                    IN THE COURT OF APPEALS OF IOWA

                                     No. 15-1991
                                  Filed May 3, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JASON SHIMAR KEYS,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Cerro Gordo County, Rustin T.

Davenport, Judge.



      Defendant appeals his conviction of delivery of methamphetamine in

violation of Iowa Code section 124.401(1)(c)(6) (2014) following a jury trial and

the district court’s order substituting new State’s exhibits 1, 7, and 8. AFFIRMED

IN PART AND REMANDED WITH DIRECTIONS.



      Dylan J. Thomas of Dylan J. Thomas, Attorney at Law, Mason City, for

appellant.

      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant

Attorney General, for appellee.



      Considered by Potterfield, P.J., Doyle, J., and Mahan, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2017).
                                        2


POTTERFIELD, Presiding Judge.

       Jason Keys appeals his conviction of delivery of methamphetamine, in

violation of Iowa Code section 124.401(1)(c)(6) (2014), following a jury trial and

the district court’s order following the State’s motion for bill of exceptions

substituting State’s exhibits 1, 7, and 8. He argues the court erred in multiple

rulings and trial counsel was ineffective. He also argues the court erred in ruling

that the State’s substitute exhibits 1 and 8 were accurate copies of the originals.

We remand for the district court to apply the correct standard in its ruling on the

motion for new trial and preserve his ineffective-assistance-of-counsel claims for

postconviction relief.

I. Background Facts and Proceedings

       On December 4, 2014, a confidential informant, Jonathan Hjelle, notified

Frank Hodak, Sheriff’s Deputy and North Central Iowa Drug Task Force

investigator, that he could purchase one gram of methamphetamine from Jason

Keys later that day. Hodak then assembled other members of the task force to

conduct a controlled buy.

       In preparation for the buy, Hodak met Hjelle at a predetermined location,

searched him, fitted him with a digital recorder and live audio wire, and provided

him with one hundred and thirty dollars in pre-recorded buy money. Hjelle then

contacted Keys through text messages to confirm the transaction. Hjelle testified

that he walked to the house where Keys was located and met Keys in the back

bedroom. He stated that he sat down, handed Keys the money, and after Keys

commented on an older, crisp fifty-dollar bill, Keys handed the methamphetamine

to him. The members of the task force, including Hodak, surveilled the activities
                                          3


visually through a window and through the live audio wire.              During the

transaction, the audio recording revealed that Keys referenced an “old school”

fifty-dollar bill, which was part of the buy money.

       After the purchase, Keys and Hjelle went outside to meet two individuals

in a truck.    The individuals were interested in trading a stolen bike for

methamphetamine, but no transaction took place.           Hodak testified that he

recognized Keys’s distinctive voice on the live audio wire from prior encounters

and he could hear Keys explain to the individuals in the truck that he was

wearing a facemask because he had active warrants. Hodak also testified that

he visually recognized Keys when he exited the building even though Keys was

wearing a half ski mask that partially covered the bottom portion of his face.

       Following the purchase, Hjelle returned a small bag of a white, crystal

substance to Hodak. Hodak field-tested the substance, which tested positive for

methamphetamine. Laboratory testing later confirmed the substance was .81

grams of methamphetamine. An arrest warrant was issued for Keys, and in May

2015, he was arrested for delivery of methamphetamine. During a recorded

post-arrest interview, Hodak read Keys his Miranda rights, explained the charge

was related to a controlled buy on December 4, 2014, and indicated that Keys

had “options.” Hodak advised Keys that he was interested “in moving up the

chain” and buying from “other people.”         Hodak stated, “We know that you

middled the deal,” and Keys responded affirmatively. Hodak then stated, “We

want to move up the ladder” and would talk to the county attorney to “make the

charges go away” if Keys assisted with controlled buys.
                                         4


       On June 2, 2015, the State charged Keys with one count of delivery of

methamphetamine, in violation of Iowa Code section 124.401(1)(c)(6), and as an

habitual felony offender, as defined under section 902.8 and 902.9(1)(c). Keys

filed a motion to suppress evidence arguing, in part, the post-arrest interview

should be excluded from trial under Iowa Rule of Evidence 5.408, as the

interview included the officer discussing working with prosecutors to reduce the

charges. On August 7, 2015, a hearing was held on the issue. In its order, the

district court determined Hodak’s statement “You make some controlled buys for

us and make these charges go away” was a promise of leniency. The court

excluded portions of the post-arrest audio recording following Hodak’s statement

but allowed the preceding conversation between Hodak and Keys to be played

for the jury as State’s exhibit 8.

       At trial, Officer Hodak and informant Hjelle identified Keys as the individual

each saw during the controlled buy. Officer Hodak also identified Keys’s voice as

a voice on the tape of the controlled buy. Keys testified he was not the individual

who sold methamphetamine to Hjelle. He stated he never collected one hundred

and thirty dollars from Hjelle nor did he hand anyone a bag of methamphetamine.

He also stated, “I have never been a middle man, acted as a middle man, or

admitted to being a middle man. And it clearly shows that on the [post-arrest

interview] tape.”    Keys admitted on cross-examination that he had active

warrants between late September and December 2014.

       During closing arguments, the State argued Keys admitted to being a

middle man in the post-arrest interview. The State also said:
                                        5


      And the fact is it’s common sense, common sense. Does it look—
      Does he sound like a drug dealer, does he look like a drug dealer,
      does the case look like—excuse me. Does the case look like a
      drug dealer case; and does it look like the evidence shows that he,
      in fact, delivered Methamphetamine?

When discussing the role of the confidential informant and the informant’s

relationship with the police, the state explained, “This is dangerous work, folks.

You're dealing with drug dealers. You’re dealing with people that are not, in

essence, the most innocent people, I guess, is a way to put it. These people can

be dangerous.”

      The jury returned a verdict finding Keys guilty as charged.

      Following the district court’s denial of Keys’s motion for new trial, Keys

appealed. For reasons not disclosed in the record, State’s exhibit 1, a longer

recording containing witness interviews and the full post-arrest interview of Keys,

which was not admitted into evidence; State’s exhibit 7, the recording of the drug

buy; and exhibit 8, the redacted audio recording of the post-arrest interview after

the partial grant of Keys’s motion to suppress evidence, did not arrive to the Iowa

Supreme Court as part of the record. The originals could not be found. The

district court ordered the State to prepare duplicate copies and set a hearing on

the matter. On June 28, 2016, a hearing was held on the issue whether the

substitute exhibits were appropriate to submit to the supreme court as the

corrected record. Keys’s trial counsel stated he believed the substitutes were

accurate copies of the originals. Keys claimed the substitute copies omitted a

statement by the police, “That’s why we’re willing to work with you,” in response

to Keys’s statement, “I don’t do drugs.” In its order, the court concluded the

substitute copies were accurate representations of the State’s exhibits and
                                         6


directed the clerk to forward substitute exhibits 1, 7, and 8 to the supreme court.

Keys appealed the June 28, 2016 district court order. On September 6, 2016,

the supreme court consolidated both appeals. The case was then transferred to

this court.

II. Standards of Review.

       Evidentiary rulings are generally reviewed for abuse of discretion. State v.

Buenaventura, 660 N.W.2d 38, 50 (Iowa 2003). Rulings that apply the promise-

of-leniency doctrine are reviewed for errors at law.       See State v. Polk, 812

N.W.2d 670, 674 (Iowa 2012).

       Claims of ineffective assistance of counsel are reviewed de novo. See,

e.g., State v. Liddell, 672 N.W.2d 805, 809 (Iowa 2003).

       “Sufficiency of evidence claims are reviewed for a correction of errors at

law.” State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012).

       “[W]e review a claim that the district court failed to apply the proper

standard in ruling on a motion for new trial for errors at law.” State v. Ary, 877

N.W.2d 686, 706 (Iowa 2016).

III. Discussion

       A. Evidentiary Issues.

       1. Promises of Leniency.         Keys argues the district court erred in

admitting those portions of his post-arrest interview which preceded the officer’s

explicit offer of leniency. Specifically, he argues the district court evaluated the

conversation between Keys and Hodak under the promise-of-leniency standard
                                           7


instead of Iowa Rule of Evidence 5.408.1              Under rule 5.408, the entire

conversation was inadmissible if it was part of a compromise or negotiation. To

the extent the court was correct in applying the promise-of-leniency standard,

Keys argues the officer’s “promise of leniency” began when the parties discussed

“options” and law enforcement’s desire to “move up the chain.”

       First, we agree with the district court’s analysis of the audio tape under the

promise-of-leniency doctrine.     Under the promise-of-leniency rule, statements

made by the defendant are inadmissible “where the prisoner has been influenced

by any threat or promise.” State v. Howard, 825 N.W.2d 32, 40 (Iowa 2012). On

the other hand, rule 5.408 “is ordinarily not applicable in a criminal case, except

in a plea-bargain situation.” State v. Burt, 249 N.W.2d 651, 652 (Iowa 1977)

(emphasis added). During the post-arrest interview, Keys was interviewed by an

officer and not engaged in plea-bargaining with the district attorney. Accordingly,

rule 5.408 is inapplicable to the post-arrest interview.

       Second, the district court did not err in admitting the earlier portions of the

post-arrest interview. The standard to determine whether a promise of leniency

was made is “whether the language used amounts to an inducement which is

1
  The applicable rule states:
               a. Prohibited uses. Evidence of the following is not admissible—on
       behalf of any party—to prove the validity or amount of a disputed claim:
               (1) Furnishing, promising, or offering—or accepting, promising to
       accept, or offering to accept—a valuable consideration in compromising
       or attempting to compromise the claim that was disputed on either validity
       or amount.
               (2) Conduct or a statement made during compromise negotiations
       about the claim.
               b. Exceptions. The court may admit this evidence for another
       purpose, such as proving a witness’s bias or prejudice, negating a
       contention of undue delay, or proving an effort to obstruct a criminal
       investigation or prosecution.
Iowa R. Evid. 5.408.
                                         8

likely to cause the subject to make a false confession.” Howard, 825 N.W.2d at

40. Generally, the language must reference how the suspect would be helped in

order for the court to find the defendant was promised leniency. See State v.

McCoy, 692 N.W.2d 6, 28 (Iowa 2005) (“The line is crossed if the officer also tells

the suspect what advantage is to be gained or is likely from making a

confession.” (citations omitted)); State v. Bunker, No. 13-0600, 2014 WL 957432,

at *2 (Iowa Ct. App. Mar. 12, 2014) (“[T]he detective did not cross the line

because she omitted any reference to how Bunker would be helped.”); State v.

Foy, No. 10-1549, 2011 WL 2695308, at *3–4 (Iowa Ct. App. July 13, 2011)

(declining to find promissory leniency where “the investigators did not explain

how they were going to ‘help’ Foy, or what ‘benefit,’ they could provide him”).

      Keys was not offered a specific benefit when the officer suggested “we

want to move up the chain.” Hodak advised Keys to think about it and stated he

did not want an answer that day about the possibility of assisting with controlled

buys. In fact, Keys was not offered any benefit until Hodak stated, “You make

some controlled buys for us and make the charges go away.” In its ruling, the

court explained:

               Following his arrest, Keys spoke to law enforcement officers.
      Initially no promises of leniency were made. Officer Hodak
      informed Jason Keys what he was being charged with, Keys
      protested and said, “You guys know I don’t sell dope.” Hodak then
      explained, “You have some options. Obviously we want to move
      up the chain. You could buy some dope from some people.”
      Hodak explained that they wanted to move up the ladder, but he
      didn’t want an answer today. Hodak wanted Keys to think about it.
               At approximately 58 minutes, 55 seconds on the recording,
      Hodak told Keys that Hodak would contact the county attorney.
      Hodak then said, “You make some controlled buys for us and make
      these charges go away.”
                                        9


              Thereafter, Keys continued his conversation with the officers
      regarding how they would proceed, and Keys indicated his
      willingness to work with the police regarding what they had
      proposed.
              The Court finds that when Mr. Hodak made the statement
      that, “You make some controlled buys for us and make these
      charges go away” at 58 minutes, 55 seconds in the recording, this
      was a promise of leniency.

The court suppressed any statements made by Keys after Hodak made the

statement, “You make some controlled buys for us and make these charges go

away.” We agree with the district court’s analysis that the portions of the audio

recording before the statement were admissible.       Statements discussing the

potential of Keys conducting a controlled buy did not rise to a promise of leniency

until Keys was informed of the advantage to be gained—making the charges “go

away.” See McCoy, 692 N.W.2d at 28. The district court did not err in applying

the promise of leniency standard.

      2. Testimony Related to Fingerprinting. Keys next argues the court

abused its discretion in overruling trial counsel’s objection to lack of foundation

for testimony of Cameron Manson, a Cerro Gordo County Deputy Sheriff,

regarding the ability to fingerprint cellophane bags. He claims the witness was

required to establish that he had expertise in fingerprinting and attempting to

fingerprint cellophane bags. “A witness may testify to a matter only if evidence is

introduced sufficient to support a finding that the witness has personal knowledge

of the matter.   Evidence to prove personal knowledge may consist of the

witness’s own testimony.” Iowa R. Evid. 5.602. Here, Manson was asked if he

“ever had success fingerprinting cellophane bags,” to which he responded, “I

don’t remember having any success. I don’t have any recollection of having
                                         10


success with getting fingerprints off of baggies.” Manson was testifying about his

personal knowledge of fingerprinting cellophane bags and not giving an expert

opinion. The trial court did not abuse its discretion in overruling Keys’s objection.

       3. Hodak’s Controlled Buy Experience and Audio Interpretation.

Keys next argues the court abused its discretion in overruling trial counsel’s

objection to Hodak’s experience conducting controlled buys. At trial, the State

asked Hodak, “[H]ow many controlled buys have you personally been the lead

investigator for?” Keys’s trial counsel objected based on relevance. The court

overruled the objection, and Hodak responded, “Hundreds. I don’t have an exact

number, but in the hundreds range.”

       Under Iowa Rule of Evidence 5.602, “A witness may testify to a matter

only if evidence is introduced sufficient to support a finding that the witness has

personal knowledge of the matter. Evidence to prove personal knowledge may

consist of the witness’s own testimony.” During his testimony, Hodak testified

about the general procedure of controlled buys. Hodak’s testimony about his

controlled buy experience was relevant to his testimony about procedure. See

Iowa R. Evid. 5.602. The trial court did not abuse its discretion in overruling

Keys’s objection.

       Keys also claims the court abused its discretion in overruling an objection

to Hodak’s interpretation of the live audio wire and his visual identification of

Keys in the courtroom based on his identification testimony during the playing of

exhibit 7. At trial, the State played the audio recording of the live wire (exhibit 7)

while Hodak testified what he heard on the recording and what he observed

during the controlled buy. For example, the State asked, “And at the 4:50 mark,
                                          11


maybe a few seconds before that, did you hear Mr. Keys go into—or what did

you hear?” Hodak responded, “I heard him walk into a door and a door shut.”

After the State played a portion of the audio recording and asked Hodak, “What

do you believe he said,” trial counsel objected stating, “[T]his procedure . . . is

actually not allowing the jury to hear [the contents of the recording] on their own;

but Mr. Hodak is trying to infer what he believes is said, as opposed to allowing

the jury just to hear what is said; and I believe that is improper.”

       Under Iowa Rule of Evidence 5.701, a lay witness may testify in the form

of an opinion if it is “rationally based on the witness’s perception.”         Hodak

testified that during the controlled buy, he was listening in on the live wire.

“[W]here there is proper factual foundation for a lay witness to testify, it is within

the discretion of a trial court to allow a witness to express an opinion based on

such established foundation facts.”      State v. McCarty, 179 N.W.2d 548, 551

(Iowa 1970); see also Iowa R. Evid. 5.701. Accordingly, the trial court did not

abuse its discretion in ruling on the objections to interpretation of the voices and

the visual identification. Keys raises claims of ineffective assistance of counsel

to complain counsel failed to object to Hodak’s voice identification testimony and

to Hodak’s testimony about Keys’s outstanding warrants as part of the

interpretation of Exhibit 7.

       B. Ineffective Assistance of Counsel.

       Keys argues trial counsel was ineffective for failing to (1) object to

evidence of his prior bad acts, (2) impeach State witness Hjelle regarding prior
                                            12


bad acts, (3) object to the text-message evidence, (4) object to voice

identification evidence, and (5) object to prosecutorial misconduct.2

       To prove his claims of ineffective assistance of counsel, Keys must prove

by a preponderance of the evidence that (1) counsel failed to perform an

essential duty and (2) he suffered prejudice as a result. See State v. Morgan,

877 N.W.2d 133, 136 (Iowa Ct. App. 2016). The claim fails if either prong is not

proved. Id. When a defendant chooses to raise an ineffective-assistance-of-

counsel claim on direct appeal, we may either determine the record is adequate

and decide the claim or find the record is inadequate and preserve the claim for

postconviction proceedings. See State v. Neitzel, 801 N.W.2d 612, 624 (Iowa Ct.

App. 2011).

       To prove the first prong of this claim, Keys must show counsel’s

performance fell outside the normal range of competency. See State v. Straw,

709 N.W.2d 128, 133 (Iowa 2006).             Starting “with the presumption that the

attorney performed his duties in a competent manner,” “we measure counsel’s

performance against the standard of a reasonably competent practitioner.” State


2
  In a recent case, the Iowa Supreme Court cautioned against conflating the terms
prosecutorial misconduct, which generally describes “those statements ‘where a
prosecutor intentionally violates a clear and unambiguous obligation or standard
imposed by law, applicable rule or professional conduct’ as well as ‘those situations
where a prosecutor recklessly disregards a duty to comply with an obligation or
standard,’” and prosecutorial error, which includes situations “‘[w]here the prosecutor
exercises poor judgment’ and ‘where the attorney has made a mistake’ based on
‘excusable human error, despite the attorney’s use of reasonable care.’” State v.
Schlitter, 881 N.W.2d 380, 394 (Iowa 2016) (citations omitted).
        We use the term prosecutorial misconduct throughout, as both Keys and the
State did in their appellate briefs. We note that we are to apply the multi-factor test
outlined in State v. Graves, 668 N.W.2d 860, 877–78 (Iowa 2003), either way. See
Schlitter, N.W.2d at 394 (stating the multifactor test set out to evaluate the statements in
determining if there was misconduct and if that was misconduct was prejudicial “easily
translate to an evaluation of prosecutorial error”).
                                        13

v. Maxwell, 743 N.W.2d 185, 195 195–96 (Iowa 2008). Although counsel is not

required to predict changes in the law, counsel must “exercise reasonable

diligence in deciding whether an issue is ‘worth raising.’” State v. Westeen, 591

N.W.2d 203, 210 (Iowa 1999) (quoting State v. Schoelerman, 315 N.W.2d 67, 72

(Iowa 1982)). In accord with these principles, we have held that counsel has no

duty to raise an issue that has no merit. State v. Schaer, 757 N.W.2d 630, 637

(Iowa 2008); State v. Bearse, 748 N.W.2d 211, 215 (Iowa 2008) (“Counsel

cannot fail to perform an essential duty by merely failing to make a meritless

objection.”). Under the second prong, “prejudice is shown when it is ‘reasonably

probable that the result of the proceeding would have been different.’” Schaer,

757 N.W.2d at 638 (quoting State v. Henderson, 537 N.W.2d 763, 765 (Iowa

1995)). “If an ineffective-assistance-of-counsel claim is raised on direct appeal

from the criminal proceedings, we may decide the record is adequate to decide

the claim or may choose to preserve the claim for postconviction proceedings.”

Straw, 709 N.W.2d at 133.      When analyzing the prejudicial effect of several

allegations of ineffective assistance of counsel, we “look to the cumulative effect

of counsel’s errors to determine whether the defendant satisfied the prejudice

prong of the Strickland test.” State v. Clay, 824 N.W.2d 488, 500 (Iowa 2012)

(emphasis added).

      Here, Keys raises several ineffective-assistance-of-counsel claims.
                                          14


       1. Prior Bad Acts.3 Keys first argues trial counsel should have objected

under Iowa Rule of Evidence 5.404(b)4 to an audio recording (exhibit 8) where

Keys admitted to “middling” a drug transaction. He also argues trial counsel

should have objected under the same rule to testimony suggesting Keys had

active warrants for his arrest. Under rule 5.404(b), “Evidence of a crime, wrong,

or other act is not admissible to prove a person’s character in order to show that

on a particular occasion the person acted in accordance with the character.”

       During the beginning of the post-arrest conversation, before the promise

of leniency, the officer read Keys his Miranda rights, informed him they were

discussing his case, and confirmed the charge of delivery of methamphetamine

from December 4, 2014.          While discussing the charged offense and the

controlled buy, Keys stated, “If y’all got me y’all got me. But I’m pretty sure y’all

know, chances are, if that’s the case [he] used me as a middle man.” The officer

then referenced the specific controlled buy, which led to the charged crime, “I’ll

be honest with you, we know that you middled the deal.”              Keys responded

affirmatively and explained, “[People] call me and I can get it for you, that’s it.”

       Keys also claims trial counsel should have objected to the testimony

regarding his active arrest warrants during the charged crime pursuant to rule

3
  Keys claims the court erred in allowing evidence related to his “middling” and arrest
warrants. However, no objection was made at the trial level. Accordingly, these issues
are presented in the context of ineffective assistance of counsel.
4
  The rule provides:
                b. Crimes, wrongs, or other acts.
                (1) Prohibited use. Evidence of a crime, wrong, or other act is not
        admissible to prove a person's character in order to show that on a
        particular occasion the person acted in in accordance with the character.
                (2) Permitted uses. This evidence may be admissible for another
        purpose such as proving motive, opportunity, intent, preparation, plan,
        knowledge, identity, absence of mistake, or lack of accident.
Iowa R. Evid. 5.404(b).
                                            15


5.404(b).    At trial, Officer Hodak testified about his observations during the

surveillance of the controlled buy, including his interpretation of an audio

recording (exhibit 7) documenting the controlled buy. Without objection, Officer

Hodak stated that, according to Mr. Keys’s statements on the audio recording,

“Mr. Keys had a face mask on, and they were referencing the face mask. And I

don’t know if they [the other individuals at the scene] were freaked out by it or

not, he just said he had it on because he had a warrant.” Officer Hodak then

confirmed that Keys had active warrants at the time of the buy. Another witness

was asked without objection whether Keys had warrants outstanding during the

months surrounding the controlled buy.

        2. Testifying Witness Hjelle. Keys next argues that trial counsel was

ineffective for failing to cross-examine State’s witness Jonathan Hjelle about his

alleged counterfeiting charge and his experience with controlled buys unrelated

to this case. Before trial, the State moved in limine to prevent Keys from cross-

examining informant Hjelle about a previous use of counterfeit money and the

informant’s previous experience with controlled buys. The court ruled Keys could

cross-examine Hjelle’s about his controlled buy from Keys but not about his

history of controlled buys unrelated to the current charges. 5 Trial counsel stated

he did not plan to examine Hjelle about the act of passing counterfeit funds.


5
  In his brief, Keys also argues the court erred in granting the State’s motion in limine
regarding Hjelle’s history of working as a confidential informant, prior leniencies, and
prior compensation. Because trial counsel did not timely object at trial, error is not
preserved regarding the court’s ruling. See State v. Tangie, 616 N.W.2d 564, 568 (Iowa
2000) (“Ordinarily, error claimed in a court's ruling on a motion in limine is waived unless
a timely objection is made when the evidence is offered at trial.”). We note Keys’s failure
to preserve error does not prevent him from raising the issue under an ineffective-
assistance-of-counsel claim in a postconviction proceeding. See State v. Johnson, 784
N.W.2d 192, 198 (Iowa 2010).
                                         16


       At trial, Hjelle was impeached with prior inconsistent statements made

under oath, testimony about a prior felony conviction, and testimony about

ulterior motives to implicate the defendant in order to fulfill an agreement with the

State by which he had a driving while barred charge dismissed. Because there

was no conviction involved with the counterfeiting charge, counsel was left with

rule 5.608, which “permits cross-examination of a witness concerning a specific

instance of conduct by the witness; it does not permit such conduct to be proved

by extrinsic evidence.” State v. Greene, 592 N.W.2d 24, 28 (Iowa 1999). It is

unclear from the record why trial counsel made a decision to omit Hjelle’s

counterfeiting charge during cross-examination.

       3. Text Messages. Keys also argues trial counsel was ineffective for

failing to object to text messages for lack of foundation. He claims without the

proper foundation, the text messages do not provide any connection between

Keys and Hjelle. To the extent the text message were admissible, Keys claims

they are hearsay.

        Keys claims he was prejudiced “because the jury was encouraged by the

State to consider the text messages as establishing the alleged drug transaction

as being between [Keys] and Hjelle.” The text messages show a conversation

between Hjelle and Keys about how far away Hjelle was from Keys’s location. In

addition to the text messages, Hjelle testified in detail about the controlled buy.

For example, he said, “I was over at [Keys’s] house earlier [the day of the buy],

found out that somebody was coming to town, and I was going to come back

later and buy some meth.” Hjelle also testified that he arranged the purchase

price and amount before contacting Hodak about the controlled buy.               He
                                        17


described the transaction, “I sat down, hand[ed] Jason the money, he looked at

the money . . . and they hand[ed] me the bag.” Hjelle was then asked “[W]ho

handed you the drugs.” To which he replied, “Jason [Keys].” Multiple officers

also testified that Keys was the individual involved in the controlled buy. It is

unclear from the record whether trial counsel made a strategic decision to not

challenge the foundation of the text messages based on the additional evidence.

       4. Voice Identification. Keys next argues trial counsel was ineffective for

failing to object to Hodak’s identification of Keys’s voice for lack of foundation.

He claims because identification was an issue at trial, he suffered prejudice

because the jury may have accepted the witness’s “identification without giving

fair consideration to any evidence the defense presented questioning the identity

of the voice on the recording.” At trial, the State asked Hodak, “And when you

saw him while also listening to the live wire, did you determine that it was Mr.

Keys prior to talking with anybody else; or was that later?” Hodak stated, “No. It

was during the live wire. He’s got a distinctive voice also.” Keys did not object to

the question.

       On the issue of identity, the jury was able to evaluate the defendant’s

voice on its own by comparing the live wire recording, the police interview

recording, and Keys’s testimony.      Witnesses also visually identified Keys in

person, including Deputy Hodak’s testimony that he saw the defendant during the

controlled buy, and Hjelle’s testimony about Keys during the controlled buy. It is

unclear from the record whether the other forms of evidence supporting voice

identification factored into trial counsel’s decision not to object to Hodak’s

testimony linking the voice on the audiotape to Keys.
                                         18


       5. Prosecutorial Misconduct.           Keys next claims trial counsel was

ineffective for failing to object to prosecutorial misconduct. Specifically, Keys

argues the following prosecutor’s statements were inappropriate: “You’re dealing

with drug dealers. You’re dealing with people that are not, in essence, the most

innocent people, I guess, is a way to put it. These people can be dangerous[,]”

and “Does it look—Does he sound like a drug dealer, does he look like a drug

dealer, does the case look like—Excuse me. Does the case look like a drug

dealer case; and does it look like the evidence shows that he, in fact, delivered

methamphetamine?”6 To succeed on an ineffective-assistance-of-counsel claim

based on prosecutorial misconduct, a defendant must establish: (1) proof of

misconduct; and (2) “the misconduct resulted in prejudice to such an extent that

the defendant was denied a fair trial.”         Graves, 668 N.W.2d at 869.    “A

defendant’s inability to prove either element is fatal.” See id.

       The prosecutor’s statements must also be prejudicial to the extent that

“but for counsel’s unprofessional errors, the result of the proceeding would have

been different.” State v. Carey, 709 N.W.2d 547, 559 (Iowa 2006). We consider

the following factors: (1) the severity and pervasiveness of the misconduct; (2)

the significance of the misconduct to the central issues in the case; (3) the

strength of the State’s evidence; (4) the use of cautionary instructions or other

curative measures; and (5) the extent to which the defense invited the

misconduct.”    Graves, 668 N.W.2d at 877.         “To determine if the prejudice

standard has been met, we look to the totality of the evidence, the factual


6
  Keys also argues statements regarding his role as a middle man amounted to
misconduct because they misconstrued the discussion in the post-arrest interview.
                                           19


findings that would have been affected by counsel’s errors, and whether the

effect was pervasive, minimal, or isolated.” Nguyen v. State, 707 N.W.2d 317,

324 (Iowa 2005).       “The most significant factor is the strength of the State’s

evidence.” State v. Krogmann, 804 N.W.2d 518, 526 (Iowa 2011). It is unclear

from the record why trial counsel did not challenge the prosecutor’s statements

during closing arguments.

          The record does not indicate trial counsel’s thinking on Keys’s ineffective

assistance claims, and we are unable to evaluate the cumulative prejudicial

effect.     Accordingly, we cannot resolve the ineffective-assistance-of-counsel

claims on direct appeal.      See Clay, 824 N.W.2d at 494 (holding ineffective-

assistance claims are ordinarily preserved for postconviction relief proceedings

especially “where the challenged action of counsel implicate trial tactics or

strategy which might be explained in a record fully developed to address those

issues”). Because Keys raises multiple issues that require further development

of the record, we preserve all of the above claims for postconviction relief. See

id. at 501.

          C. Sufficiency of the Evidence.7

          Keys next claims the court erred in denying his motion for judgment of

acquittal. He argues there was insufficient evidence for a reasonable jury to find

him guilty. Specifically, he claims the State failed to prove identity.




7
  Keys also claims the district court erred in denying his motion in arrest for judgment.
Keys’s motion for arrest in judgment, however, challenged the sufficiency of the
evidence at the trial level. “A motion in arrest of judgment may not be used to challenge
the sufficiency of the evidence.” See State v. Dallen, 452 N.W.2d 398, 399 (Iowa 1990).
The district court did not err in denying the defendant’s motion in arrest of judgment.
                                         20


       “In making determinations on the sufficiency of the evidence, ‘we . . . view

the evidence in the light most favorable to the state, regardless of whether it is

contradicted, and every reasonable inference that may be deduced therefrom

must be considered to supplement that evidence.’” State v. Harris, 891 N.W.2d

182, 186 (Iowa 2017) (quoting State v. Jones, 281 N.W.2d 13, 18 (Iowa 1979)).

“We will uphold a trial court’s denial of a motion for judgment of acquittal if the

record contains substantial evidence supporting the defendant’s conviction.” Id.

(citation omitted). “Evidence is substantial if it would convince a rational trier of

fact the defendant is guilty beyond a reasonable doubt.” Id. (citation omitted).

Generally, direct eyewitness testimony establishing the elements of the crime are

sufficient to generate a jury question. See State v. Kutcher, No. 14–0602, 2015

WL 4935583, at *2 (Iowa Ct. App. Aug. 19, 2015) (holding officer’s testimony that

he saw defendant commit crime is sufficient to uphold verdict). Even in light of

credibility challenges to a testifying witness, “[t]he jury is free to believe or

disbelieve any testimony as it chooses.” State v. Thornton, 498 N.W.2d 670, 673

(Iowa 1993).

       Keys was tried for the charge of delivery of methamphetamine. See Iowa

Code § 124.401(1)(c)(6). The relevant code section provides it is unlawful to

deliver “[f]ive grams or less of methamphetamine.” Id.

       Here, the State presented direct eyewitness evidence of the defendant’s

identity. While Keys denied he was the one who sold methamphetamine, direct

testimony from a confidential informant is sufficient to establish the elements of

the crime.     See State v. Arne, 579 N.W.2d 326, 328 (Iowa 1998) (holding

evidence was sufficient to support delivery-of-a-controlled-substance charge
                                          21


when confidential informant’s testimony of drug transaction was contradicted by

another testifying witness).    The jury heard testimony from Hjelle specifically

identifying Keys as the individual who sold him one gram of methamphetamine in

exchange for one hundred and thirty dollars in marked buy money. The jury also

heard testimony from the officers monitoring the controlled buy, and from Keys

himself. The jury was able to hear in the voice from the live wire and compare it

to Keys’s voice from the police interview and his testimony. It is up to the jury to

decide if they believe it is Keys’s voice on the live wire. The evidence was

sufficient on the issue of identity to support the conviction.

       D. Motion-for-New-Trial Standard.

       Keys claims the district court erroneously applied the sufficiency-of-the-

evidence standard as opposed to the weight-of-the-evidence standard in denying

his motion for new trial.      The State concedes the court applied the wrong

standard in its ruling.

       When ruling on a motion for new trial, a district court may grant the motion

if the verdict is contrary to the weight of the evidence. Ary, 877 N.W.2d at 706;

see Iowa R. Crim. P. 2.24. “A verdict is contrary to the weight of the evidence

only when ‘a greater amount of credible evidence supports one side of an issue

or cause than the other.’” Ary, 877 N.W.2d at 706 (quoting State v. Shanahan,

712 N.W.2d 121, 135 (Iowa 2006)).

       Here, after reviewing arguments from both parties, the district court stated:

       The motion for new trial challenges whether there was sufficient
       evidence to support the conviction. The Court has sat through the
       trial in this matter, finds that there was. And viewing the light—the
       evidence most favorably to the State, finds that there was sufficient
       evidence in this matter to find the Defendant guilty, or that, in other
                                        22


      words, the—a reasonable jury could find guilt on the evidence
      beyond a reasonable doubt.

(Emphasis added.) We agree with the parties that the district court erroneously

applied the sufficiency-of-the-evidence standard. Additionally, “[a]ppellate review

of a district court ruling on a motion for new trial asserting the verdict was

contrary to the weight of the evidence ordinarily does not extend to ‘the

underlying question of whether the verdict is against the weight of the evidence.’”

Ary, 877 N.W.2d at 707 (quoting State v. Taylor, 689 N.W.2d 116, 134 (Iowa

2004)). We remand the case to the district court to apply the correct standard in

considering the motion.

      E. Substitute Exhibits.

      On appeal, State’s exhibits 1, 7, 8—audio recordings of the post-arrest

interview and buy—were lost when the record was submitted to the supreme

court. The district court instructed the State to prepare duplicate copies. After

the parties reviewed the copies, the district court held a hearing on whether the

substitute copies were accurate. Keys’s trial attorney represented at the hearing

the substitute exhibits were correct copies of the original exhibits.       Keys’s

appellate attorney, however, argued that after Keys stated, “I don’t sell dope,”

Hodak’s alleged response, “That’s why we’re willing to work with you,” was

omitted from the substitute copies. The district court reviewed the recordings

and held the proposed substitutes are accurate copies. Keys does not complain

about exhibit 1 which was not admitted nor exhibit 7, which documented the

controlled buy. He does argue that exhibit 8, the redacted exhibit of his post-

arrest interview, is inaccurate—an argument that dovetails with his argument
                                           23


none of his post-trial interview should have been admitted because it all contains

promissory lenience. Keys asks this panel to supplement the record on its own

to include the alleged statement from Hodak.

       After a careful review of the record, we agree with the district court and

trial counsel Hodak did not respond to Keys’s denial he did not sell drugs by

saying, “That’s why we are willing to work with you.” Assuming the statement

was made by Hodak and omitted from the substituted exhibit 8, we are not

convinced the statement qualifies as a promise of leniency. We affirm the district

court on this issue.

        IV. Conclusion.

       The trial court did not err in admitting the early portions of the audio

recording of the post-arrest interview. The promise of leniency was triggered

only when Hodak offered a benefit to Keys. Nor did the trial court abuse its

discretion in overruling Keys’s objections to Manson’s testimony about his

experience with fingerprints on cellophane bags, Hodak’s controlled-buy

experience, or Hodak’s testimony interpreting exhibit 7.         Testimony from the

confidential informant, officers involved in the controlled buy, and evidence of the

audio recordings were sufficient to support Keys’s conviction. However, the court

applied the wrong standard when ruling on Keys’s motion for new trial. Keys’s

claims of ineffective assistance of counsel are preserved for postconviction relief,

as the record is inadequate to resolve the issues on direct appeal and we are

unable to evaluate the cumulative prejudicial effect on Keys. Finally, we affirm

the district court’s ruling to substitute exhibits 1, 7 and 8.

       AFFIRMED IN PART AND REMANDED WITH DIRECTIONS.
