                   IN THE COURT OF APPEALS OF IOWA

                              No. 4-022 / 13-0177
                              Filed April 16, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

THOMAS LEE HANSEN SR.,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Washington County, Joel D. Yates,

Judge.



      Thomas Hansen Sr. appeals from his conviction of second-degree

murder. AFFIRMED.




      S.P. DeVolder of The DeVolder Law Firm, Norwalk, for appellant.

      Thomas J. Miller, Attorney General, Darrel Mullins and Andrew Prosser,

Assistant Attorneys General, and Larry Brock, County Attorney, for appellee.



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


POTTERFIELD, J.

       Thomas Hansen Sr. appeals from his conviction of second-degree

murder. He challenges the sufficiency of the evidence of malice aforethought to

support the conviction. He also contends the trial court erred in instructing the

jury, in excluding certain testimony, and in overruling his chain-of-custody

objection to the handgun found at the scene of the shooting. He argues he was

entitled to a new trial.    Because there was substantial evidence of malice

aforethought to sustain the conviction, the jury was properly instructed about

permissible inferences, and the trial court did not abuse its discretion in ruling on

evidentiary issues and the motion for new trial, we affirm.

       I. Background Facts and Proceedings.

       On May 1, 2011, Thomas Hansen shot his live-in girlfriend, Sharon Gerot,

as she was mowing their rural Riverside home on a riding lawn mower. Gerot

died of a single bullet wound to the head. Hansen was charged with first-degree

murder.

       At trial, Todd Hahn—Hansen and Gerot’s neighbor—testified that he and

his wife were driving home westbound on 135th Street at about 3:40 p.m. on May

1, 2011. Hahn’s vehicle had just crossed over highway 218, and he was driving

by Hansen’s house. Out of the corner of his eye, Hahn saw a person operating a

riding lawnmower on Hansen’s property.        Hahn saw the person’s “head and

hands snapped back.” Hahn thought the person may have struck a fence or a

wire. He “backed up real fast to their side drive, into their horse lot” and got out

of his vehicle to check on the person’s welfare. Hahn hopped a fence, hurried to

the mower, and saw a body lying next to it face-down. He could not tell who the
                                         3


person was. He looked for movement. Hahn testified that Hansen “came up to”

Hahn, told him “not to touch it,” and to “call the cops.” While Hahn was making

the call, Hansen said, “I shot ‘em.” Hahn could see that there was a lot of blood

around the person’s face. Hahn observed that Hansen “just didn’t seem quite

himself and was very, very—very calm.” Hahn stated Hansen “seemed a little

off” and “the whole situation struck [him] as strange.”

       At about 3:45 p.m., Iowa State Trooper Allen Konecne was on patrol and

heard a radio report of a shooting just west of highway 218 and south of

Riverside. Trooper Konecne arrived at the scene at 4:02 p.m. where he saw the

officers first to the scene, Deputy Brandon Hamilton and Trooper Justin

O’Rourke. They had Hansen on the ground and were handcuffing him. Trooper

Konecne assisted in escorting Hansen to Deputy Hamilton’s squad car. While

Trooper Konecne was taking Hansen to the car, Hansen stated, “I just couldn’t

take it anymore.” Trooper Konecne testified Hansen “wasn’t excited.        Pretty

neutral, not showing much emotion.” Trooper Konecne testified that after placing

Hansen in the patrol car, he entered Hansen’s house to make sure no one else

was at the scene. He walked through the sliding glass doors on the patio deck,

entered the kitchen, and saw a handgun on the kitchen counter.

       Iowa Division of Criminal Investigation (DCI) Special Agent Jagat Sandhu

was notified of the incident about 5:00 p.m. Agent Sandhu assists local law

enforcement in the investigation of major crimes and arrived at the scene just

after 6:00 p.m. He took pictures of the scene and made measurements. Agent

Sandhu was assisted in his work by Iowa State Trooper Jonah Grier. Agent

Sandhu concluded that the lawn tractor completed an entire circle after Gerot
                                        4


was shot and before she fell off the mower. The blood circle was 23 feet in

diameter, with the closest blood spot 59.1 feet from the sliding patio door and the

farthest spot some 84 feet from that door. The lawn tractor stopped some sixty-

nine feet from the patio door.

       Agent Sandhu and Trooper Grier also entered and searched the house

after a warrant was obtained. Agent Sandhu discovered a .40-caliber pistol on

the kitchen counter and one spent .40-caliber shell casing on the kitchen floor.

Agent Sandhu stated these items were sent to the DCI crime lab in Ankeny,

along with a .22-caliber handgun he had found in a bedroom of the house. In the

garage, the officers found a tote bag containing a holster and two magazines for

the .40-calibur handgun. They did not locate the bullet that struck Gerot.

       Agent Jeff Uhlmeyer checked Hansen’s telephone messages, and there

was a call back message from the 911 dispatcher.

       Victor Murillo is a criminologist at the DCI labs in Ankeny. He examined a

.40-caliber Smith and Wesson handgun and a spent shell casing. He fired two

rounds from the gun and compared one of the spent shell casings from a round

he had fired with the casing that had been sent to the lab. Murillo concluded that

the markings on the back of each of the casings were a match.                Murillo

concluded that the spent shell casing that had been sent to the lab was ejected

from the .40-caliber Smith and Wesson handgun that also had been sent to the

lab.

       Dr. Marcus Nashelsky is a forensic pathologist with the University of Iowa

Hospitals and Clinics and performed the autopsy of Gerot’s body. He testified

Gerot died from a single bullet wound to her head.        The size of the wound
                                         5


indicated she was shot with a .40-caliber bullet. The bullet struck her on the left

temple and exited out of the other side of her head just behind her right ear.

       Hansen testified in his own defense. He stated he got up at 5:30 a.m. on

May 1 to perform chores. He had intended to drive to Yellowstone National Park

that day; Gerot was to leave three weeks later to join him there, where they were

to perform seasonal work. But Gerot got out of bed around 10:00 a.m., and

“[s]he was not happy.” Gerot had several items she wanted completed before

Hansen left for Yellowstone. Hansen testified Gerot verbally disparaged him;

assaulted him;1 and then she waved the .22-caliber handgun around while

saying, “I could shoot this, I could put a bullet in my head, I could put a bullet in

your head.” Hansen testified Gerot continued to belittle him and choked him.

She threw ice at him and spit on him. Eventually, Gerot left the house to mow

the yard.

       Hansen testified he followed Gerot into the garage to tell her to be careful

of the live electric fence as she mowed, but she shoved him to the ground. He

wanted to “[g]et her the hell out of here.” Hansen testified that he then “did one

of the most stupid things in the world. The weapon was right there. I grabbed it.

And I remember thinking that ‘I’m going to scare her and she’ll leave.’”          He

testified further,

              Well, I went behind the cars and went up to the door, and
       she went down to mow, and I walked over to the sliding glass
       doors, which were open, and I made the biggest mistake of my life.
       I never wanted to hit her. I couldn’t—I never wanted to hit her; I


1
  According to Hansen, Gerot had assaulted him many times before. Gerot weighed
about 200 pounds; Hansen weighed about 140 pounds. Hansen was seventy-one at the
time of the incident; Gerot was fifty-six.
                                             6


       wanted to scare her, scare her and get her the hell out of there.
       Sorry.
               Q. And what did you do next? A. Well, I—I just went “Bang.”
       And I saw dust in the back of the horse lot come up. And then I
       saw her flop backwards on the mower. When I first saw the dust, I
       thought “I scared her,” and my God, she—she went backwards.
       She went backwards on the mower, and apparently her foot caught
       the clutch, and it kept going. I turned around and I went in and I
       grabbed the phone and dialed 911. I couldn’t get through. I hung
       up and I called [son] Tom, and I told Tom, “I need help, I need
       help.” I don’t know what I really said. I just, you know—And when I
       was talking, I heard the mower stop.
               I hung up, and I started walking to the back—back door; I
       was walking fast to the back door. And I looked over and I saw the
       mower there and her beside it, and Todd Hahn coming down. He
       was walking up and I was walking towards him. I think he asked
       me what happened. And I told him I shot her. I told him to call 911,
       and we—I stood there and he called 911, and I went over and
       looked, and she was dead. I—I told Todd Hahn the address and—
       and then I walked back. I don’t—I don’t know what happened. I
       wasn’t there. My mind—I don’t know what I was thinking. But for
       some reason I was—“I’ve got to get this stuff done.”
               I knew there was going to be the ambulance, fire, law. I had
       the dogs out, I had the horses out. I had to get it ready for them.
       So I went back to the house, got the dogs and stuff settled in, put
       them in the bedroom so they wouldn’t get in trouble. The cats were
       there. I had to go into the garage to get the dogs in. I remember
       whistling. The two controls for the back door are right there by that
       garage door. Out of habit I might have closed them. I then—It’s
       kind of a fog. I went back out, I went back and made sure that
       horse gate was locked. I walked over by the mower. And I shut
       that off, I guess. The stupid things you think about. And then I—
       came back into the backyard and then I just waited. I knew—I
       knew everything was gone. Everything—Any hope I ever had or
       anything I ever had was gone.

On cross-examination, Hansen acknowledged that he told police “that [he] was

seeing red, that [his] blood was boiling.”

       The jury found Hansen guilty of the lesser-included offense of second-

degree murder.

       On appeal, Hansen contends there was insufficient evidence of malice

aforethought to sustain the conviction.          He also urges error in the jury
                                          7


instructions, the trial court’s evidentiary rulings, and the denial of his motion for a

new trial.

       II. Scope and Standards of Review.

       We review challenges to the sufficiency of the evidence for correction of

errors at law, and we will uphold the jury’s verdict if it is supported by substantial

evidence. State v. Serrato, 787 N.W.2d 462, 465 (Iowa 2010). Evidence is

considered substantial if a reasonable trier of fact could find the defendant guilty

beyond a reasonable doubt. Id. “However, in making such determinations, we

also view the evidence in the light most favorable to the State, including

legitimate inferences and presumptions that may fairly and reasonably be

deduced from the record evidence.” Id. (internal quotation marks and citation

omitted).

       We review challenges to jury instructions for the correction of errors at

law.   State v. Hanes, 790 N.W.2d 545, 548 (Iowa 2010).            “Our review is to

determine whether the challenged instruction accurately states the law and is

supported by substantial evidence.       Error in a particular instruction does not

require reversal unless the error was prejudicial to the complaining party.” Id.

(citations omitted).

       Our review of the trial court’s evidentiary rulings is for an abuse of

discretion. State v. Huston, 825 N.W.2d 531, 536 (Iowa 2013). A district court

abuses its discretion when its decision rests on grounds or on reasons clearly

untenable or to an extent clearly unreasonable. State v. Richards, 809 N.W.2d

80, 89 (Iowa 2012). There will be no abuse of discretion found unless a party

has suffered prejudice. Id.
                                         8


      A district court’s ruling on a motion for new trial is also reviewed for an

abuse of discretion. State v. Shanahan, 712 N.W.2d 121, 135 (Iowa 2006). The

district court should grant the motion only if the jury’s verdict is contrary to the

weight of the evidence. Id. at 134–35.

      III. Analysis.

      A. Sufficiency of the evidence.           Hansen first contends there is

insufficient evidence of malice aforethought to sustain the second-degree murder

conviction. He emphasizes that in his statement to police after the shooting and

his testimony he claimed he only meant to scare Gerot. Malice aforethought is

an essential element of second-degree murder and separates second-degree

murder from other lesser-included offenses of first-degree murder.         State v.

Reeves, 670 N.W.2d 199, 207 (Iowa 2003).

      “Malice aforethought is a fixed purpose or design to do physical harm to

another that exists before the act is committed.” State v. Myers, 653 N.W.2d

574, 579 (Iowa 2002); accord Serrato, 787 N.W.2d at 469. It does not need to

exist for any particular length of time, “‘but only requires such deliberation as

makes a person appreciate and understand at the time the act is committed its

nature and probable consequences as distinguished from an act done in the heat

of passion.’” Serrato, 787 N.W.2d at 469 (quoting State v. Gramenz, 126 N.W.2d

285, 290 (Iowa 1964)).

      “Because this element is a state of mind, circumstantial evidence is

generally used to prove malice.” State v. Buenaventura, 660 N.W.2d 38, 49

(Iowa 2003); see also Serrato, 787 N.W.2d at 469 (“Because it is a state of mind,

malice aforethought often evades direct evidence.”). The relationship between
                                        9


the state of mind, malice aforethought, and the homicidal act “is more accurately

characterized as a causal relationship than as a temporal relationship.” State v.

Bentley, 757 N.W.2d 257, 265 (Iowa 2008). “In other words, the malice must

result in the homicidal act.” Id. Our supreme court has stated, “Evidence of bad

feelings or quarrels between the defendant and the victim are circumstances that

may be used to support a finding of malice aforethought. Malice may also be

inferred from the use of a deadly weapon.” Buenaventura, 660 N.W.2d at 49

(citing State v. Reeves, 636 N.W.2d 22, 25–26 (Iowa 2001)). This permissive

inference of malice aforethought may be rebutted by evidence showing the killing

was “accidental, under provocation, or because of mental incapacity.” State v.

Reeves, 670 N.W.2d 119, 207 (Iowa 2003).

      Hansen points to evidence, primarily his own testimony, which he

contends establishes he did not act with malice aforethought but “in the heat of

passion and without an understanding of the nature of his acts or their possible

consequences.” It was for the jury to determine whether Hansen’s testimony was

credible. See State v. Blair, 347 N.W.2d 416, 420 (Iowa 1984) (stating that

“evidence, if deemed credible by the jury, would substantiate defendants’ alibi

and serve to acquit defendants,” but noting “the jury is at liberty to believe or

disbelieve the testimony of witnesses as it chooses”). “The jury is free to believe

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

its judgment such evidence should receive.” State v. Thornton, 498 N.W.2d 670,

673 (Iowa 1993). To reach their verdict, it is the function of the jury to sort out

the evidence presented and place credibility where it belongs. Blair, 347 N.W.2d

at 420; see also State v. Musser, 721 N.W.2d 758, 761 (Iowa 2006) (“It is not the
                                         10


province of the court . . . to resolve conflicts in the evidence, to pass upon the

credibility of witnesses, to determine the plausibility of explanations, or to weigh

the evidence; such matters are for the jury.”).

       Hansen acknowledged he was angry on May 1 and that he told police his

“blood was boiling.”     He stated he “just couldn’t take it anymore.”         See

Buenaventura, 660 N.W.2d at 49 (“Evidence of bad feelings or quarrels between

the defendant and the victim are circumstances that may be used to support a

finding of malice aforethought.”). Rather than leave when Gerot began to mow

the yard, Hansen retrieved a handgun from its holster in a tote in the garage. He

walked through the garage and into the house. He passed through the kitchen to

the patio doors and fired, shooting Gerot in the head. These circumstances

provided ample evidence from which a jury could find that the defendant acted

with a fixed purpose or design to do physical harm to Gerot. See id. at 50; see

also State v. Wedebrand, 602 N.W.2d 186, 189 (Iowa Ct. App. 1999) (“Proof of

the requisite intent or malice aforethought may be accomplished by inferences

made from the acts and conduct of the defendant and the means used in doing

the wrongful and injurious acts.”). There is substantial evidence from which a

jury could conclude Hansen acted with malice aforethought.

       B. Jury instructions.     Hansen contends he was denied due process

because the jury instructions allowed the jury to infer malice simply because he

used a gun, which relieved the State from its burden to prove his guilt beyond a

reasonable doubt. See In re Winship, 397 U.S. 358, 364 (1970) (“[T]he Due

Process Clause protects the accused against conviction except upon proof
                                           11


beyond a reasonable doubt of every fact necessary to constitute the crime with

which he is charged.”).

       The State contends Hansen’s argument on appeal is different than

presented to the trial court, and therefore, the issue is not properly before us.

See State v. Rutledge, 600 N.W.2d 324, 325 (Iowa 2000) (“Nothing is more basic

in the law of appeal and error than the axiom that a party cannot sing a song to

us that was not first sung in trial court.”). At trial, Hansen’s argument with respect

to an impermissible inference was addressed to the charge of first-degree

murder.2    Even if we presume the objection also addressed the charge of

second-degree murder, arguments similar to Hansen’s have been rejected by our

supreme court in Henderson v. Scurr, 313 N.W.2d 522, 526 (Iowa 1981), and

State v. Elam, 328 N.W.2d 314, 318 (Iowa 1982). In Elam, 328 N.W.2d at 318,

the defendant argued his due process rights were violated by a jury instruction,

which read,

              You are instructed that a shotgun is a dangerous weapon.
              You are further instructed that when a person intentionally
       uses a dangerous weapon against another and death results, you
       may, but are not required to infer that the killing was with malice
       aforethought.
              You are also instructed that if a person, with opportunity to
       deliberate, intentionally uses a dangerous weapon against another

2
 Defense counsel stated:
              I object to Instruction Number 21 and Number 22, essentially on
      the same basis that those instructions violate due process of law under
      the 14th Amendment to the United States Constitution and article I,
      section 9 of the Iowa Constitution, in that the court basically relieves the
      State from proving beyond a reasonable doubt numerous elements of the
      charge of first-degree murder, including those of malice, premeditation,
      and specific intent to kill. And I believe those two instructions constitute
      improper judicial comment on the evidence in terms of focusing the jury
      on very specific bits of evidence in this case and telling them what their
      inference can be as to whether the State has proved the elements.
(Emphasis added.)
                                        12


      and death results, you may, but are not required to, infer, in the
      absence of evidence to the contrary, that such weapon was used
      with malice, deliberation, premeditation and a specific intent to kill.

The Elam court wrote,

              The defendant asserts that this instruction violates his
      constitutional right to due process by shifting the burden of proof as
      it “creates the possibility that a reasonable juror could believe that
      the instruction relieved the State of the burden of proving [he] acted
      with malice.” The defendant acknowledges that a similar instruction
      before this court has withstood a constitutional due process
      challenge in Henderson v. Scurr, 313 N.W.2d 522, 526 (Iowa
      1981), but he submits that the instruction in the present case
      “differs significantly” from the one given in Henderson, arguing it
      does not contain an additional paragraph found in Henderson which
      told the jury that the inference of malice from the use of a
      dangerous weapon is not conclusive, and may be considered with
      all the evidence in the case. Id. at 524.
              The proper inquiry, as pointed out by the State, is whether
      the instruction fully apprised the jury of their option to reject the
      inference of malice, i.e., whether it clearly conveyed to the jury that
      the inference was permissive. See Ulster [Cnty. Ct. v. Allen, 442
      U.S. 140, 156-57] (1979) (distinguishing a permissive inference
      from a mandatory presumption and discussing its effect on burden
      of proof). It would appear the instruction properly conveyed this
      option, and thus did not unconstitutionally shift the burden of proof.
      This position is supported by the fact that the term “infer” rather
      than “presume” was used, see State v. Rinehart, 283 N.W.2d 319,
      321-23 (Iowa 1979), cert. denied, 444 U.S. 1088, 100 S. Ct. 1049,
      62 L. Ed. 2d 775 (1980) (“right to infer” language “fully apprised” the
      jury of their option to reject the inference), and by the trial court’s
      characterization of the inference, stating: “you may, but you are not
      required to infer,” (such language would appear equivalent to the
      last paragraph in Henderson, 313 N.W.2d at 524).
              In addition, defendant argues that the burden of proof as to
      deliberation, premeditation, and specific intent to kill was
      impermissibly shifted by use of the language “in absence of
      evidence to contrary.” This court has previously held that such
      language, while surplusage, does not unconstitutionally shift the
      burden of proof to the defendant. See State v. Jeffries, 313 N.W.2d
      508, 509-10 (Iowa 1981). We continue to adhere to this view.

328 N.W.2d at 318.
                                        13


      Here, Instructions Nos. 2 and 3 clearly informed the jury that the State was

required to prove the defendant guilty beyond a reasonable doubt. Instruction

No. 17 informed the jury:

              The State must prove all of the following elements of Murder
      in the First Degree:
              1. On or about May 1, 2011, in Washington County, Iowa,
      the defendant shot Sharon Gerot.
              2. Sharon Gerot died as a result of being shot.
              3. The defendant acted with malice aforethought.
              4. The defendant acted willfully, deliberately, premeditatedly,
      and with the specific intent to kill Sharon Gerot.
              If the State has proved all the elements, the defendant is
      guilty of Murder in the First Degree. If the State has failed to prove
      any one of the elements, the defendant is not guilty of Murder in the
      First Degree and you will then consider the charge of Murder in the
      Second Degree, explained in Instruction No. 26.

      The jury was informed of the permissive inference that may arise from a

person’s use of a dangerous weapon:

                            INSTRUCTION NO. 21
            If a person has the opportunity to deliberate and uses a
      dangerous weapon against another resulting in death, you may, but
      are not required to, infer that the weapon was used with malice,
      premeditation, and the specific intent to kill.

      Additionally, the jury was instructed:

                            INSTRUCTION NO. 22
             Malice aforethought may be inferred from the defendant’s
      use of a dangerous weapon.

                          INSTRUCTION NO. 23
           You are instructed that a handgun, by law, is a dangerous
      weapon.

      And the elements of murder in the second degree were stated as follows:

               1. On or about May 1, 2011, the defendant shot Sharon
      Gerot.
               2. Sharon Gerot died as a result of being shot.
               3. The defendant acted with malice aforethought.
                                           14


              If the State has proved all the elements, the defendant is
       guilty of Murder in the Second Degree. If the State has failed to
       prove any one of the elements, the defendant is not guilty of Murder
       in the Second Degree and you will then consider the charge of
       Voluntary Manslaughter, explained in Instruction No. 29.

       We conclude the instructions correctly state the law and are supported by

substantial evidence. See id. Instructions No. 21 and 22 were not specifically

referenced in either the first-degree or second-degree murder instruction. The

jury was instructed that they were required to consider all the instructions

together as no one instruction includes all the applicable law. 3           When read

together, the jury instructions fully apprised the jury of their option to reject the

inference of malice. See id.; see also Allen, 442 U.S. at 156 (“[T]he ultimate test

of any device’s constitutional validity in a given case remains constant: the

device must not undermine the factfinder’s responsibility at trial, based on

evidence adduced by the State, to find the ultimate facts beyond a reasonable

doubt.”). We conclude the jury instructions did not deprive Hansen of his right to

due process.

       C. Evidentiary rulings.

       Hansen did testify at trial. We have set out some of his testimony earlier

in this opinion. On appeal, however, he contends the trial court erred in ruling his

pretrial statement was inadmissible hearsay. He points to no specific statement

made during the interview that he believes should have been admitted. Rather,

Hansen sought to admit, via testimony by DCI investigator Jeff Uhlmeyer, a


3
  In evaluating jury instructions, “we must read all of the instructions together, not
piecemeal or in artificial isolation.” State v. Bennett, 503 N.W.2d 42, 45 (Iowa Ct. App.
1993).
                                          15


transcript of his interview with the Uhlmeyer and another investigator, Chad Ellis,

conducted at the DCI on May 1. In his offer of proof, Hansen submitted the

thirty-six-page transcript of his recorded interview with the investigators. The

interview began at 7:30 p.m. and ended about 8:45 p.m.               Defense counsel

argued the transcript should be admitted as an excited utterance or under the

residual exception to the hearsay rule so the defendant would not have to testify.

The district court ruled the recorded interview was inadmissible hearsay. On

appeal, Hansen challenges that ruling.

       “‘Hearsay’ is a statement, other than one made by a declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the

matter asserted.” Iowa R. Evid. 5.801. Hansen’s out-of-court statements (and

the law enforcement officers’ questions that evoked them) were being offered to

substitute for Hansen’s trial testimony and to prove the truth of the matters

asserted, without the inconvenience of cross-examination: they were hearsay.4

Defense counsel’s arguments to the court acknowledge as much.

       Rule 5.803 provides certain statements are not excluded by the hearsay

rule “even though the declarant is available as a witness,” including, “[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.” Iowa R. Evid.

5.803(2).


4
  Hansen’s pretrial statements to do not qualify as “not hearsay” under rule 5.801(d)(2)
(admission of party-opponent) because “such statements are admissible only when
offered against the party who made the statements.” State v. Veal, 564 N.W.2d 797,
808 (Iowa 1997), overruled in part on other grounds by State v. Hallum, 585 N.W.2d
249, 253-54 (Iowa 1998); see also State v. Hines, 790 N.W.2d 545, 553 (Iowa 2010)
(citing Veal).
                                         16


              The application of the [“excited utterance”] exclusion lies
       largely within the discretion of the trial court, which should consider
       (1) the time lapse between the event and the statement, (2) the
       extent to which questioning elicited the statements that otherwise
       would not have been volunteered, (3) the age and condition of the
       declarant, (4) the characteristics of the event being described, and
       (5) the subject matter of the statement.

State v. Atwood, 602 N.W.2d 775, 782 (Iowa 1999). Relying upon Veal, 564

N.W.2d at 808, the district court ruled the defendant’s statements did not fall

under the excited utterance exception.        The court also ruled the residual

exception, rule 5.807, did not apply. We agree.

       “Obviously, an excited utterance must be made under the influence of the

excitement of the incident rather than upon reflection or deliberation.” Id. Here,

Hansen’s statement was made several hours after he shot Gerot. The interview

lasted about an hour and fifteen minutes. Hansen offered the transcript of his

interview, which includes almost forty pages of questions and answers. The

statements were not spontaneous but made after he received Miranda warnings

and in response to the investigators’ questions. See Veal, 564 N.W.2d at 808

(“Veal’s statements were not spontaneous, as required for the excited utterance

exception.”).   Moreover, Hansen, had several years’ experience with law

enforcement, which he refers to in his interview. The trial court did not abuse its

discretion in ruling Hansen’s recorded statement did not fall within the excited

utterance exception.

       Nor did the trial court abuse its discretion in rejecting Hansen’s argument

that the statement should be admissible under the residual exception to the

hearsay rule. The residual exception provides:
                                        17


       A statement not specifically covered by any of the exceptions in
       rules 5.803 or 5.804 but having equivalent circumstantial
       guarantees of trustworthiness, is not excluded by the hearsay rule,
       if the court determines that (A) the statement is offered as evidence
       of a material fact; (B) the statement is more probative on the point
       for which it is offered than any other evidence which the proponent
       can procure through reasonable efforts; and (C) the general
       purposes of these rules and the interests of justice will best be
       served by admission of the statement into evidence. However, a
       statement may not be admitted under this exception unless the
       proponent of it makes known to the adverse party sufficiently in
       advance of the trial or hearing to provide the adverse party with a
       fair opportunity to prepare to meet it, the proponent’s intention to
       offer the statement and the particulars of it, including the name and
       address of the declarant.

Iowa R. Evid. 5.807.      Under the residual exception, the proponent of the

evidence must show trustworthiness, materiality, necessity, service of the

interests of justice, and notice. See State v. Neitzel, 801 N.W.2d 612, 622–23

(Iowa Ct. App. 2011).     Hansen did not establish these factors; we observe

specifically he provided no notice in advance of trial of his intent to offer his

statement.   The residual exception does not offer a broad license to admit

hearsay statements not covered by delineated exceptions; it is to be used “very

rarely and only in exceptional circumstances.” State v. Brown, 341 N.W.2d 10,

14 (Iowa 1983). This is not such an exceptional circumstance. The trial court did

not abuse its discretion in declining to admit the recorded interview into evidence.

       D. Chain of custody objection.         Hansen contends the district court

improperly overruled his foundation and chain-of-custody objections to testimony

by DCI criminalist Victor Murillo, concluding a spent shell casing had been fired

from the .40-caliber handgun found at Hansen’s home. Unless there is a clear

abuse of discretion, we will not overturn a ruling of the district court determining
                                          18


whether the State has shown the chain of custody necessary for admission of

physical evidence. State v. Biddle, 652 N.W.2d 191, 196 (Iowa 2002).

       Hansen contends there is a gap in the chain of custody of the handgun

and the shell casing because Agent Uhlmeyer, to whom Agent Sandhu and

Trooper Grier turned over the items, did not testify. Our supreme court has

observed:

               It is true that “[f]ailure to account for continuous custody or to
       negate any reasonable probability of tampering or substitution of
       evidence ordinarily is fatal to the State’s case.” However, to
       establish a chain of custody adequate to justify admission of
       physical evidence, the State must show only “circumstances
       making it reasonably probable that tampering, substitution or
       alteration of evidence did not occur. Absolute certainty is not
       required.” The burden is heavier when the evidence offered is an
       item that is very susceptible to tampering, like drugs. When the
       district court has determined that the State has established a
       sufficient foundation for the admission of the physical evidence, any
       speculation to the contrary affects the weight and not the
       admissibility of the evidence.

Id. at 196-97 (citations omitted).

       “[I]n establishing a chain of custody adequate to justify admission of

physical evidence, the State only need show circumstances making it reasonably

probable that tampering, substitution or alteration of evidence did not occur.”

State v. Bakker, 262 N.W.2d 538, 542-43 (Iowa 1978). Agent Sandhu testified to

the location where the .40-caliber handgun and the spent shell casing were found

in Hansen’s kitchen. Photographs of the items were introduced. Agent Sandhu

testified he packaged the items and turned them over to Agent Uhlmeyer who

sent them to the DCI laboratory for analysis. There is no suggestion of any

tampering and no evidence the individuals who seized the evidence were

improperly motivated or unreliable. We find no clear abuse of discretion here.
                                         19


       E. Motion for new trial.      Finally, Hansen contends that “at the very

minimum,” he should be awarded a new trial because the weight of the evidence

was that he did not act with malice aforethought when he fired the handgun. “A

verdict is contrary to the weight of the evidence where a greater amount of

credible evidence supports one side of an issue or cause than the other.” State v.

Shanahan, 712 N.W.2d 121, 135 (Iowa 2006) (internal quotation marks omitted).

The district court has considerable discretion when determining a motion for new

trial under the weight-of-the-evidence test. Id. “Except in the extraordinary case

where the evidence preponderates heavily against the verdict, trial courts should

not lessen the jury’s role as the primary trier of facts and invoke their power to

grant a new trial.” Id. Here, the evidence does not preponderate heavily against

the verdict, and we find no abuse of discretion in the district court’s denial of the

motion for new trial.

       AFFIRMED.
