                    IN THE COURT OF APPEALS OF IOWA

                                  No. 16-0628
                            Filed November 8, 2017

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JAMES ERNST II,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, Andrea J.

Dryer, Judge.



      A defendant appeals his conviction and sentence for first-degree murder

in violation of Iowa Code section 707.2 (2015). AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Melinda J. Nye, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Linda J. Hines, Assistant Attorney

General, for appellee.



      Heard by Doyle, P.J., McDonald, J., and Goodhue, S.J.*

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

       James Ernst II appeals his conviction for murder in the first degree, in

violation of Iowa Code section 707.2 (2015), arising out of the shooting of

Orintheo Campbell, Jr. At trial, Ernst claimed he shot Campbell in self-defense.

The jury rejected Ernst’s defense and found him guilty as charged. Ernst raises

several challenges to his conviction and sentence in this direct appeal.

                                        I.

       The record reflects the following. On the evening of December 5, 2014,

Ernst rented a white Lincoln MKX in Cedar Rapids and drove to Waterloo

accompanied by his friend Iviontae Jackson. Around 1:00 a.m., Jackson and

Ernst met up with friends Shaumara Taylor and Katie Werner. For a reason

never resolved at trial, the group stopped at a local convenience store. At the

convenience store, Taylor got in a physical fight with a woman, Angela Norris,

who had arrived at the convenience store in another car. Campbell was also at

the convenience store.    Campbell and his friends stopped to watch the fight

between Taylor and Norris. One of Campbell’s friends called other people about

the fight; before long, there was a group of over fifteen people surrounding the

combatants. Ernst testified he did not know anyone in this crowd except his

three friends. The fight was recorded by the store’s security camera.

       The fight between Taylor and Norris subsided after members of the crowd

intervened. However, after several minutes, the two began fighting again. The

second fight was not in the view of the security camera. What happened next is

the subject of dispute.
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         According to the State’s witnesses, one of the bystanders, the father of

Norris’s child, tried to pull Taylor away from Norris. There was a verbal argument

between some of the men watching the fight, Ernst fired his handgun, and

Campbell was shot and killed.      None of the State’s witnesses observed any

physical fighting between the men.

         According to Ernst, Ernst saw a man push Taylor in an attempt to break

up the fight. Ernst then grabbed Taylor to drag her away from the fight. As Ernst

dragged Taylor away from the fight, she continued to argue with the man who

had pushed her.      As Ernst approached his car, he heard a cocking sound,

turned, and saw two men with their hands at their waists. Ernst testified he held

up his hand and said, “Stop, this is just a girl fight. This ain’t got nothing to do

with me.” One of the men, later identified as Campbell, allegedly replied, “No,

fuck that. I’m Crip. I’m on that.” Campbell then punched Ernst in the jaw,

stepped back, and reached toward his belt.        Ernst had a permit to carry a

concealed weapon and had a gun on his person. Ernst pulled out his handgun

and fired five shots at Campbell at close range. Ernst claims he aimed low to

disable Campbell but recoil forced the gun higher. Ernst stopped firing when he

saw Campbell put his hand to his chest. Ernst and his three friends fled the

scene.

         After Ernst fled the scene, Campbell’s friends drove Campbell to a local

hospital. He was pronounced dead shortly after arrival at 1:51 a.m. Campbell

had been shot twice, once in the chest and once in the neck. Meanwhile, Ernst

returned to Taylor’s apartment for roughly thirty minutes before leaving town with

Jackson. Ernst went to Dubuque to visit a female friend. He then drove to
                                          4


Davenport to visit his sister. Finally, he returned to Cedar Rapids. The State

alleged Ernst attempted to evade police for some period of time after the

shooting. Ernst denied this. Regardless, the police were unable to locate Ernst

for several weeks.      Ultimately, Ernst was arrested January 1, 2015, for the

murder of Campbell.

                                          II.

       Ernst raises four challenges to his conviction and sentence. He contends:

1) the district court erred in not admitting PowerPoint slides regarding the training

Ernst received when he obtained his firearms permit, 2) the district court erred in

declining a proposed jury instruction regarding malice aforethought, 3) defense

counsel was ineffective in failing to object to instances of prosecutorial

misconduct, and 4) the district court erred in ordering restitution.

                                          A.

       In his first claim of error, Ernst raises an evidentiary issue. Ernst argues

the district court erred in excluding a PowerPoint presentation Ernst viewed when

he obtained his concealed carry permit. The presentation contained over 100

slides. Ernst contends the slides were relevant to show Ernst was trained to

carry his firearm with him rather than leave it lying around. The district court

sustained the objection to the presentation because the slide contained a large

amount of irrelevant and potentially confusing information, including statements

of Utah and Iowa law.

       This court reviews the district court’s evidentiary ruling for an abuse of

discretion. See Mercer v. Pittway Corp., 616 N.W.2d 602, 612 (Iowa 2000). We

will find an abuse of discretion when “the court exercised [its] discretion on
                                         5


grounds or for reasons clearly untenable or to an extent clearly unreasonable.”

Waits v. United Fire & Cas. Co., 572 N.W.2d 565, 569 (Iowa 1997) (alteration in

original) (quoting State v. Maghee, 573 N.W.2d 1, 5 (Iowa 1997)). “A ground or

reason is untenable when it is not supported by substantial evidence or when it is

based on an erroneous application of the law.” Id. Harmless error occurs in

cases where a substantial right of the challenging party is unaffected. Mercer,

616 N.W.2d at 612 (citing McClure v. Walgreen Co., 613 N.W.2d 225, 235 (Iowa

2000)); see Iowa R. Evid. 5.103(a).

       Relevance is the guiding consideration in the admission of evidence. See

Iowa R. Evid. 5.402. Relevant evidence is “evidence having any tendency to

make the existence of any fact . . . more probable or less probable than it would

be without the evidence.” Iowa R. Evid. 5.401. “The test to determine if evidence

is relevant is whether a reasonable [person] might believe the probability of the

truth of the consequential fact to be different if [such person] knew of the

proffered evidence.”     State v. Alberts, 722 N.W.2d 402, 410 (Iowa 2006)

(alteration in original) (citation omitted) (citing State v. Plaster, 424 N.W.2d 226,

229 (Iowa 1988)). Relevant evidence may still be excluded if its probative value

is substantially outweighed by the danger of unfair prejudice, confusion of the

issues, or misleading the jury. See Iowa R. Evid. 5.403.

       To the extent Ernst claims the district court abused its discretion in

excluding the entirety of the PowerPoint presentation, we disagree. The district

court reasoned:

       The jury gets instructions that tell them to consider the evidence in
       the case and the instructions. If I allow this in as evidence, they’re
       considering it along with my instructions because that’s what the
                                          6


       instructions tell them to do. We can’t have evidence that’s giving
       the jury laws that would be contrary to or potentially contrary to the
       laws of the State of Iowa that they’re going to be getting in the
       instructions.

The district court correctly decided the entirety of the PowerPoint presentation. It

contained too much irrelevant, confusing, and misleading information, including

statements of law contrary to the jury instructions.

       Ernst argues that even if the entirety of the presentation was correctly

excluded from evidence, the district court should have admitted the non-legal

slides. Specifically, there were several slides showing a permit holder should

keep his or her firearm secure and in his or her possession.             Error is not

preserved on this issue.       After the district court ruled the entirety of the

PowerPoint presentation should not be admitted into evidence, Ernst’s counsel

did not pursue the issue further. Counsel did not offer into evidence a redacted

presentation containing only the specific slides at issue and obtain a ruling on the

admissibility of the same. Accordingly, error is not preserved. See Quad City

Bank & Trust v. Jim Kircher & Assocs., P.C., 804 N.W.2d 83, 91–92 (Iowa 2011)

(holding error not preserved where testimony and exhibits were not offered and

the district court thus never ruled on the admissibility of the evidence).

       Ernst   contends     his   counsel     provided    constitutionally   deficient

representation in failing to offer the non-legal slides into evidence. We review de

novo claims of ineffective assistance of counsel. Everett v. State, 789 N.W.2d

151, 155 (Iowa 2010).        To succeed on an ineffective-assistance claim a

defendant must show “(1) counsel failed to perform an essential duty; and (2)

prejudice resulted.” State v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008). With
                                         7


respect to the first element, “we measure counsel’s performance against the

standard of a reasonably competent practitioner.” Id. Poor strategy or mistakes

in judgment normally do not rise to the level of ineffective assistance.       See

Ledezma v. State, 626 N.W.2d 134, 143 (Iowa 2001). Counsel’s failure to offer

evidence can be the basis for an ineffective assistance claim. See King v. State,

797 N.W.2d 565, 576 (Iowa 2011); Millam v. State, 745 N.W.2d 719, 721 (Iowa

2008) (“[W]e conclude Millam’s counsel failed in an essential duty by not offering

evidence of J.S.’s prior false claims of sexual abuse.”).     With respect to the

second element, prejudice exists if “there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.”   State v. Leckington, 713 N.W.2d 208, 217 (Iowa 2006).           “Both

elements do not always need to be addressed. If the claim lacks prejudice, it can

be decided on that ground alone without deciding whether the attorney

performed deficiently.” Ledezma, 626 N.W.2d at 142.

       Ernst has failed to establish constitutional prejudice. The issue of why

Ernst was in possession of handgun was not in great dispute or of great

significance at trial. The State did not dispute Ernst had a permit to carry a

firearm. And, the slides at issue were duplicative of other evidence. The district

court allowed Ernst to testify regarding the training he received when obtaining

his permit. Ernst testified he was trained to carry his weapon with him at all

times, when not secured, for safety reasons. He testified he had his weapon on

his person “because being—having a permit to carry, I’m responsible for it.”

“Exclusion of evidence is not prejudicial error where the same facts are shown by

other evidence.” State v. McClain, 125 N.W.2d 764, 770 (Iowa 1964).
                                          8


                                          B.

       Ernst contends the district court erred in denying his request to

supplement the malice-inference instruction. “[W]hen a jury instruction implicates

a constitutional right, our review is de novo.” State v. Green, 896 N.W.2d 770,

775 (Iowa 2017). We review challenges to jury instructions that do not implicate

a constitutional right for correction of errors at law. Alcala v. Marriott Int’l, Inc.,

880 N.W.2d 699, 707 (Iowa 2016).           “Iowa law requires a court to give a

requested jury instruction if it correctly states the applicable law and is not

embodied in other instructions.” Id. (quoting Sonnek v. Warren, 522 N.W.2d 45,

47 (Iowa 1994)).

       Instruction No. 21 provided, “Malice aforethought may, but is not required

to, be inferred from the defendant’s use of a dangerous weapon.” This is model

criminal jury instruction 700.10. Ernst requested the instruction be modified to

include the additional sentence that “the inference can be overcome by evidence

to the contrary showing a legal excuse such as self-defense.” The district court

denied the proposed modification on the ground that instructions regarding

justification and self-defense were contained in other instructions.

       We cannot conclude the district court erred in declining the proposed

instruction. “Malice aforethought . . . is a term of art used to describe a culpable

state of mind, an essential element of the offense of murder that the state must

prove to the jury beyond a reasonable doubt.” Green, 896 N.W.2d at 780. The

uniform jury instruction has been approved as a correct statement of the law.

See id. (stating “the jury may infer the defendant acted with malice aforethought

by using a dangerous weapon, the natural consequence of which is physical
                                         9

harm or death”). In the recent case of Green, the supreme court concluded the

uniform jury instruction was correctly given even where the defendant relied on a

justification defense. See id. at 781. The court reasoned a “defendant may

argue the inference is improper because, even though the weapon was deadly,

and even though the defendant intended the foreseeable consequences of using

it, the defendant had adequate provocation or fear of imminent bodily harm to

use the weapon.” Id. Because the instruction given was correct and because

the proposed language was contained in other instructions, the district court did

not err in declining the proposed instruction.     See State v. Shanahan, 712

N.W.2d 121, 140 (Iowa 2006) (“In evaluating a challenge to jury instructions, we

consider the instructions as a whole and not separately.”); State v. Fintel, 689

N.W.2d 95, 104 (Iowa 2004) (same).

                                    C.

      In his third claim of error, Ernst contends his right to due process was

violated when the prosecutor committed error or engaged in misconduct. First,

Ernst contends the prosecutor misstated the law on justification during his closing

argument. Specifically, Ernst takes issue with the State’s arguments regarding

whether Ernst had an alternate course of action.       Second, Ernst argues the

prosecutor made improper arguments during closing. In closing, the prosecutor

stated the defense’s witnesses, with the cooperation of defense counsel,

watched the security camera video before testifying and “tailored” their testimony

to fit the video. For example, the prosecutor directly stated, “Now [Jackson’s]

testimony is tailored.” The prosecutor also attacked defense counsel, arguing,

“And [Jackson] goes through step by step by step on direct examination with
                                         10


defense counsel, and he answers every one of their questions. And is for the

most part polite, knows the answers, isn’t argumentative, walks through—

remembers . . . . Of course, we only find out on cross-examination that he’s

been shown this video to which he can tailor his testimony, unlike the State’s

witnesses. We didn’t try to get these people to tailor their testimony to the video.”

       To establish a due process violation, the defendant must establish

prosecutorial misconduct or prosecutorial error.       See State v. Graves, 668

N.W.2d 860, 869 (Iowa 2003).          “Prosecutorial misconduct includes 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.’” State v. Schlitter, 881 N.W.2d 380, 394

(Iowa 2016) (citation omitted). Prosecutorial error, in contrast, occurs “‘where 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.’” Id. (citation omitted). “A prosecutor who has committed error

should not be described as committing misconduct.”           Id.   “Evidence of the

prosecutor’s bad faith is not necessary, as a trial can be unfair to the defendant

even when the prosecutor has acted in good faith.” Graves, 668 N.W.2d at 869.

       Whether the claim is one for prosecutorial misconduct or prosecutorial

error, the defendant must establish the misconduct or error “resulted in prejudice

to such an extent that the defendant was denied a fair trial.”         Id.; see also

Schlitter, 881 N.W.2d at 394 (concluding the Graves standard applies whether

the claim is prosecutorial misconduct or prosecutorial error). The prosecutor can
                                         11

deny the accused a fair trial in a variety of ways. See Schlitter, 881 N.W.2d at

393 (identifying a “range of trial conduct” constituting prosecutorial misconduct).

Whatever the conduct, “it is the prejudice resulting from misconduct, not the

misconduct itself, that entitles a defendant to a new trial.” State v. Piper, 663

N.W.2d 894, 913 (Iowa 2003), overruled on other grounds by State v. Hanes,

790 N.W.2d 545 (Iowa 2010).

       Ernst’s claims of prosecutorial misconduct/error raise significant issues. In

closing arguments, prosecutors are given “some latitude” to analyze evidence

and argue “reasonable inferences and conclusions to be drawn from the

evidence,” but we do not permit a prosecutor to “express his or her personal

beliefs.” Graves, 668 N.W.2d at 874. Iowa courts strongly disfavor accusations

of attorney unethical conduct. See State v. Webb, 244 N.W.2d 332, 333 (Iowa

1976) (“Lawyers should avoid making statements before a jury which tend to

prejudice a defendant’s right to a fair trial. This is particularly true when one

lawyer undertakes to accuse another of unethical conduct.”). Prosecutors cannot

make “inflammatory or prejudicial statements regarding a defendant in a criminal

action.” Graves, 668 N.W.2d at 874. A prosecutor “cannot instruct the jury on

the law.” State v. Clay, 824 N.W.2d 488, 497 (Iowa 2012). “The prosecutor also

cannot misstate the law.” Shanahan, 712 N.W.2d at 140. Additionally, “Iowa

follows the rule that it is improper for a prosecutor to call the defendant a liar, to

state the defendant is lying, or to make similar disparaging comments.” Graves,

668 N.W.2d at 876. A prosecutor may craft an argument by making reasonable

inferences and by asking the jury to make reasonable inferences, but the

prosecutor must not make disparaging comments or vouch for or against a
                                        12

witness’s credibility. See State v. Carey, 709 N.W.2d 547, 556 (Iowa 2006).

Other states have similar limitations on the scope of permissible argument with

respect to arguing credibility. See, e.g., Henry v. State, 651 So. 2d 1267, 1268

(Fla. Dist. Ct. App. 1995) (“The implication by the prosecutor in this case was that

the defense ‘got to’ the witness. That suggests that the defense was engaged in

tampering with a witness and suborning perjury, both criminal offenses. Such a

comment is highly irregular, impermissible, and prejudicial.”); State v. Hazley, 19

P.3d 800, 804 (Kan. Ct. App. 2001) (“[T]his court has recognized the potential

prejudice of a prosecutor’s negative comments on the defendant’s or defense

counsel’s credibility.”); State v. Mayhorn, 720 N.W.2d 776, 786 (Minn. 2006)

(“We have held that it is improper for a prosecutor to give her own opinion about

the credibility of a witness in closing argument.”); State v. Swanson, 707 N.W.2d

645, 656–58 (Minn. 2006) (stating “[w]e hold, however, that the statement ‘[t]he

state believes [Karol House] is very believable’ is impermissible” and noting

“[b]ecause the record contains neither evidence of tailoring nor any other reason

for the state’s argument, the prosecution’'s questions and comments were error”).

       We are unable to resolve the claims in this direct appeal, however.

Ernst’s counsel did not contemporaneously object to the prosecutor’s statements.

The claims are raised in this appeal as claims of ineffective assistance of

counsel. “[C]laims of ineffective assistance of counsel raised on direct appeal

are ordinarily reserved for postconviction proceedings to allow full development

of the facts surrounding counsel’s conduct.” State v. Atley, 564 N.W.2d 817, 833

(Iowa 1997). Here, trial counsel should be permitted the opportunity to explain

the failure to object to the prosecutor’s statements. There are potential strategic
                                        13


considerations in not interposing an objection during closing argument, including

a decision to avoid drawing attention to the prosecutor’s remarks. We preserve

the claims for further development in postconviction-relief proceedings.

                                        D.

      Ernst also challenges the sentencing order issued in this case.

Specifically, he challenges the provision for restitution related to payment of

court-appointed counsel’s attorney’s fees contained within the sentencing order.

      The State contends the restitution order is not final and not subject to

review.   We disagree.     Where the restitution provision is “contained in the

sentencing order, it is part of the sentence that may be challenged at any time,

whereas those matters that follow the entry of final judgment are collateral and

must be separately appealed.”       State v. Sanchez, No. 13-1989, 2015 WL

4935530, at *5 (Iowa Ct. App. Aug. 19, 2015); see also State v. Formaro, 638

N.W.2d 720, 727 (Iowa 2002) (distinguishing those situations where the terms

and conditions of bail are contained in a judgment and sentence and are

therefore subject to challenge on direct appeal with those situations in which the

court addresses the issue of bail following the entry of a judgment and sentence

and therefore the ruling must be separately appealed); State v. Alspach, 554

N.W.2d 882, 884 (Iowa 1996) (holding a defendant is entitled to court-appointed

counsel when challenging restitution imposed as part of the original sentencing

order and distinguishing restitution imposed in sentencing orders from later

actions to modify a restitution plan, which are “civil in nature and not part of the

criminal proceedings”).
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       Our review of the order at issue is for the correction of legal error. See

State v. Jose, 636 N.W.2d 38, 43 (Iowa 2001). The court considers “whether the

district court’s fact-findings lack substantial evidentiary support and whether the

court correctly applied the law.”    State v. Campbell, No. 15-1181, 2016 WL

4543763, at *1 (Iowa Ct. App. Aug. 31, 2016) (citing State v. Bonstetter, 637

N.W.2d 161, 165 (Iowa 2001)).

       We find no error in the district court’s sentencing order. The district court

set forth the categories of restitution and the amount to be paid. Specifically, the

district court ordered the defendant to pay counsel’s actual fees or the maximum

fee authorized by statute, whichever is less. The district court found Ernst was

reasonably able to pay up the maximum fee authorized by statute. See Iowa

Code § 910.2(1). The finding was supported by substantial evidence.

                                        III.

       For these reasons, we affirm the conviction and sentence in this case.

       AFFIRMED.
