                    IN THE COURT OF APPEALS OF IOWA

                                  No. 18-0209
                           Filed November 27, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JAMES RUSSELL WALDEN JR.,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Robert J. Blink, Judge.



      The defendant appeals from his conviction for murder in the first degree.

AFFIRMED.



      Randall L. Jackson of Law Office of Randall L. Jackson, Des Moines, for

appellant.

      Thomas J. Miller, Attorney General, and Darrel Mullins, Assistant Attorney

General, for appellee.



      Heard by Doyle, P.J., and Tabor and Schumacher, JJ.
                                         2


TABOR, Judge.

      Sheila Keenan died after suffering twenty-six blunt force wounds to her

head including two that fractured her skull and caused severe brain hemorrhaging.

James Walden Jr. appeals the jury verdict finding him guilty of first-degree murder

in Keenan’s death. Most of his appellate claims focus on the State’s failure to

identify a specific murder weapon. For instance, he contends the district court

erred in allowing the jury to infer his intent from the use of a dangerous weapon.

He further contends the verdict is unsupported by sufficient evidence and is against

the weight of the evidence. He also contends his trial counsel rendered ineffective

assistance by asking about the weapon on cross-examination. In an unrelated

issue, he contends the district court erred in admitting evidence related to sexual

assault that was excluded under a pretrial ruling.

      On that last issue, we find the district court’s remedy for the accidental

admission of sexual assault evidence did not prejudice Walden. On the weapon

claims, we find the court properly instructed the jury regarding inferences from the

use of a dangerous weapon. And the court appropriately overruled Walden’s

motions for judgment of acquittal and new trial. We preserve the ineffective-

assistance-of-counsel claim for possible postconviction-relief (PCR) proceedings.

   I. Facts and Prior Proceedings

      Before her violent death, Keenan lived with her boyfriend, Famous Grady,

at the southeast Des Moines home of her sister and brother-in-law, Claudia and

James Sadler. Keenan and James were friends with Jeremy Snyder. In early
                                          3


March 2017, Keenan spent a few days at Snyder’s apartment downtown.1 On

March 6, Keenan socialized at Snyder’s apartment with Walden and Kelly

Coleman, who is Snyder’s friend and Keenan’s cousin. Snyder left the apartment

around noon to work on his car, which was parked on the street out front. The

others stayed in the apartment, watching television. Coleman headed home mid-

afternoon.   Meanwhile, Snyder’s friend, Gary Johnson, who also lived in the

building, joined him out front. Snyder turned his attention to the bent fender on

Johnson’s car.

       Around 5:00 p.m., Snyder and Johnson decided they needed to pick up

tools and supplies. Before leaving Snyder ducked into his apartment and saw

Keenan and Walden watching television.

       Also that afternoon, Brian Jeffries came to Snyder’s apartment looking for

his fiancée, Stacy, whom he knew to frequent several apartments in the building.

Jeffries met Snyder through Stacy. Jeffries did not remember the exact time he

knocked on Snyder’s door but recalled it was dark outside. No one answered his

knock at first. But eventually someone asked who it was, and Jeffries responded,

“Brian.” Jeffries knew Walden, who opened the door. Walden was wearing “his

Chicago Bulls hat that he normally wears.” Jeffries asked if Stacy was there, and

Walden said no. Walden told Jeffries “he rented the apartment from Jeremy . . . so

he could have time to sleep with the girl in there.” Jeffries had no reason to believe

the girl was Stacy, so he left.




1
  Several witnesses suggested she spent the weekend with Snyder abusing drugs. And
a toxicology report on Keenan’s body was positive for methamphetamine, marijuana, and
cocaine.
                                          4


       About forty minutes later, Jeffries returned. This time, when he knocked on

Snyder’s door, Walden stepped out. A drunken neighbor joined them, and Walden

“told us to get the hell out of there and just take off. He was serious. He was just

wanting us to leave.” Walden did not have his Bulls hat on anymore and “looked

glazed, glossy, like he’d been sweating a little bit.” Jeffries added, “To me it looked

like he was—like—I don’t know. Like you would if—after you—you know, you’ve

been with a woman.” Jeffries said to Walden, “You wouldn’t hurt me, would you?

I’m your friend.” And Walden said, “No, I wouldn’t but I want you to leave.” Jeffries

left and did not return that night.

       Meanwhile, Snyder and Johnson were running errands around town. They

returned between 8:00 and 9:00 p.m. and continued working on Johnson’s car.

Later they went upstairs to Snyder’s apartment. Walden answered, wearing shorts

and no shirt; he had a white t-shirt slung over his shoulder. Snyder entered, while

Johnson stood outside the door and eventually went back to his own apartment.

       In the apartment, Snyder saw Walden wiping what appeared to be blood

onto his white t-shirt. Walden told Snyder “he had to knock her out because she

was in his pockets.” As Snyder walked into the apartment and turned a corner, he

saw Keenan face down on the floor with blood around her head. Walden was

standing between Snyder and the exit. Snyder feared for his own safety. So he

grabbed his dog from its kennel and told Walden, “I’m going to take my dog outside,

and then let’s get this figured out.” Walden gave Snyder “a bro hug,” and told him

he was “the only one he could trust.” Snyder left for Coleman’s place, but Coleman

was not there. So Snyder tried to find Coleman at the Sadlers’ house.
                                         5


      After returning to his own apartment, Johnson stepped into the stairwell and

saw Walden walking up the stairs. Johnson thought Walden was coming from the

trash area or laundry room. Walden carried trash bags.

      Meanwhile, Snyder found Coleman at the Sadlers’ house. They drove back

to Snyder’s apartment with Claudia, James, and Grady following in a separate

vehicle. Snyder handed Coleman the apartment key, and Coleman and James

went upstairs. They saw Walden “just standing there” in the apartment. Coleman

saw Keenan laying face down on the floor. He asked Walden, “What the fuck

happened?” Walden’s only response was, “Where’s Jeremy?” Coleman left and

called 911. Walden tried to make a run for it, but Coleman and James waylayed

him until a police officer arrived and took him into custody. When he was arrested,

Walden was wearing a black Chicago Bulls shirt and a pair of Snyder’s jeans.

      The State charged Walden with murder in the first degree. See Iowa Code

§ 707.1, 707.2(1)(a) (2017). At his jury trial, the State presented the testimony of

several witnesses who interacted with Walden that day. In addition to those

witnesses, a criminalist with the Iowa Division of Criminal Investigations (DCI)

testified about the physical evidence.       A garbage bag inside the apartment

contained three bloody articles: a grey sweatshirt, a navy-blue sweatshirt, and a

pair of black sweatpants. The DNA on the sweatshirts matched Keenan’s profile.

The DNA on the sweatpants came from two individuals but the major—and only

discernable—contributor was Keenan. Seminal fluid on the sweatpants did not

match any known contributors in the case. Investigators found another set of

clothing in the laundry room. A pair of worn, dirty, khaki pants stained with blood

contained DNA matching the profiles of Walden, Snyder, and Keenan. Snyder
                                            6


later identified these as his khaki pants. A Nike t-shirt had a mixture of DNA from

three individuals but only Walden’s was detectable. And a green fleece jacket

contained no testable stains. Law enforcement never recovered a white t-shirt.

       Retired Polk County Medical Examiner Francis Garrity2 testified to the

aftermath of the brutal attack on Keenan. He described how Keenan had twenty-

six “abraded lacerations” around her head and face. Dr. Garrity defined “abraded

lacerations” as “injuries as a result of a crushing force, crushing in the sense that

the object used contacts the skin and then causes it to split.” He further explained,

“In the case of an abraded laceration, the instrument used hits the skin and causes

an abrasive injury on both sides of the wound.” Those fractures would have

caused considerable hemorrhage in the brain and significant blood loss. Two

blows resulted in underlying skull fractures. One broke her jaw.

       Referencing the jaw fracture, Dr. Garrity also noted an injury to Keenan’s

lips saying, “[T]here was an extensive fracture of the maxilla horizontally across

the face. . . . One could actually separate the top from the bottom of the maxilla.

A large fracture associated with this particular blow.” The prosecutor asked, “[D]o

you have any idea of the amount of force necessary to do something like that?”

Dr. Garrity explained, “[I]t’s difficult to say but it would be considerable, given the

extent of the fracture to the maxilla. The maxilla is a fairly firm bone.”




2
  Although retired, Dr. Garrity maintains his medical license and is occasionally called to
“fill in for” the current medical examiner. He served in that capacity during this case.
                                            7


       Dr. Garrity explained other compound3 injuries and stated, “[I]n my mind or

in my opinion, [they] are the result of multiple blows in that particular spot.” Then

he explained that where an instrument crushes the skin’s surface, as well as the

underlying tissue, “causing a bridging from one side of the wound to another . . .

That’s the hallmark of an abraded laceration.”

       The medical examiner also chronicled an array of other injuries. Keenan

had a black left eye and bruising around the face. The autopsy also revealed

defensive wounds, for instance, bruising on the back of her left hand. She also

had blood smear and spatter on her right hand. An area on her lower back also

reflected “very significant blunt force trauma” that resulted in “substantial

subcutaneous and intramuscular hemorrhage.”             Comparing these findings to

“sharp force” injuries inflicted by a knife, Dr. Garrity said, “[C]onsiderable force had

to be applied to the surface of the skin to cause it to breach and to tear.” Dr. Garrity

found the cause of death to be “multiple blunt force injuries to the head” and the

manner of death to be “homicide.”

       In the performance challenged on appeal, defense counsel cross examined

Dr. Garrity about the missing murder weapon: “[Y]ou can’t really speculate what

the object was, but it would have been something of substance or thickness;

correct?” Dr. Garrity said, “Right.” Defense counsel also asked Dr. Garrity about

the blood splatter evidence. Dr. Garrity explained, “Back splatter relates to the

spray or discharge of blood from an instrument that is indeed bloody. As the




3
  Dr. Garrity explained compound injuries as “represent[ing] several abraded lacerations,
one on top of the other. . . . [W]e generally describe those in forensic terms as compound
injuries, multiple fractures, maybe one or two blows.”
                                             8


instrument is being wielded in space . . . blood would basically spatter off.” And

again counsel clarified, “[I]t would have been an instrument of some significance,

meaning thickness?” to which Dr. Garrity replied yes.

         At the close of the State’s evidence, Walden moved for judgment of acquittal

arguing insufficient evidence of malice aforethought, premeditation, and specific

intent. Walden emphasized the State’s failure to produce a murder weapon.

Walden also objected to an instruction telling the jury it could infer malice from the

use of a dangerous weapon. The court rejected Walden’s complaint about the

dangerous-weapon instruction:

         I think it’s close. . . . I think the question or questions that [Walden]
         posited [to the medical examiner] in trying to infer that he could not
         identify a specific instrumentality that was used prompted a response
         that some instrumentality was used, and I think that is—I think that’s
         adequate.[4]

The court also overruled Walden’s motion for judgment of acquittal. The jury

returned a verdict finding Walden guilty of first-degree murder. Walden appeals.

      II. Analysis

         Walden raises five claims on appeal.

     The district court abused its discretion in not declaring a mistrial when a State’s
      witness introduced the topic of sexual assault.

     The district court erred by instructing the jury it could infer malice aforethought
      from the use of a dangerous weapon.

     The verdict is not supported by substantial evidence the dangerous weapon
      existed or was used.

     The verdict is against the weight of the evidence.

     Trial counsel was ineffective in bringing up the weapon in cross-examination.


4
    The court added, “[A]nd now you’ve gotten an appeal issue.”
                                          9


   We will address each issue in turn.

   A. Sexual assault evidence

       Before trial the defense asked the court to prohibit witnesses “from making

statements that insinuate or speculate that . . . Walden sexually assaulted Sheila

Keenan.” The State agreed to “instruct witnesses not to speculate about the

defendant sexually assaulting the victim.” But the State maintained its intent to

present Jeffries’s testimony that Walden said he was using the apartment to have

sex with the woman inside. The defense was satisfied with the State’s response,

explaining its motion did not seek to exclude Jeffries’s testimony on that issue.

       Then, despite the State’s agreement, Claudia Sadler volunteered on direct

examination she told a police officer she “wanted to have a rape kit done” on her

sister’s body. The State did not inquire further about the rape kit. But Walden

moved for a mistrial. The court found the prosecutor had not intentionally elicited

that testimony and did not anticipate Claudia’s response. Still, the court found a

“clear violation” of the limine ruling. The court discussed possible prejudice:

       The inference that is now in the record is that there may have been
       a sexual component to the homicide with which Mr. Walden has been
       accused. There might also be an inference drawn from this record
       by reasonable people that there was some sexual liaison between
       the decedent and Mr. Walden.
               The Court has been informed prior to trial that in—there was
       a medical examination done of the decedent, indicating that she had
       not been sexually assaulted. And while I am not certain of this,
       Counsel can supplement the record as to whether or not the sexual
       assault kit even indicated that there was any sexual activity between
       the decedent and the defendant.
               Assuming that latter situation to be the case, if this inference
       is not remedied in the record, there is clear prejudice that would
       justify a mistrial. The question, then, is what remedy might be offered
       to prevent the type of prejudice that would justify a mistrial, which is
       the fourth stage of the analysis.
                                         10


             The suggestion that some type of curative instruction would
       address this, I think, is insufficient. . . .

The district court then ventured a possible solution:

              If in fact the indisputable medical evidence shows, one, that
       the decedent was not sexually assaulted and that there was no
       sexual liaison between the defendant and the decedent, it seems to
       me that any adverse inference from the unintentional statement of
       Ms. Sadler can be ameliorated by the Government offering into
       evidence the undisputed evidence to that effect. That would make
       the record clear that this defendant did not have a sexual liaison with
       the decedent, this defendant did not sexually assault the decedent.
              So my thought at this point is that, short of a mistrial, this
       problem can be remedied by having the State affirmatively offer the
       medical evidence, which is clearly exculpatory of the defendant.

       The State later offered the rape kit into evidence. As part of its admission,

the DCI criminalist testified no seminal fluid was present on oral, rectal, or vaginal

swabs. A pubic hair comb revealed DNA from two contributors that was too weak

for analysis. And blood found under her fingernails contained only Keenan’s DNA.

       On appeal, Walden contends the district court abused its discretion in

denying his motion for mistrial. He argues the court’s remedy did not ameliorate

the unfair prejudice. He also asserts other statements throughout trial improperly

implied sexual contact between him and Keenan. He insists he suffered undue

prejudice by the admission of this evidence.

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

State v. Plain, 898 N.W.2d 801, 810 (Iowa 2017). An abuse of discretion occurs

when the court “exercises its discretion on grounds clearly untenable or to an

extent clearly unreasonable.” State v. Wickes, 910 N.W.2d 554, 564 (Iowa 2018)

(quoting State v. Hill, 878 N.W.2d 269, 272 (Iowa 2016)). Trial courts have broad

discretion in ruling on motions for a mistrial. State v. Brown, 397 N.W.2d 689, 699
                                           11


(Iowa 1986). We reverse only when that discretion “’was exercised on grounds or

for reasons clearly untenable or to an extent clearly unreasonable.’” State v.

Huser, 894 N.W.2d 472, 498 (Iowa 2017) (quoting State v. Brewer, 247 N.W.2d

205, 211 (Iowa 1976)). To establish reversible error, Walden must show the

violation of the limine order “resulted in prejudice that deprived [him] of a fair trial.”

State v. Frei, 831 N.W.2d 70, 80–81 (Iowa 2013), overturned on other grounds by

Alcala v. Marriot Int’l Inc., 880 N.W.2d 699, 708 n.3 (Iowa 2016).

       Walden contends the error went beyond Claudia’s inadvertent testimony.5

He complains the State persisted throughout trial in “inferring a sexual act” which

“creat[ed] the improper and unsupported inference that a Defendant predisposed

to violence to women had sexual contact with the victim and failed to explain that

the sexual assault kit ruled out sexual assault and/or a liaison.” He complains that

during opening statements the prosecutor referred to a piece of Walden’s clothing

as a “wife-beater” shirt.    He also cites Jeffries’s testimony relaying Walden’s

statement he rented Snyder’s apartment to sleep with a woman and was sweating

as though he had just “been with a woman.”

       Central to his claim, Walden argues “the introduction of the sexual assault

kit results was not only insufficient to cure the prejudice to the Defendant, it actually

made the impermissible inference of sexual assault and/or liaison worse.” He

complains “the jury was left to possibly conclude that two people had a sexual



5
  The State does not contest error preservation on these claims. A review of the record
shows no contemporaneous objections other than the motion for mistrial following
Claudia’s testimony. Generally, the defendant must object to the introduction of
inadmissible evidence to preserve error. State v. Frazier, 559 N.W.2d 34, 39 (Iowa Ct.
App. 1996). We will address the claims on appeal because the State does not challenge
error preservation.
                                         12


liaison” and this furthered the inference Walden assaulted Keenan during a sexual

liaison.

       The situation here is somewhat unusual—the court did not admonish the

jury, strike the evidence, or give a curative instruction to lessen any prejudice from

Claudia’s mention of the rape kit. Instead it secured the State’s agreement to offer

evidence showing the rape kit testing was actually exculpatory to Walden. We

have not found a similar situation arising in our case law. But we need not address

whether the court’s creative problem-solving was appropriate because we resolve

the issue on the prejudice ground.

       At bottom, it is not critical to decide if the encounter between Walden and

Keenan was sexual in nature. Even if the State offered evidence that cumulatively

led to an inference the two had a sexual liaison, that fact does not require the jury

to infer Walden killed Keenan with malice aforethought or specific intent.

       As the district court noted, the rape-kit evidence did not support allegations

of sexual abuse. The criminalist found no seminal fluid in Keenan’s oral, rectal, or

vaginal swabs. The blood under Keenan’s fingernails was her own. And although

a pubic comb showed a mix of hair, none was linked to Walden. The seminal fluid

on the black sweatpants similarly did not contain Walden’s DNA. So Claudia’s

mention of the rape kit, coupled with the court’s prescribed cure of more evidence

about the kit, did not prejudice Walden’s defense.

       Neither do we find Walden was unfairly prejudiced by other evidence

suggesting he had sex with Keenan.          The jurors could have drawn various

inferences from Jeffries’s testimony that Walden appeared sweaty and claimed to

be renting the apartment to have sex with a woman. Given the absence of seminal
                                             13


fluid in the rape kit, the jury could have viewed Walden’s condition as pointing to

strenuous physical activity consistent with cleaning up a crime scene.

       Nor do we find prejudice arising from the prosecutor’s use of the term “wife-

beater” shirt6 during opening statements to describe Walden’s clothing at the time

of the crime. The reference did not suggest sexual activity. And the prosecutor

did not repeat that reference. Prejudice is less likely to flow from an isolated

incident than “persistent efforts to place prejudicial evidence before the jury.” State

v. Greene, 592 N.W.2d 24, 32 (Iowa 1999). Here, Walden has failed to show this

singular mention affected his case.

       Overall, any hints of sexual conduct in the record pale in comparison to the

medical evidence documenting the brutal assault on Keenan.                      Dr. Garrity

described the blunt force trauma necessary to inflict the twenty-six wounds to her

head and face. Walden has failed to show he suffered unfair prejudice from the

remedy fashioned by the district court.

    B. Jury Instruction on Dangerous Weapon Inference

       Walden next contends the district court erred in giving the jury the inference

instruction on dangerous weapons. He argues insufficient evidence pointed to the

existence of the murder weapon so the jury could not consider whether it was used

in a manner indicating malice or intent to kill.

       We review his claim for correction of errors at law. See State v. Neiderbach,

837 N.W.2d 180, 190 (Iowa 2013). “Evidence is substantial to support submission




6
 A “wife beater” shirt is a colloquial reference to a white tank top, which is not necessarily
a comment on the wearer’s propensity for domestic violence. See State v. Condit, No.
15-1547, 2007 WL 1342511, at *5 (Iowa Ct. App. May 9, 2007).
                                             14


of an instruction to the jury when a reasonable mind would accept the evidence as

adequate to reach a conclusion.” State v. Hogrefe, 557 N.W.2d 871, 876 (Iowa

1996) (citation omitted). “In determining whether there is substantial evidence to

support submission of an instruction to the jury, we view the evidence in the light

most favorable to the party requesting the instruction.” Id.

       We start with the marshalling instruction. To find Walden guilty of murder

in the first degree, the jury had to find:

              1. On or about the 6th day of March, 2017, the defendant beat
       Sheila Keenan.
              2. Sheila Keenan died as a result of being beaten.
              3. The defendant acted with malice aforethought.
              4. The defendant acted willfully, deliberately, premeditatedly
       and with a specific intent to kill Sheila Keenan.

The court’s instructions also defined malice and malice aforethought:

              “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.

“Because it is a state of mind, malice aforethought often evades direct evidence.”

State v. Serrato, 787 N.W.2d 462, 469 (Iowa 2010). But it “may be inferred by

conduct.” Id.
                                           15


       Our law recognizes such an inference when the defendant uses a

“dangerous weapon.” The court instructed Walden’s jury the use of a dangerous

weapon may support a finding of the requisite intent for murder:

              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 specific intent to kill.
              Malice aforethought may be inferred from the defendant’s use
       of a dangerous weapon.

The court defined a dangerous weapon as

       any device or instrument designed primarily for use in inflicting death
       or injury, and when used in its designed manner is capable of
       inflicting death. It is also any sort of instrument or device which is
       actually used in such a way as to indicate the user intended to inflict
       death or serious injury, and when so used is capable of inflicting
       death.

       In response to Walden’s motion for judgment of acquittal, the State argued

the jurors could decide from the nature of the victim’s injuries that Walden used an

instrument of some kind to inflict death. But the State conceded it was unable to

produce that instrument. On appeal Walden renews his argument that the jury

could not be instructed about a dangerous weapon in the absence of any evidence

linking the victim’s injuries to specific instrument.

       Our supreme court discussed the dangerous weapon inference instruction

in State v. Green:

       By instructing the jury that it may infer malice from the use of a
       dangerous weapon, courts present the jury with a straightforward
       example of how the State might prove the defendant’s culpable state
       of mind. The inference, which the jury is permitted but never required
       to make, . . . exists because a rational juror could infer that one who
       uses a dangerous weapon intends to cause physical harm, and even
       to kill. If unjustified and unexcused, causing physical harm or death
       is a wrongful act, and therefore the intent to do these things is a state
       of mind that would constitute malice aforethought. Thus, the jury
                                         16


       may infer the defendant acted with malice aforethought by using a
       dangerous weapon, the natural consequence of which is physical
       harm or death.

896 N.W.2d 770, 780–81 (Iowa 2017). Trial courts have delivered that instruction

with the supreme court’s approval in cases where the defendants have fired a gun

aimed at the victim, hit the victim in the head with a blunt object, stabbed a victim

in the chest with a penknife, beaten a small child with hands and fists, and run over

a victim with a car. See id. at 780 (collecting cases).

       Green also discussed when it would be inappropriate to infer malice: if the

defendant argues the weapon was not deadly or dangerous because death or

bodily harm is not a foreseeable consequence of its use. Id. Or perhaps the

weapon is deadly but the defendant asserts the use was not intentional, as in the

accidental discharge of a firearm. Id. at 780–81. Or perhaps the inference of

malice is inappropriate because the defendant used the dangerous weapon with

justification or excuse. Id. at 781. None of these situations applies here. Walden

focuses on the State’s failure to offer evidence of a murder weapon or testimony

that he used some undiscovered instrument.

       We disagree with Walden’s characterization of the record. Viewed in the

light favorable to the State, the evidence allows us to infer the existence of a

weapon wielded against Keenan. First, the medical examiner opined her injuries

resulted from considerable force applied by some instrument.          He described

abraded lacerations as a crushing of the skin and underlying tissues and how “the

instrument used” to inflict such injuries affects the wound. He described the

hardness of the skull and maxilla bones and opined fractures to those bones

required considerable force. He also described her compound injuries where the
                                          17


assailant inflicted “multiple blows” in the same area. In explaining “blunt force”

injuries versus “sharp force” injuries caused by a knife, the doctor explained

breaking the skin would require “considerable force,” implying an instrument

different from a knife, but an instrument nonetheless. On top of this, the jurors

were able to view photographs of Keenan’s injuries and apply their common sense

about their source. See City of Cedar Rapids v. Bd. of Trs. of Mun. Fire & Police

Ret. Sys., 572 N.W.2d 919, 926 (Iowa 1998) (“We do not ask juries to leave their

experiences and common sense behind when deliberating.”).

       Walden argues the inference instruction was improper because it conflated

the “level of injury” with the cause of death. That causation argument failed at trial.

The district court considered whether Keenan could have incurred her injuries by

striking her head and back against an object during a fall. The court rejected that

possibility based on the nature of the injuries, their number, and severity. It defies

common sense to infer these injuries were inflicted by a fall or any scenario other

than multiple blunt force blows by a heavy instrument. The doctor’s testimony

presupposes the attacker used a blunt instrument to inflict those extensive injuries.

       On top of Dr. Garrity’s testimony on direct examination, on cross-

examination the defense elicited further information about what “object” the

attacker used. Dr. Garrity agreed it “would have been something of substance or

thickness.” We understand these questions sought to highlight the absence of a

murder weapon. But the jury was free to infer the attacker used some object,

though it was not recovered.

       But did the unrecovered object constitute a dangerous weapon?

Dangerous weapons are not limited to instruments designed or primarily used for
                                         18


inflicting death or injury. As defined by the legislature, a “dangerous weapon” can

be “any instrument or device” which has been used in such a way as to indicate

the user intended it to cause death or serious injury and is capable of doing so.

Iowa Code § 702.7. Here, the jury could conclude from the medical evidence that

whatever instrument Walden wielded, he did so with the intent to cause serious

injury or death. And the instrument did cause Keenan’s death, because the force

from its contact fractured her skull, which led to fatal brain hemorrhage and blood

loss. Thus, the court properly instructed the jury.

   C. Sufficiency of the Evidence

       Walden next challenges the sufficiency of the evidence supporting malice

aforethought, premeditation, and specific intent, or that he used a dangerous

weapon to justify an inference of those mental states. We review his challenge for

correction of errors at law. See State v. Tipton, 897 N.W.2d 653, 692 (Iowa 2017).

We will uphold a guilty verdict if it is supported by substantial evidence.        Id.

Substantial evidence exists when a rational trier of fact would be convinced the

defendant is guilty beyond a reasonable doubt. Id. We view all relevant evidence

in the light most favorable to the State. Id. Evidence is not substantial if it raises

only suspicion, speculation, or conjecture. State v. Howse, 875 N.W.2d 684, 688

(Iowa 2016).    We make all legitimate inferences and presumptions that may

reasonably be inferred from the evidence. State v. Quinn, 691 N.W.2d 403, 407

(Iowa 2005).

       The district court did not err in denying Walden’s motion for judgment of

acquittal. The inference instruction provided the jury may infer malice from the use

of a dangerous weapon, but it was not required to do so. Here, the many grave
                                        19

injuries to Keenan’s head supported the jury’s finding of malice. See State v.

Rhode, 503 N.W.2d 27, 39 (Iowa Ct. App. 1993) (allowing inference of malice from

defendant intentionally slamming victim’s head against hard surface causing

severe injury).

       In addition, Walden told Snyder that he “had to knock her out because she

was in his pockets.” Malice may be inferred from prior contentious dealings with

the victim. See id. Plus, the nature and extent of the injuries show Walden had

the opportunity to deliberate. Substantial evidence supports Walden acted willfully,

deliberately, premeditatedly, and with a specific intent to kill Keenan even without

the dangerous weapon inference. Taking the evidence in the light most favorable

to the State and making reasonable inferences, we conclude the court did not err

in denying the motion for judgment of acquittal.

   D. Weight of the Evidence

       In his motion for new trial, Walden renewed his objection to the dangerous

weapon jury instruction. On appeal, he contends the district court erred in denying

his motion because the verdict was contrary to the weight of evidence.

       Under Iowa Rule of Criminal Procedure 2.24(2)(b)(6), Walden may seek a

new trial if the verdict is “contrary to law or evidence.” The rule means “contrary

to the weight of the evidence.” State v. Ellis, 578 N.W.2d 655, 659 (Iowa 1998).

Where the evidence “preponderates heavily” against the verdict, the district court

should grant a new trial based on the weight of the evidence to avoid a miscarriage

of justice. Id. at 658–59. The weight-of-the-evidence standard requires the district

court to independently “weigh the evidence and consider the credibility of

witnesses.” Id. at 658. But, on appellate review, we do not reweigh the evidence
                                           20


or judge the credibility of the witnesses in our consideration of the denial of a

motion for new trial. State v. Reeves, 670 N.W.2d 199, 202–23 (Iowa 2003). Our

review is limited to the exercise of discretion by the trial court. Id. To prevail, the

moving party “must show that the district court exercised its discretion on grounds

or for reasons clearly untenable or to an extent clearly unreasonable.” Id. at 202.

       As we explained above, the court properly instructed on the dangerous-

weapon inference, even though the State did not produce a murder weapon. Our

review is limited to the court’s exercise of its discretion. We find no abuse of that

discretion. These facts do not present the rare case for which a new trial is

necessary because the evidence preponderates heavily against the verdict.

    E. Ineffective Assistance of Counsel

       Finally, Walden raises a claim of ineffective assistance of counsel.7

“Ineffective-assistance-of-counsel claims are an exception to the traditional error-

preservation rules.” State v. Fountain, 786 N.W.2d 260, 263 (Iowa 2010). To

prevail, Walden must show by a preponderance of the evidence counsel breached

an essential duty and prejudice resulted. See Strickland v. Washington, 466 U.S.

668, 687 (1984). We often preserve ineffective-assistance claims for PCR actions.

State v. Clay, 824 N.W.2d 488, 494 (Iowa 2012). Preservation is preferred when

the challenged action by counsel may implicate trial tactics. Id. If the claim is




7
 The Iowa legislature amended Iowa Code sections 814.6 and 814.7, effective July 1,
2019, limiting direct appeals from guilty pleas and eliminating direct-appeal ineffective-
assistance-of-counsel claims. 2019 Iowa Acts ch. 140, §§ 28, 31 (codified at Iowa Code
§§ 814.6–.7). The amendments “apply only prospectively and do not apply to cases
pending on July 1, 2019,” so they do not apply in this case. State v. Macke, 933 N.W.2d
226, 235 (Iowa 2019).
                                          21


undeveloped, our court does not entertain it, but does not “outright reject it” either.

State v. Harris, 919 N.W.2d 753, 754 (Iowa 2018).

       Walden contends his trial counsel was ineffective in asking Dr. Garrity about

the murder weapon on cross-examination and eliciting what he regards as the

“sole evidence of use of a dangerous weapon.” Whether counsel made a tactical

choice to broach this topic and whether he was acting as competent counsel is

best left to a court with a fully developed record. We preserve Walden’s ineffective-

assistance-of-counsel claim for possible PCR proceedings.

       AFFIRMED.
