               IN THE SUPREME COURT OF IOWA
                              No. 11–1516

                          Filed March 8, 2013


STATE OF IOWA,

      Appellee,

vs.

DENISE LEONE FREI,

      Appellant.


      Appeal from the Iowa District Court for Iowa County, Denver D.

Dillard, Judge.



      Defendant appeals from her conviction for first-degree murder.

AFFIRMED.



      Wallace L. Taylor, Cedar Rapids, for appellant.



      Thomas J. Miller, Attorney General, Thomas S. Tauber and

Douglas D. Hammerand, Assistant Attorneys General, Timothy D.

McMeen, County Attorney, and Lewis C. McMeen, Assistant County

Attorney, for appellee.
                                           2

HECHT, Justice.

       The defendant killed her longtime boyfriend. At trial she raised a

defense of justification based on evidence of battered women’s syndrome

and a defense of insanity based on various diagnoses including

depression and an anxiety disorder. She was convicted of first-degree

murder. On appeal, she alleges the district court erred in denying her

motion for mistrial and by giving improper jury instructions on

justification, insanity, and reasonable doubt.           Finding no error in the

record, we affirm the conviction.
       I. Background Facts and Proceedings.

       In response to a 911 call shortly before 2:00 a.m. on July 19,

2009, police found Denise Frei sitting on the front porch of the home she

shared with Curtis Bailey in Marengo, Iowa.1 She had blood on her shirt

and hands.         Inside, Bailey’s dead body lay on the living room floor,

beaten severely with blunt objects.            Frei told the police she had been

upstairs and overheard a drug deal “gone bad” and then found Bailey’s

body. Later, however, she admitted that she had killed Bailey with the

help of her eighteen-year-old son and his girlfriend.

       Frei was charged with first-degree murder. At trial, she relied on

defenses of justification and insanity. She testified that Bailey subjected

her to humiliating and degrading emotional, verbal, and sexual abuse

and that he threatened to kill her children and grandchild if she ever left

him.    She described Bailey as an extremely jealous and controlling

person who checked her sales receipts after shopping trips to see if her

purchases had been rung up by a male cashier. If the receipts evidenced

the involvement of a male cashier, Bailey forced her to return the items

       1Frei   described Bailey as her common law husband.
                                    3

for a refund. He allegedly cut her off from her family, including her adult

sons and her grandchild. Frei testified that she had tried to leave Bailey

at least once and had talked about it on other occasions but that he had

threatened to slit the throats of her children and grandchild if she did,

and that he had told her that even if she killed herself, he would still

harm her family.    She testified that she tried to kill Bailey on three

previous occasions by giving him doses of morphine and insulin.

      Frei devised a plan in early July 2009 to get Bailey drunk enough

to pass out and then smother him by wrapping his face in Saran Wrap.
She believed that if she suffocated him with the plastic wrap it would

leave no marks and it would appear Bailey had died as a consequence of

an overdose or heart attack. She sought the help of her eighteen-year-

old son, Jacob, and his girlfriend, Jessica. Frei told Bailey that she and

Jessica would engage in sex acts together while he watched if he would

drink a shot of vodka for each sex act they performed.        Bailey agreed

and, on the morning of Saturday, July 18, told his work acquaintances

about the ménage à trois that was to take place that night.

      That night, Frei and Jessica followed their plan, serving Bailey

shots of vodka until he passed out in the living room.              Jessica

summoned Jacob to the house, and Frei bound Bailey’s wrists with

plastic wrap. As his face was being wrapped, however, Bailey woke up

and struggled to free himself.   Frei, Jacob, and Jessica each grabbed

objects nearby, including a rock and a candy dish, and struck Bailey

approximately thirty times until he died. The three cleaned up the scene,

and Jacob and Jessica left the house. Frei called 911 and reported a

false story about the circumstances surrounding Bailey’s death. She told

the police that Bailey died during a drug deal gone bad—that while she

was upstairs he had let two men into the house to purchase drugs and
                                             4

that she heard them struggle and came down to find Bailey dead. When

she later learned that her son had confessed his participation in the

incident, she returned to the police station and admitted her own

involvement.

       Frei offered the trial testimony of Dr. Marilyn Hutchinson, who

testified that Frei suffered from depression, posttraumatic stress

syndrome (PTSD), battered women’s syndrome (BWS),2 and possibly an

anxiety disorder. Dr. Hutchinson explained that she believed Frei had

endured a tremendous amount of sexual and emotional abuse from
Bailey, childhood sexual and physical abuse, and adult physical abuse

from her former husband.            She opined this extensive history of abuse

distorted Frei’s thoughts and feelings and impacted her ability to make

rational decisions. Dr. Hutchinson further testified that at the time of

the murder, Frei would have had the ability to distinguish between right

and wrong, but that Frei would not have understood right and wrong the

way people without these mental health issues understand them.                           In

particular, Dr. Hutchinson opined that Frei would have understood it

was legally wrong to kill Bailey but would have also believed that it was

right to protect her children from his threat to kill them.

       The State offered expert testimony from Dr. Michael Taylor, who

concluded that Frei did not suffer from any psychiatric disorder and that

she understood the nature and quality of her acts when she plotted to

kill Bailey. He specifically rejected Dr. Hutchinson’s posttraumatic stress

syndrome disorder diagnosis, noting Frei had denied all of the normal


       2In this case, Frei’s expert testified that she believed Frei suffered from “battered
women’s syndrome.” This condition is also sometimes referred to as “battered woman
syndrome,” “battered person syndrome,” or “battered spouse syndrome.” For clarity, we
use the term utilized by the expert and the parties in this case.
                                    5

symptoms of PTSD during his interview with her. The State also relied

on Frei’s own admissions to disprove her justification defense—

specifically that she planned Bailey’s death for a week-and-a-half to two

weeks and that she tried to make it look like an accidental death rather

than a murder.     The State also introduced evidence that she made

statements suggesting proceeds from life insurance on Bailey’s life would

allow her to pay off debts on the restaurant she owned with Bailey.

      The jury found Frei guilty. On appeal, she raises four issues: that

the district court erroneously (1) instructed the jury on the elements of a
justification defense, (2) instructed the jury that the defendant bore the

burden to prove an insanity defense, (3) instructed the jury on the

definition of reasonable doubt, and (4) denied Frei’s motion for mistrial

after the prosecution violated a ruling in limine during opening

statements.

      II. Scope of Review.

      We review challenges to jury instructions for correction of errors at

law. State v. Marin, 788 N.W.2d 833, 836 (Iowa 2010); see also Iowa R.

App. P. 6.907. “ ‘We review the related claim that the trial court should

have given the defendant’s requested instructions for an abuse of

discretion.’ ” Marin, 788 N.W.2d at 836 (quoting Summy v. City of Des

Moines, 708 N.W.2d 333, 340 (Iowa 2006)). “Error in giving or refusing

to give a particular instruction warrants reversal unless the record shows

the absence of prejudice.” Id. “ ‘When the error is not of constitutional

magnitude, the test of prejudice is whether it sufficiently appears that

the rights of the complaining party have been injuriously affected or that

the party has suffered a miscarriage of justice.’ ”   Id. (quoting State v.

Gansz, 376 N.W.2d 887, 891 (Iowa 1985)).              When the alleged

instructional error is of constitutional magnitude, the burden is on the
                                      6

State to prove lack of prejudice beyond a reasonable doubt.           State v.

Hanes, 790 N.W.2d 545, 550 (Iowa 2010).           We review a trial court’s

denial of a motion for mistrial for an abuse of discretion. State v. Greene,

592 N.W.2d 24, 30 (Iowa 1999).

      III. Discussion.

      A.   Jury Instructions on Justification Defense.            Iowa Code

section 704.3 (2011) prescribes the elements of a justification defense.

            A person is justified in the use of reasonable force
      when the person reasonably believes that such force is
      necessary to defend oneself or another from any imminent
      use of unlawful force.

Iowa Code § 704.3.

      “Reasonable force” is defined as

      that force and no more which a reasonable person, in like
      circumstances, would judge to be necessary to prevent an
      injury or loss and can include deadly force if it is reasonable
      to believe that such force is necessary to avoid injury or risk
      to one’s life or safety or the life or safety of another, or it is
      reasonable to believe that such force is necessary to resist a
      like force or threat. Reasonable force, including deadly force,
      may be used even if an alternative course of action is
      available if the alternative entails a risk to life or safety, or
      the life or safety of a third party, or requires one to abandon
      or retreat from one’s dwelling or place of business or
      employment.

Id. § 704.1.

      When interpreting and applying these statutes, we have explained

that “the test of justification is both subjective and objective. The actor

must actually believe that he is in danger and that belief must be a

reasonable one.” State v. Elam, 328 N.W.2d 314, 317 (Iowa 1982). Frei

takes issue with this characterization of the justification defense. She

contends the “objective” element of the justification—requiring the

defendant to act and perceive as a reasonable person—is incompatible

with the requirement that the State must prove the defendant possessed
                                    7

the level of culpability required to support a conviction for the charged

crime. She asserts that if the defendant possesses the subjective belief

that her actions are justified, then “the objective reasonableness of that

belief should not matter.” Accordingly, she contends the district court

erred when it rejected her proposed instruction defining “reasonable

force” as “only the amount of force a reasonable person or a person with

the Defendant’s alleged degree of mental illness would find necessary to

use under the circumstances.” Frei contends the district court further

erred in denying her requested justification instruction, which would
have permitted the jurors to acquit her if they found she subjectively

believed her actions were justified without considering whether her

perception of danger or belief regarding the availability of an alternative

course of action was reasonable. The given justification instruction, by

contrast, retained an objective reasonableness requirement.

      Frei contends the decision of our court of appeals in State v. Price

supports her contention that the standard should be subjective.        See

State v. Price, No. 07–1659, 2008 WL 5234351 (Iowa Ct. App. Dec. 17,

2008).   In its discussion of the admissibility of BWS evidence in that

case, the court noted:

      [W]e think the expert’s testimony would have given the jury
      information that it needed to understand the significance
      and meaning of the victim’s conduct and to understand the
      defendant’s reaction to that conduct . . . . Furthermore, we
      agree with those jurisdictions that have concluded that while
      evidence of battered women’s syndrome is not in and of itself
      a defense, “its function is to aid the jury in determining
      whether a defendant’s fear and claim of self-defense are
      reasonable.”

Id. at *6 (citation omitted) (quoting State v. Edwards, 60 S.W.3d 602, 613

(Mo. Ct. App. 2001)).
                                           8

       While the decision in the unreported Price decision is not binding

authority for this court, it appears to be the only decision of an appellate

court in the state addressing the admissibility of expert testimony about

BWS offered by a defendant in furtherance of her justification defense.3

We note the conclusion reached by the court of appeals in Price that such

evidence is relevant to both the defendant’s subjective belief and the

reasonableness of her belief is consistent with the results reached by

several other courts across the country. See, e.g., People v. Humphrey,

921 P.2d 1, 9 (Cal. 1996); Smith v. State, 486 S.E.2d 819, 822 (Ga.
1997); State v. Hennum, 441 N.W.2d 793, 798 (Minn. 1989); State v.

Kelly, 478 A.2d 364, 376–77 (N.J. 1984); State v. Seeley, 720 N.Y.S.2d

315, 321 (Sup. Ct. 2000); State v. Koss, 551 N.E.2d 970, 973–74 (Ohio

1990).      The decisions of these courts have not eliminated the

reasonableness requirement            from a justification defense when a

defendant relies on BWS. But see Bechtel v. State, 840 P.2d 1, 11 (Okla.

Crim. App. 1992) (modifying jury instructions, in BWS cases, to eliminate

requirement that defendant “reasonably” believe use of deadly force is

necessary to avoid imminent danger).                  Instead, these cases have

examined       the    appropriate      level    of    contextualization       for    the

reasonableness inquiry. See Smith, 486 S.E.2d at 823. As applied to a

battered woman, an appropriately specific reasonableness inquiry might

consider objective facts about the batterer, any history of violence, any

failed attempts to escape abuse, and any other facts relevant under the


       3We have twice addressed the admission of testimony regarding battered

women’s syndrome in criminal trials, but neither case involved a defendant’s offer of
BWS evidence. Instead, the evidence was used by the State against the defendant—to
explain an abuse victim’s recantation of an accusation, State v. Griffin, 564 N.W.2d 370,
374 (Iowa 1997), or to prove the defendant confined the victim against her will, State v.
Rodriquez, 636 N.W.2d 234, 246 (Iowa 2001).
                                       9

circumstances. Further, expert testimony can aid in cautioning jurors

that the behavior of battered women should not be lightly dismissed as

inherently unreasonable. These cases do not, however, establish that an

appropriate reasonableness inquiry extends only as far as a specific

defendant’s    actual,   subjective   beliefs     regarding   the   surrounding

circumstances.    Accordingly, Frei’s reliance on Price, and by extension

the authorities from other jurisdictions, does not support her argument

for a purely subjective test for justification.

      The State argues that the jury instructions given by the court in
this case accurately express the legal elements of a justification defense

as provided by sections 704.1 and 704.3 and interpreted by our prior

caselaw.   We agree.     Frei’s proposal for an entirely subjective test of

justification is incompatible with the clear mandate of sections 704.1 and

704.3 requiring the actions and perceptions of the defendant be tested

against a reasonableness standard.         The district court did not err in

instructing the jury as it did.

      B.      Reasonable Doubt Instruction.            Frei requested a jury

instruction on reasonable doubt that read as follows:

      The burden is on the State to prove Denise Frei guilty
      beyond a reasonable doubt.

      A “reasonable doubt” is such a doubt as fairly and naturally
      arises in our mind and by reason of which you cannot say
      that you have a full and abiding conviction of the guilt of the
      defendant; and if, after considering all of the circumstances
      as disclosed by the evidence, you find your mind wavering or
      vacillating, then you have a reasonable doubt, and the
      defendant is entitled to the benefit of such doubt and you
      must acquit her. A reasonable doubt may arise from the
      evidence in the case or it may arise from a lack or failure of
      evidence produced by the State, and it must be such a doubt
      as would cause a reasonable, prudent and considerate man
      to pause and hesitate before acting in the graver and more
      important affairs of life. But you should not ignore credible
      evidence to hunt for doubt, and you should not entertain
                                          10
       such doubt as is purely imaginary or fanciful or based on
       groundless conjecture. If, after a careful and impartial
       consideration of all evidence in the case, you have a full and
       abiding conviction of the guilt of the defendant, then you are
       satisfied beyond a reasonable doubt, otherwise you are not
       satisfied beyond a reasonable doubt.4

       The district court declined to give the instruction requested by

Frei, electing instead to give the following instruction on the subject:

       The burden is on the State to prove Denise Leone Frei guilty
       beyond a reasonable doubt.

       A reasonable doubt is one that fairly and naturally arises
       from the evidence or lack of evidence produced by the State.

       If, after a full and fair consideration of all the evidence, you
       are firmly convinced of the defendant’s guilt, then you have
       no reasonable doubt and you should find the defendant
       guilty.

       But if, after a full and fair consideration of all the evidence or
       lack of evidence produced by the State, you are not firmly
       convinced of the defendant’s guilt, then you have a
       reasonable doubt and you should find the defendant not
       guilty.5

Frei contends the instruction given by the district court violated her due

process rights.


       4This proposed instruction was derived from language found in one of the

“Uniform Jury Instructions” drafted by a special committee of the Iowa State Bar
Association (ISBA) and published by that association prior to 2004.
       5This instruction given by the district court was derived from language found in
the version of the ISBA’s uniform instruction on reasonable doubt extant from 2004 to
2009. By the time of the trial of this case in August 2011, the ISBA’s uniform
instruction on reasonable doubt had been revised to include an additional paragraph
which provides:
       A reasonable doubt is a doubt based upon reason and common sense,
       and not the mere possibility of innocence. A reasonable doubt is the
       kind of doubt that would make a reasonable person hesitate to act. Proof
       beyond a reasonable doubt, therefore, must be proof of such a
       convincing character that a reasonable person would not hesitate to rely
       and act upon it. However, proof beyond a reasonable doubt does not
       mean proof beyond all possible doubt.
Iowa Crim. Jury Instruction 100.10 (March 2009).
                                      11

      We begin our analysis by noting the clearly established proposition

that “the Due Process Clause protects the accused against conviction

except upon proof beyond a reasonable doubt of every fact necessary to

constitute the crime with which he is charged.” In re Winship, 397 U.S.

358, 364, 90 S. Ct. 1068, 1073, 25 L. Ed. 2d 368, 375 (1970). “ ‘[T]aken

as a whole, the instructions [must] correctly conve[y] the concept of

reasonable doubt to the jury.’ ” Victor v. Nebraska, 511 U.S. 1, 5, 114

S. Ct. 1239, 1243, 127 L. Ed. 2d 583, 590 (1994) (quoting Holland v.

United States, 348 U.S. 121, 140, 75 S. Ct. 127, 138, 99 L. Ed. 150, 167
(1954)). The constitutional question presented here “is whether there is

a reasonable likelihood that the jury understood the instructions to allow

conviction based on proof insufficient to meet the Winship standard.” Id.

at 6, 114 S. Ct. at 1243, 127 L. Ed. 2d at 591.

      Courts have struggled, however, in settling upon a serviceable

definition of the “reasonable doubt” standard.          The choice of words

accurately communicating the nature and extent of certitude jurors must

have a defendant’s guilt in order to vote for a conviction is not an easy

project. The Due Process Clause provides no definitional guidance as it

requires no “particular form of words be used in advising the jury of the

government’s burden of proof.”       Id. at 5, 114 S. Ct. at 1242–43, 127

L. Ed. 2d at 590 (noting “[a]lthough this standard is an ancient and

honored    aspect    of   our   criminal   justice   system,   it   defies   easy

explication.”).     Yet, Supreme Court jurisprudence teaches that a

minimum definitional threshold for the standard does exist.                   For

example, a jury instruction characterizing reasonable doubt as “such

doubt as would give rise to grave uncertainty” and “an actual substantial

doubt” amounting to a “moral certainty” set the bar for the State’s

burden of proof too low and fell below the due process threshold. Cage v.
                                     12

Louisiana, 498 U.S. 39, 41, 111 S. Ct. 328, 329–30, 112 L. Ed. 2d 339,

342 (1990) (per curiam, overruled in part on other grounds by Estelle v.

McGuire, 502 U.S. 62, 72 n.4, 112 S. Ct. 475, 482 n.4, 116 L. Ed. 2d

385, 399 n.4 (1991)).

      Other formulations of the reasonable doubt standard have survived

due process scrutiny.     In Victor, the Supreme Court found no due

process violation resulted from jury instructions in two consolidated

cases. In one of these cases, the California state trial court’s instructions

defined reasonable doubt as follows:

      It is not a mere possible doubt; because everything relating
      to human affairs, and depending on moral evidence, is open
      to some possible or imaginary doubt. It is that state of the
      case which, after the entire comparison and consideration of
      all the evidence, leaves the minds of the jurors in that
      condition that they cannot say they feel an abiding
      conviction, to a moral certainty, of the truth of the charge.

Victor, 511 U.S. at 7, 114 S. Ct. at 1244, 127 L. Ed. 2d at 591–92

(citation omitted). In the other consolidated case, a Nebraska state trial

court defined reasonable doubt as follows:

      “Reasonable doubt” is such a doubt as would cause a
      reasonable and prudent person, in one of the graver and
      more important transactions of life, to pause and hesitate
      before taking the represented facts as true and relying and
      acting thereon. It is such a doubt as will not permit you,
      after full, fair, and impartial consideration of all the
      evidence, to have an abiding conviction, to a moral certainty,
      of the guilt of the accused. At the same time, absolute or
      mathematical certainty is not required.         You may be
      convinced of the truth of a fact beyond a reasonable doubt
      and yet be fully aware that possibly you may be mistaken.
      You may find an accused guilty upon the strong probabilities
      of the case, provided such probabilities are strong enough to
      exclude any doubt of his guilt that is reasonable.          A
      reasonable doubt is an actual and substantial doubt
      reasonably arising from the evidence, from the facts or
      circumstances shown by the evidence, or from the lack of
      evidence on the part of the State, as distinguished from a
      doubt arising from mere possibility, from bare imagination,
      or from fanciful conjecture.
                                          13

Id. at 18, 114 S. Ct. at 1249, 127 L. Ed. 2d at 598 (citation omitted). The

Supreme Court concluded both of these reasonable doubt formulations

passed due process muster.            Id. at 22–23, 114 S. Ct. at 1252, 127

L. Ed. 2d at 601.

       Frei contends the reasonable doubt instruction given by the

district court in this case fell short of the applicable due process

standard because it failed to “ ‘impress[] upon the factfinder the need to

reach a subjective state of near certitude of the guilt of the accused.’ ”

Id. at 15, 114 S. Ct. at 1247, 127 L. Ed. 2d at 596 (quoting Jackson v.
Virginia, 443 U.S. 307, 315, 99 S. Ct. 2781, 2786, 61 L. Ed. 2d 560, 571

(1979)). In particular, she posits that the “firmly convinced” formulation

of reasonable doubt instructed upon in this case provided no real

guidance to the jurors as to the nature or quality of doubt that would

require an acquittal, and thus allowed them to convict her with a lesser

quantum of certainty than is required by the Federal Constitution.6

       We approved a very similar formulation of the reasonable doubt

standard in State v. McFarland, 287 N.W.2d 162, 163 (Iowa 1980). The

relevant instructions in McFarland authorized the jury to convict the

defendant only if they were “firmly and abidingly convinced” of the

defendant’s guilt. Id. We concluded the instructions sufficiently “set out

an objective standard for measuring the jurors’ doubts.” Id.



       6Frei also suggests “this Court can interpret the due process clause of the Iowa
Constitution to require the use of Ms. Frei’s proposed instruction, even if the U.S.
Supreme Court’s interpretation of the federal Constitution would not require it.” She
makes no argument however, suggesting a different interpretation is mandated under
the corollary due process clause in the Iowa Constitution. “As a result, prudential
concerns ordinarily mean that where an argument that the Iowa Constitution should be
construed differently than the United States Constitution is not presented, we assume
for purposes of the case that the provisions should be interpreted in an identical
fashion.” State v. Feregrino, 756 N.W.2d 700, 703–04 n.1 (Iowa 2008).
                                     14

       Since Victor was decided in 1994, the “firmly convinced” standard

has achieved extensive recognition and is likely the formulation of the

reasonable doubt standard most widely approved by American jurists,

academics, and litigants. Lawrence M. Solan, Refocusing the Burden of

Proof in Criminal Cases: Some Doubt About Reasonable Doubt, 78 Tex. L.

Rev. 105, 145 (1999) (“The superiority of the firmly convinced instruction

comes not from its semantic fidelity to the reasonable doubt standard

but from its greater success in promoting important values.”); see also

Jon O. Newman, Beyond “Reasonable Doubt,” 68 N.Y.U. L. Rev. 979,
990–91 (1993); Irwin A. Horowitz, Reasonable Doubt Instructions, 3

Psychol. Pub. Pol’y & L. 285, 297–98 (1997) (discussing the superiority of

the firmly convinced standard as evidenced by statistical analysis); A

Handbook of Criminal Terms 574 (Bryan A. Garner ed., 2000); Black’s

Law Dictionary 1380 (9th ed. 2009) (defining reasonable doubt as “the

doubt that prevents one from being firmly convinced of a defendant’s

guilt, or the belief that there is a real possibility that a defendant is not

guilty.”).

       In her concurring opinion in Victor, Justice Ginsburg stoutly

endorsed a reasonable doubt instruction proposed by the Federal

Judicial Center,    characterizing it as     “clear, straightforward, and

accurate.” 511 U.S. at 27, 114 S. Ct. at 1253, 127 L. Ed. 2d at 603

(Ginsburg, J., concurring in part and concurring in judgment) (quoting

Federal Judicial Center (FJC), Pattern Criminal Jury Instructions, at 17-

18 (instruction 21)).     That instruction embraced firmly convinced

language comparable to that used in the instruction challenged in this

case: “Proof beyond a reasonable doubt is proof that leaves you firmly

convinced of the defendant’s guilt. . . . If, based on your consideration of

the evidence, you are firmly convinced that the defendant is guilty of the
                                     15

crime charged, you must find him guilty.”        Id.   Six federal courts of

appeals have approved the firmly convinced standard, finding that it

accurately expresses the degree of certainty required to find a defendant

guilty beyond a reasonable doubt. See, e.g., United States v. Rodriguez,

162 F.3d 135, 146 (1st Cir. 1998); United States v. Conway, 73 F.3d 975,

980 (10th Cir. 1995); United States v. Reese, 33 F.3d 166, 172 (2d Cir.

1994); United States v. Williams, 20 F.3d 125, 131–32 (5th Cir. 1994);

United States v. Taylor, 997 F.2d 1551, 1555–56 (D.C. Cir. 1993); United

States v. Velasquez, 980 F.2d 1275, 1278 (9th Cir. 1992).
      Numerous state courts have also adopted the FJC pattern

instruction and expressly approved its firmly convinced language. State

v. Portillo, 898 P.2d 970, 974 (Ariz. 1995) (adopting the FJC firmly

convinced standard in all criminal cases); Winegeart v. State, 665 N.E.2d

893, 902 (Ind. 1996) (approving the FJC firmly convinced standard and

recommending     its   use   in   Indiana   courts,    “preferably   with   no

supplementation or embellishment”); State v. Reyes, 116 P.3d 305, 314

(Utah 2005) (requiring that Utah trial courts use the FJC instruction); cf.

Joyner-Pitts v. State, 647 A.2d 116, 122–23 (Md. Ct. Spec. App. 1994)

(quoting the FJC “firmly convinced” instruction with approval).

      We find no reversible error in the “firmly convinced” formulation

used by the district court in this case.     “Firmly” means “steadfastly,”

“resolutely,” “soundly,” “solidly,” and “strongly.”         Webster’s Third

International Dictionary 856 (unabr. ed. 2002). Likewise, “firm” is defined

as “immovable,” “fixed,” “settled,” “not easily moved, shaken, excited, or

disturbed.” Id. The word “firmly” is not arcane or obscure, but rather is

a plain, well-understood word commonly used in modern speech.               We

believe it adequately expressed—within the due process parameters

articulated in Victor—the extent of certitude the jury must possess to
                                         16

convict a defendant of a crime in this state.7 Accordingly, we conclude

the district court did not err when it instructed the jury on reasonable

doubt.

       C. Burden of Proof on Insanity Defense. Frei proposed a jury

instruction allocating to the State the burden of proving Frei was not

insane at the time of Bailey’s death. Arguing in favor of the proposed

jury instruction and in opposition to the instruction actually given by the

district court in this case, Frei’s counsel made the following record:

       I know the court’s concerned about the fact that we placed
       insanity as an element the State has to disprove, and I think
       due process has to prove that notwithstanding the
       legislature to turn that upside down with the burden on the
       Defendant. But if the court believes that the legislature has
       that power, but we would propose that that be removed from
       the marshaling instructions that that would be the proper
       instruction that should be given.

       Frei argues on appeal that the district court’s allocation to her of

the burden of proving insanity violated her right to equal protection of

the law. However, the State contends error was not preserved because

Frei raised no equal protection argument in the district court.                  Frei

responds that she raised “constitutional” concerns to the court and

raised a specific equal protection challenge in her motion for a new trial.

       As we have noted, the record made by Frei’s counsel on the jury

instructions advanced only a due process argument, not the equal

protection argument she now asserts. Issues raised for the first time in

posttrial motions are not sufficient to preserve error. State v. Stone, 764




       7Our  determination that the district court did not err in using the “firmly
convinced” formulation to define the reasonable doubt standard in this case should not
be viewed as a rejection of any other formulation expressing in equivalent terms the
state’s burden of proof.
                                     17

N.W.2d 545, 550 (Iowa 2009).        Accordingly, this issue has not been

preserved for our review.

      D.    Denial of Motion for Mistrial.     When Frei first spoke with

police, she told them she believed Bailey had died during a drug deal.

She told them two men had come to the house to conduct a drug

transaction, that she heard Bailey use racial slurs referring to one of the

men, and that she heard one of the men speak with an accent she did

not recognize.

      Frei moved in limine to exclude any reference at trial to the fact
that she used racial slurs in reporting the story to the police or to the

fact that she had claimed the fictitious drug dealers belonged to any

particular racial or ethnic group. The court granted the motion, ruling

that the State should not reveal to the jury any racial or ethnic slurs

spoken by Frei, but that “the State may refer to the Defendant

attempting to blame other persons without reference to ethnic or racial

characteristics.”

      During opening statements, the prosecution twice referred to the

defendant    blaming   “Hispanic”    drug   dealers   for   Bailey’s   death.

Specifically the prosecutor told the jurors that Frei “not only . . . said it

was a drug deal gone bad, she seemed to blame it on the drug dealers, at

least one sounded like he was Hispanic.”         The prosecutor’s opening

statement also asserted that after Frei’s original plan failed and Bailey

was beaten to death, “then the plan became let’s blame Hispanic drug

dealers for [Bailey’s] death.” Frei moved for a mistrial.

      The district court inquired of the prosecutor during the ensuing

colloquy on the motion for mistrial whether it was really worth it to him

to try to correct the error and run the risk of having any guilty verdict

overturned on appeal. After hearing the arguments of counsel, the court
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concluded the prosecutor’s statements had violated the order in limine

but denied the motion “somewhat reluctantly.”        The parties discussed

whether a curative instruction should be given, but the district court

declined to give one. When the trial resumed, the prosecutor made the

following statement to the jury:

      During opening statement there was a reference made the
      Defendant blamed others for a drug deal, and Hispanics. It
      should have just been Defendant blamed others. I was
      incorrect in Hispanics. It was Defendant blamed others.

      Frei contends the district court abused its discretion in denying

her motion for mistrial. As it is in the best position to appraise the effect

of any alleged misconduct, we allow the district court broad discretion in

deciding whether to grant a mistrial. Fry v. Blauvelt, 818 N.W.2d 123,

132 (Iowa 2012). To establish reversible error on this issue, Frei must

show the violation of the limine order resulted in prejudice that deprived

her of a fair trial. State v. Greene, 592 N.W.2d 24, 32 (Iowa 1999). “The

party claiming prejudice bears the burden of establishing it.”      State v.

Anderson, 448 N.W.2d 32, 33 (Iowa 1989).

      Frei contends opening statements strongly influence jurors’

impressions of the case even before they hear evidence. Noting that her

justification defense depended on the jury’s perception of her credibility,

Frei posits that the prosecutor’s disclosure during his opening statement

of Frei’s false initial report of the incident blaming Hispanics for the

murder was especially prejudicial.     Upon our review of the record, we

conclude the prosecution’s remarks and subsequent correction of them

did not produce such prejudice as would deny Frei a fair trial.          We

acknowledge the importance of opening statements in the trial process

and do not diminish the importance of faithful observance of limine

orders by prosecutors. However, the prosecutor’s attribution to Frei of
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statements blaming Hispanics for the murder and his later attempt to

“correct” his error did not include racial slurs or other inflammatory

language.   There were no further violations of the court’s limine order

during the remainder of the trial.       On this record, we conclude the

prosecutor’s statements did not deprive Frei of a fair trial. Accordingly,

the district court did not abuse its discretion in denying Frei’s motion for

mistrial and we therefore affirm on this issue.

      IV. Conclusion.

      For the reasons stated above, we affirm Frei’s conviction.
      AFFIRMED.
