When  the  solitary  reference  to  drug  charges  is
considered in the context of the entire trial and all the properly  admitted
evidence, we think the trial court reasonably  concluded  this  comment  did
not prevent the  defendant  from  receiving  a  fair  trial  with  impartial
jurors.
      IX.  Change of Venue.
      In his pro se brief, Newell asserts the trial court erred  in  denying
his request for a change of venue based  upon  adverse  trial  publicity.[1]
The defendant’s request for a  change  of  venue  was  based  upon  a  local
newspaper article and some television and radio reports  broadcasted  during
the first and second day of jury selection.
      The district court has authority to change the venue of a  trial  when
the defendant demonstrates such a degree of prejudice in  the  county  “that
there is a substantial likelihood a  fair  and  impartial  trial  cannot  be
preserved with a  jury  selected  from  that  county.”   Iowa  R.  Crim.  P.
2.11(9)(b).  “[The] right to a  fair  trial  by  impartial  jurors  has  its
underpinnings in our state and federal  constitutions.”   State  v.  Siemer,
454 N.W.2d 857, 860 (Iowa 1990).  Therefore, our review  is  de  novo.   Id.
“Reversal is warranted only where the trial  court’s  decision  demonstrates
an abuse of discretion.”  Id.
      Our de novo review of the record reveals that  the  defendant’s  claim
has no merit.  The newspaper article concerning  the  defendant’s  case  was
essentially  factual  in  nature.   Although  the   radio   and   television
broadcasts were not introduced into evidence,  from  the  answers  given  by
prospective jurors during voir dire, it  appears  that  publicity  was  also
primarily fact based.  Nonetheless, the newspaper article did refer  to  two
items of evidence the trial court had ruled inadmissible: (1)  a  videotaped
deposition of Mary Culbert; and (2) Newell’s history of domestic violence.
      As a result of the defendant’s  motion,  the  court  extensively  voir
dired the jury panel.  Only eight of the thirty-two  persons  on  the  panel
had any exposure to the  article.   Four  jurors  read  it,  and  they  were
excused.  The other four prospective jurors saw the  headlines  and  stopped
reading the article as soon as they realized what it  was.   Each  of  these
jurors stated the article did not affect his or her opinion and  he  or  she
could be impartial.  Of the seven jurors who were later added to the  panel,
a few had exposure to media reporting of the case,  but  all  believed  they
could be fair and impartial.
      The media coverage of the defendant’s case was not pervasive, nor  was
it inflammatory.  Moreover, prejudice is not presumed based on some  jurors’
“mere exposure to news accounts.”  Id. at 861.  We are convinced  the  trial
court reasonably concluded based on the nature  of  the  publicity  and  its
voir dire of the panel that a fair and impartial trial could be obtained  by
the defendant in Black Hawk County.  Therefore, the defendant has failed  to
show the court abused its discretion in denying his  motion  for  change  of
venue.
      X.  Conclusion.
      We find no reversible error.  Therefore,  we  affirm  the  defendant’s
conviction of first-degree murder.
      AFFIRMED.
      All justices concur except Carter, J., Lavorato,  C.J.,  and  Wiggins,
J.,  who concur specially.
      #158/03-0624, State v. Newell
CARTER, Justice (concurring specially).
      I join in the court’s opinion in all aspects, except its treatment  of
the expert testimony of Lieutenant David Taylor.   Although  that  testimony
does not warrant reversal of Newell’s  conviction,  given  the  strength  of
other evidence against him, it should not have been allowed by the  district
court.
      The challenged testimony of Lieutenant Taylor explained the issues  of
power and control often  involved  in  domestic  violence  and  the  use  of
intimidation, emotional abuse, isolation of the victim, blaming the  victim,
and threats.  It suggested that domestic abuse may involve  a  continuum  of
violence and the potential that the violence will  escalate.   The  majority
opinion concludes that this testimony concerning the attributes of  domestic
abuse was helpful in aiding the jury’s  understanding  of  the  relationship
between Gillen and Newell for purposes  of  determining  Newell’s  state  of
mind on the night of Gillen’s death and what might  have  motivated  him  to
beat and strangle her.  I submit that this was an improper use of  profiling
evidence to establish Newell’s guilt.
      The situation in the present case is different from the uses  of  this
type of testimony approved in State v. Rodriquez, 636 N.W.2d 234, 246  (Iowa
2001); and State v. Griffin, 564 N.W.2d 370,  374  (Iowa  1997).   In  those
cases, the evidence was used to explain ambiguous  conduct  of  the  victims
regarding  the  ability  to  flee  from  the  perpetrator  in  a  kidnapping
prosecution and the reason for the recantation of the victim’s statement  in
a domestic-abuse prosecution.  In the present case, no similar  issues  were
presented concerning the conduct of the victim.
      With respect to Newell’s  state  of  mind,  the  majority  opinion  is
implicitly referring  to  the  State’s  need  to  prove  malice.   A  jury’s
determination of the elements of a crime with which an  accused  is  charged
should be based entirely on the evidence presented in the  case  before  the
court and not based on the conduct of others under circumstances beyond  the
jury’s knowledge or consideration.  Moreover, the danger presented  by  such
profiling evidence goes well beyond the issue of intent.  There  is  also  a
strong possibility that a jury  faced  with  Lieutenant  Taylor’s  testimony
concerning a continuum of violence and a potential  for  escalated  violence
might infer that Newell acted in conformity with the  patterns  of  violence
alluded to by the witness and inflicted the injuries  that  caused  Gillen’s
death.  The potential for misuse of this evidence far outweighs any  benefit
the jury might gain from its admission.  It should have been excluded.
      Lavorato, C.J., and Wiggins, J., join this special concurrence.

-----------------------
      [1] The defendant makes numerous  other  claims  of  error.   We  have
considered these claims and conclude they either have no  merit,  error  was
not preserved, or they cannot be addressed on direct appeal.

