                    IN THE COURT OF APPEALS OF IOWA

                                    No. 18-0098
                                Filed May 15, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

LARRY DEANDRE RATLIFF JR,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, William P. Kelly, Judge.



      Larry Ratliff Jr. appeals his convictions of murder in the first degree, willful

injury causing serious injury, and assault with intent to inflict serious injury.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.




      Mark C. Smith, State Appellate Defender (until withdrawal), and Theresa R.

Wilson, Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Kyle Hanson, Assistant Attorney

General, for appellee.



      Considered by Vogel, C.J., and Doyle and Mullins, JJ.
                                           2


MULLINS, Judge.

       A jury convicted Larry Ratliff Jr. of first-degree murder, willful injury causing

serious injury, and assault with intent to inflict serious injury. On appeal, Ratliff

challenges the sufficiency of the evidence supporting his convictions. He also

asserts his trial counsel provided ineffective assistance by failing to object to faulty

jury instructions. Ratliff also contends the district court abused its discretion in

admitting cumulative and unduly prejudicial photographs into evidence.

I.     Background Facts and Proceedings

       Upon the evidence presented at trial, a reasonable jury could make the

following factual findings. During the late evening hours of April 11, 2017, police

responded to a call of shots fired in the 4000 block of Fagen Drive in Des Moines.

When officers arrived, they discovered a vehicle in a parking lot with two injured

individuals, Antonio Quinn and Michael James Jr. James was shot in the arm but

able to walk around and speak with officers. Quinn was seated in the vehicle’s

driver’s seat and covered in blood from gunshot wounds to his chest, arm, and

neck. Officers noted three bullet holes to the vehicle in the driver’s side windshield,

rear-view mirror, and A-pillar. Quinn ultimately succumbed to his injuries. During

their investigation, police determined Molly Peter drove Ratliff to the parking lot

where he was to meet Quinn for a drug transaction. Ratliff took an AK-47 type

semiautomatic rifle with him. The trial testimony differs as to what occurred after

the two vehicles arrived at the parking lot.

       During the initial police investigation, Ratliff provided multiple and

inconsistent accounts of his whereabouts on the night of the shooting, initially

claiming no knowledge of the shooting or the gun, and he was out of town that
                                          3


entire evening. Once police confronted Ratliff that the gun believed to be the

murder weapon was found hidden in his vehicle and his phone records did not

match his account of his whereabouts, Ratliff changed his version of events

several times. His versions included claiming the person who actually committed

the crime gave him the gun after the shooting in order to dispose of it and he only

acted as a lookout for the actual shooter. At trial, Ratliff admitted he had received

the gun prior to the shooting and took it along with him to the parking lot for a drug

transaction where he was to sell cocaine and ecstasy. He asked Peter to drive

him and, after arriving at the parking lot, he exited the vehicle and went to speak

with Quinn, who sat in the driver’s seat of his vehicle. Ratliff and Quinn discussed

the drug transaction, and Ratliff asked Quinn to pay him in smaller bills. Ratliff

then claimed he believed Quinn was reaching for a weapon so he grabbed his gun

and pointed it at Quinn. Quinn then grabbed for the gun and wrestled with him for

it, which Ratliff claimed caused the gun to accidentally fire. He then left the scene.

After his arrest, Ratliff attempted to send a note to Peter asking for witnesses to

prove another person committed the shooting and a letter telling her “don’t let them

bully you into saying nothing. Remember the best comment is no comment.”

       James’s version was that he and Quinn went to the parking lot in order for

Quinn to sell ecstasy that James had obtained for him. He saw Ratliff exit the

passenger side of the vehicle that pulled up alongside Quinn’s vehicle and walk

over to the driver-side window, where Quinn was located. James recognized and

was familiar with Ratliff but Quinn was not. After a discussion about the money

and the drugs, Ratliff did ask for change, after which Ratliff claimed he needed to

get something from the other vehicle. James saw Ratliff reach into the passenger-
                                             4


side window and turn back with a rifle. Ratliff pointed the gun at Quinn and stated

“Let me get all of that.” Quinn then grabbed the gun barrel and tried to wrestle it

away from Ratliff. At that point, James reached for the door handle on his side of

the vehicle and heard a shot. After looking back, he saw Quinn lying in his seat,

holding his body and gasping for air. Quinn told James he could not move. James

then saw Ratliff at the front of the vehicle where he shot again. At that point, James

exited the vehicle and ran away. When he turned around, he saw Ratliff get in the

other vehicle and leave the scene. James ultimately admitted to police that he

knew who Ratliff was and knew there was going to be a drug transaction.

       The State charged Ratliff and Peter in a joint trial information with first-

degree murder, first-degree robbery, and attempt to commit murder.1 A jury trial

was held in December 2017, during which Ratliff testified on his own behalf. The

jury returned verdicts finding Ratliff guilty of first-degree murder and two lesser-

included charges: willful injury causing serious injury to Quinn and assault with

intent to inflict serious injury to James. The court subsequently sentenced Ratliff

to life in prison on the murder charge. As noted, Ratliff appeals.

II.    Analysis

       A.      Sufficiency of the Evidence

       Ratliff contends the jury verdicts were not supported by sufficient evidence.

We review sufficiency-of-evidence challenges for correction of errors at law. State

v. Ramirez, 895 N.W.2d 884, 890 (Iowa 2017). “[W]e will uphold a verdict if


1
 Ratliff was also charged with possession of a firearm by a convicted felon. This charge
was severed from the other counts for purposes of trial. After trial, the court dismissed the
charge against Ratliff without prejudice based upon the State’s motion. The trials of Ratliff
and Peter were also severed.
                                                5

substantial evidence supports it.” Id. “Evidence is considered substantial if, when

viewed in the light most favorable to the State, it can convince a rational jury that

the defendant is guilty beyond a reasonable doubt.” Id. (quoting State v. Reed,

875 N.W.2d 693, 704–05 (Iowa 2016)). “The evidence must do more than raise

‘suspicion, speculation, or conjecture’ regarding defendant’s guilt.”                   State v.

Randle, 555 N.W.2d 666, 671 (Iowa 1996) (quoting State v. Barnes, 204 N.W.2d

827, 829 (Iowa 1972)). “We consider all the record evidence, not just the evidence

that supports the verdict.” State v. Biddle, 652 N.W.2d 191, 197–98 (Iowa 2002).

          Ratliff focuses his challenges on the intent element of each offense, arguing

the State failed to establish the requisite intent.

                   1.   First-Degree Murder—Malice Aforethought

          To convict Ratliff of first-degree murder, the instructions required the jury to

find: (1) Ratliff shot Quinn; (2) Quinn died as a result of being shot; (3) Ratliff acted

with      malice    aforethought;   and   (4)       Ratliff   “acted   willfully,   deliberately,

premeditatedly and with a specific intent to kill [Quinn].” Ratliff argues the evidence

is insufficient to prove he acted with the requisite malice aforethought and specific

intent.

          As an initial matter, the State argues Ratliff did not preserve error on his

claim of insufficient evidence on this element. Ratliff urges us to consider the

challenge as a claim of ineffective assistance of counsel in the alternative.

          Ratliff orally moved for judgment of acquittal after the State completed its

case-in-chief, arguing:

                 Specifically our client is charged with three different counts:
          First-degree murder, attempted murder, and robbery in the first
          degree. And the State’s evidence has failed to establish the requisite
                                          6


       intent that is needed for each of those crimes. Each of those crimes
       has a specific intent element to it, and the State has failed to
       establish that.
               ....
               But they have not proven that our client’s actions that night
       support its theory that he had the specific intent to commit a robbery
       and attempted murder or murder in the first degree.

       The court denied the motion, concluding, “The evidence presented by the

State as to each essential element of the crime has been substantial.” Ratliff

renewed his motion at the end of the trial but before the jury began its deliberations

based upon the same arguments as the earlier motion. The court again denied

the motion.

       “[A] defendant’s motion for judgment of acquittal only serves to preserve

error on a claim of insufficient evidence for appellate review in a criminal case if it

‘identifies the specific grounds raised on appeal.’” State v. Henderson, 908 N.W.2d

868, 875 (Iowa 2018) (quoting State v. Brubaker, 805 N.W.2d 164, 170 (Iowa

2011)); accord State v. Ross, 845 N.W.2d 692, 700 (Iowa 2014) (“Trial counsel is

required to make a specific objection in his or her motion for judgment of acquittal

in order to preserve error.”). However, “[i]neffective-assistance-of-counsel claims

are an exception to the traditional error-preservation rules.” State v. Fountain, 786

N.W.2d 260, 263 (Iowa 2010).

       Ratliff’s trial motion did not include an argument about the malice-

aforethought element of the first-degree murder charge. Accordingly, Ratliff’s

“motion for judgment of acquittal did not preserve the specific arguments he is now

making for the first time on appeal.” State v. Crone, 545 N.W.2d 267, 270 (Iowa

1996). Nevertheless, Ratliff “argues in the alternative that his trial counsel was
                                          7


ineffective and we can reach the sufficiency-of-evidence issue that way.”

Henderson, 908 N.W.2d at 868.

       Ineffective-assistance-of-counsel claims are reviewed de novo. State v.

Harrison, 914 N.W.2d 178, 188 (Iowa 2018).               Ratliff must show “by a

preponderance of the evidence both that counsel failed an essential duty and that

the failure resulted in prejudice.” Id. (quoting State v. Schlitter, 881 N.W.2d 380,

388 (Iowa 2016)). “[C]ounsel fails his or her essential duty by ‘perform[ing] below

the standard demanded of a reasonably competent attorney.’”              Id. (quoting

Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001)). “[W]e begin with the

presumption that the attorney performed competently” and “avoid second-

guessing and hindsight.” Ledezma, 626 N.W.2d at 142. Ratliff “must demonstrate

‘that there is a reasonable probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different.’” Id. at 143 (quoting

Strickland v. Washington, 466 U.S. 668, 964 (1984)).

       Ratliff claims the State failed to prove he acted with malice aforethought,

arguing he did not mean or desire to harm anyone. He claims the shooting of

Quinn was accidental, contending that if Quinn had not grabbed for the gun, the

gun would not have accidentally gone off.

       The court instructed the jury:

              “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
                                            8


       the act and its consequences, as distinguished from an act done in
       the heat of passion.

       The court further instructed, “‘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.” The

instructions also provided, “Malice aforethought maybe inferred from the

defendant’s use of a dangerous weapon.” Accord State v. Green, 896 N.W.2d

770, 781 (Iowa 2017).

       Ratliff does not dispute that he brought a semiautomatic, AK-47 type of gun

to the intended transaction in the parking lot, first leaving it in the car, then after an

encounter with Quinn, he quickly returned to the car and pointed the gun at Quinn.

The use of a gun supports the inference of malice aforethought. Further, while

Ratliff claims the shooting was accidental, “if the jury rejected [Ratliff’s] [accidental-

shooting] argument, it could, but was not required to, infer [Ratliff] acted with malice

aforethought from his use of a dangerous weapon.” Id. We find the record, when

viewed in the light most favorable to the State, contained substantial evidence for

a rational jury to conclude Ratliff acted with malice aforethought. His claim of

ineffective assistance of counsel therefore fails.

              2.      First-Degree Murder—Specific Intent

       Ratliff next contends the State failed to prove he specifically intended to kill

Quinn in a willful, premeditated, and deliberate manner.

       The court instructed the jury that “willful” meant “intentional or by fixed

design or purpose and not accidental”; “To deliberate” meant “to weigh in one’s

mind, to consider, to contemplate, or to reflect”; and to “premeditate” is to think or
                                          9


ponder upon a matter before acting. The court further instructed the jury that

“deliberation and premeditation need not exist for any particular length of time

before the act.” The court also instructed the jury:

             “Specific intent” means not only being aware of doing an act
       and doing it voluntarily, but in addition, doing it with a specific
       purpose in mind.
             Because determining the defendant’s specific intent requires
       you to decide what he was thinking when an act was done, it is
       seldom capable of direct proof. Therefore, you should consider the
       facts and circumstances surrounding the act to determine the
       defendant’s specific intent. You may, but are not required to,
       conclude a person intends the natural results of his acts.

       “Premeditation may be shown through evidence of . . . the nature of the

killing including the use of a deadly weapon combined with an opportunity to

deliberate.” State v. Buenaventura, 660 N.W.2d 38, 48 (Iowa 2003). “[T]he law

does not require any minimum amount of time to premeditate and a few minutes

are certainly adequate.” Id. at 49. “Premeditation [can be] shown by the nature of

the crime and the defendant’s actions afterwards.” Id.

       “Admissions made by a defendant are evidence.” State v. Cox, 500 N.W.2d

23, 25 (Iowa 1993).     The “conduct of the defendant subsequent to a crime,

including fabrication,” can constitute an implied admission, “when such conduct

indicates a consciousness of guilt.” Id. Further, “[a] false story told by a defendant

to explain or deny a material fact against him is by itself an indication of guilt and

the false story is relevant to show that the defendant fabricated evidence to aid his

defense.” Id.

       Here, the evidence showed and Ratliff does not dispute that he brought a

semiautomatic, AK-47 type gun to the parking lot. Further, Ratliff left the gun in

Peter’s vehicle when he initially approached Quinn’s vehicle. However, he left it
                                           10


on the passenger seat. After some discussion about the drug deal, Ratliff quickly

returned to Peter’s vehicle, grabbed the gun, and pointed it at Quinn. Ratliff does

not dispute those facts. While Ratliff claimed that the shots were the result of

Quinn grabbing and fighting over the gun, multiple witnesses testified that Ratliff

fired at least one shot into the vehicle while standing near the front of it, without

any interference by anyone. A firearms expert also testified that the gun was not

a fully-automatic weapon, so the gun required a manual pull and release of the

trigger for each shot. The expert further testified the gun did not have a “hair

trigger,” which would only require a light trigger pull to shoot the gun. Finally,

Ratliff’s actions after the shooting, including telling police multiple stories about the

shooting and denying he was at the location or had knowledge of the gun, indicate

a consciousness of guilt. The jury was free to reject Ratliff’s accidental-shooting

version of events. Based upon all of the facts and circumstances contained in the

record, we conclude the jury could rationally conclude that Ratliff intended to kill

Quinn.

               3.     Willful Injury Causing Serious Injury—Specific Intent

         To convict Ratliff of willful injury causing serious injury, the instructions

required the jury to find: (1) Ratliff shot Quinn; (2) Ratliff specifically intended to

cause serious injury to Quinn; and (3) Ratliff caused a serious injury to Quinn. As

with his other claims, Ratliff focuses his challenge on the specific-intent element of

the offense. He argues he did not know Quinn and had no animus toward him,

contending the shooting was accidental. Upon our review of the record, we find a

rational jury could infer Ratliff had a specific intent to seriously injury Quinn. Ratliff

did not dispute that he grabbed a gun and pointed it at Quinn. Further, as indicated
                                           11


above, multiple witnesses testified that Ratliff fired at least one shot into the vehicle

without any interference, despite Ratliff’s assertion that the gun only fired because

Quinn grabbed and wrestled with the gun. Therefore, we conclude the jury could

rationally conclude Ratliff intended to cause serious injury to Quinn.

              4.      Assault with Intent to Inflict Serious Injury—Specific Intent

       To convict Ratliff of assault with intent to inflict serious injury, the

instructions required the jury to find: (1) Ratliff did an act intended to either (a)

cause pain or injury, (b) result in insulting or offensive physical contact, or (c) place

James in fear of immediate physical contact which would be painful, injurious,

insulting, or offensive to James; (2) Ratliff had the apparent ability to do the act;

and (3) Ratliff’s act was done with the specific intent to cause serious injury to

James.

       While James testified that Ratliff pointed the gun at Quinn, he did not testify

that Ratliff pointed the gun at him. Instead James testified that after reaching into

Peter’s vehicle, Ratliff turned back, pointed the gun at Quinn, and told Quinn to

give him everything he had. After grabbing the gun, Quinn and Ratliff wrestled for

control of it. The gun was pointed in James’s direction as a result of this struggle.

The State produced no other evidence that Ratliff specifically intended to injure

James. Based upon our review of the record, even viewing the record in the light

most favorable to the State, we find there was insufficient evidence to support a

conviction of assault with intent to inflict serious injury as to James.

       B.     Ineffective Assistance of Counsel

       Ratliff next contends his trial counsel provided ineffective assistance by

failing to object to the jury instructions pertaining to two lesser-included offenses.
                                         12


“When a jury convicts a defendant of a greater offense, no prejudice results from

the jury considering his guilt of a lesser offense.” State v. Albright, 925 N.W.2d

144, 157 (Iowa 2019). Given that the jury convicted Ratliff of first-degree murder

and willful injury causing serious injury, and not the lesser-included offenses he

complains about, counsel’s failure to challenge the court’s instructions on those

lesser-included offenses did not prejudice him.         Ratliff concedes as much.

Accordingly, this claim of ineffective assistance of counsel fails.

       C.     Admission of Photographs

       Finally, Ratliff contests the district court’s ruling on the admissibility of

photographs of the murder weapon, including several of Ratliff holding the rifle.

He contends the trial court erred in admitting the photographs as cumulative to

other evidence offered by the State and unduly prejudicial. Ratliff also challenges

the use of a photograph admitted as an exhibit of him with the gun during the

State’s rebuttal argument.

       We review the district court’s evidentiary rulings for an abuse of discretion.

State v. Einfeldt, 914 N.W.2d 773, 778 (Iowa 2018). “If a trial court exercises its

discretion ‘on grounds or for reasons clearly untenable or to an extent clearly

unreasonable,’ an abuse of discretion has occurred.” Id. (quoting Buenaventura,

660 N.W.2d at 50). “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.”

State v. Putman, 848 N.W.2d 1, 7 (Iowa 2014) (quoting In re Det. of Stenzel, 827

N.W.2d 690, 697 (Iowa 2013)). “Even if a trial court has abused its discretion,

prejudice must be shown before we will reverse.” Id.
                                         13


       At issue are exhibits 18 through 24. Exhibits 18 and 19 showed the gun

being held in someone’s hand but does not show the identity of that person.

Exhibits 20 and 21 showed Ratliff holding the gun with the muzzle pointed upwards

with his face visible.2 Exhibits 22 and 23 seem to be the same photograph of an

extreme close-up of Ratliff holding the gun pointed at the camera with the muzzle

extremely close to the lens. Exhibit 24 is the gun lying on some clothes or bags

with no person visible. Before trial, the State moved to admit the exhibits, at which

point the defense objected to the photographs as cumulative and overly prejudicial.

The court overruled the objection and admitted the photographs. During the

testimony of the lead detective, the State published the photographs to the jury.

The detective explained exhibits 18 through 23 were recovered from Ratliff’s phone

after he attempted to delete them and exhibit 24 was recovered from Peter’s

phone. The State briefly referenced the photographs during its closing argument.

The State also used exhibit 22 in its rebuttal argument.

       “Relevant evidence is admissible,” and irrelevant evidence is not. Iowa R.

Evid. 5.402. “Even when evidence is relevant, it ‘may be excluded if its probative

value is substantially outweighed by the danger of unfair prejudice.’” State v.

Taylor, 689 N.W.2d 116, 123 (Iowa 2004) (quoting Iowa R. Evid. 5.403). Further,

the court may exclude relevant evidence if it “needlessly present[s] cumulative

evidence.” Iowa R. Evid. 5.403.

       Ratliff does not contest the relevancy of the photographs. Therefore, the

question becomes whether the probative value of the evidence was substantially


2
 Exhibit 21 shows Ratliff wearing the same hat and clothes and in the same location as
exhibit 20, however, the image is very blurry.
                                         14

outweighed by a danger of unfair prejudice.         See id.    “Evidence is unfairly

prejudicial if it, ‘[a]ppeals to the jury’s sympathies, arouses its sense of horror,

provokes its instinct to punish, or triggers other mainsprings of human action that

may cause the jury to base its decision on something other than the established

propositions in the case.’” State v. Price, 692 N.W.2d 1, 5 (Iowa 2005) (quoting

State v. White, 668 N.W.2d 850, 854 (Iowa 2003)). “Weighing probative value

against prejudicial effect ‘is not an exact science,’ so ‘we give a great deal of

leeway to the trial judge who must make this judgment call.’” Einfeldt, 914 N.W.2d

at 784 (quoting Putman, 848 N.W.2d at 10). “For us to hold the trial court abused

its discretion in determining the danger of unfair prejudice created by the admission

of evidence did not substantially outweigh its probative value, the complaining

party must show that the trial court’s action was unreasonable in the light of

attendant circumstances.” State v. Buchanan, No. 03-0230, 2004 WL 1071896, at

*3 (Iowa Ct. App. May 14, 2004).

       The State argues the evidence provided proof of identity and access to the

weapon before the shooting. During the police investigation, Ratliff gave several

inconsistent stories about the possession of the gun, including denying all

knowledge of the gun and asserting he only received the gun after the shooting in

order to dispose of it for another.

       Considering the facts and circumstances of this case, the publication of the

exhibits to the jury “merely embellished the verbal picture of the events already

provided by the testimony” of witnesses. State v. Munz, 355 N.W.2d 576, 580

(Iowa 1984). By the time of publication of the photographs, other witnesses had

testified to the use of the gun in the shooting and Ratliff’s possession of the gun at
                                           15


the time of the shooting. Further, most of the photographs were recovered from

Ratliff’s own phone and put knowledge of the murder weapon and the actual

weapon in Ratliff’s possession before the shooting. This was in direct contradiction

to several of Ratliff’s statements to the police about his involvement, or lack

thereof, in the shooting.      Further, “[e]ven if we assume the evidence was

cumulative, that is not a sufficient reason, standing alone, to require its exclusion;

its admissibility still turns on the trial court’s discretion.” Id. Upon our review of the

record, we do not find an abuse of discretion in the admittance of the photographs

and their publication to the jury.

        Ratliff further argues that the State’s use of exhibit 22 in its rebuttal

argument was a violation of “golden-rule” doctrine, prohibiting arguments asking

the jury “to place themselves in the position of the victim.” State v. Musser, 721

N.W.2d 734, 754 (Iowa 2006) (quoting Lucas v. State, 335 So. 2d 566, 567 (Fla.

Dist. Ct. App.1976)). The transcript reflects the State used the exhibit in its rebuttal

argument while stating: “We have to rely on evidence, the testimony of those who

were there and saw things and heard things and investigated this case. But

interestingly enough, we can get a feel from what really happened. That’s the last

thing Tony Quinn saw before the defendant murdered him.”                 The transcript

includes a court reporter’s note that at the end of that last sentence: “(indicating).”

After the jury left to begin its deliberations, defense counsel made a record about

the State’s use of the photograph in its rebuttal argument but made no objection

and did not move for a mistrial.
                                           16


       The State argues Ratliff failed to preserve error because trial counsel did

not object and no claim of prosecutorial misconduct or error3 was made to the trial

court after the State’s argument. However, Ratliff argues in the alternative that

counsel provided ineffective assistance by failing to object. Therefore, we will

proceed to the merits of the claim. The following framework applies to assessing

a prosecutorial-misconduct claim raised within an ineffective-assistance-of-

counsel claim:

                In analyzing [Ratliff’s] ineffective-assistance-of-counsel claim,
       our first step is to assess whether the record demonstrates, as a
       matter of law, the existence or absence of a meritorious due process
       violation. Thus, we must consider whether the prosecutor was guilty
       of misconduct in the particulars identified by [Ratliff] and whether the
       record shows [Ratliff] was prejudiced, i.e., denied a fair trial.
                If the record is insufficient to make this determination, we must
       preserve [Ratliff’s] ineffective-assistance claim for a fuller
       development of the pertinent facts. If, however, the record shows
       that either element is lacking as a matter of law, we will affirm
       [Ratliff’s] conviction without preserving his due process claim for a
       later postconviction-relief action.

State v. Graves, 668 N.W.2d 860, 869–70 (Iowa 2003).

        “[A] prosecutor ‘is entitled to some latitude during closing arguments in

analyzing the evidence admitted in the trial.’” Musser, 721 N.W.2d at 754 (quoting

Graves, 668 N.W.2d at 874).

       “[A] prosecutor may argue the reasonable inferences and
       conclusions to be drawn from the evidence,” but may not suggest
       that the jury decide the case on “any ground other than the weight of
       the evidence” introduced at trial. In addition, a prosecutor is not


3
 Prosecutorial misconduct occurs when “a prosecutor intentionally violates a clear and
unambiguous obligation or standard imposed by law, applicable rule or professional
conduct,” or “recklessly disregards a duty to comply with an obligation or standard.”
Schlitter, 881 N.W.2d at 394 (citation omitted). “Prosecutorial error 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).
                                         17


       “allowed to make inflammatory or prejudicial statements regarding a
       defendant in a criminal action.”

Id. (quoting Graves, 668 N.W.2d at 874).

       Here, we find that although the State did not directly ask the jury to put

themselves in Quinn’s shoes, her comments could be understood to make that

inference. However, “[p]rosecutorial misconduct alone does not entitle” Ratliff to

his requested relief, as “[t]here must be proof the misconduct resulted in prejudice

to the extent [Ratliff] was denied a fair trial.” Id. at 755. To determine if any

prejudice resulted from misconduct, we consider several factors “within the context

of the entire trial.” Graves, 668 N.W.2d at 869 (quoting State v. Piper, 663 N.W.2d

894, 913 (2003)). We consider “the severity and pervasiveness of the misconduct,

the significance of the misconduct to the central issues in the case, the strength of

the State’s evidence, the use of cautionary instructions or other curative measures,

and the extent to which the defense invited the misconduct.” Id. (altered for

readability).

       While we “frown upon the prosecutor’s improper appeal to the jury to convict

the defendant for reasons other than his guilt as established by the State’s

evidence,” we are unable to say Ratliff was denied a fair trial. See Musser, 721

N.W.2d at 757. The district court provided the jury with curative instructions that

arguments by counsel were not evidence upon which the jury could base its verdict

upon. “A jury is presumed to follow the instructions of the court.” State v. Ondayog,

722 N.W.2d 778, 785 n.2 (Iowa 2006). Further, the picture in question had already

been published to the jury during witness testimony. We find Ratliff cannot show
                                          18


prejudice, therefore he cannot meet the burden for a prosecutorial-misconduct

claim. Accordingly, he cannot show ineffective assistance of counsel.

III.   Conclusion

       We find the jury’s verdicts for murder in the first degree and willful injury

causing serious injury are supported by substantial evidence and therefore affirm

the judgments and sentences of the district court for those offenses. We find the

State failed to establish sufficient evidence for assault with intent to inflict serious

injury. Accordingly, we reverse the judgment and sentence for that offense and

remand for dismissal of the charge.         We find Ratliff’s trial counsel was not

ineffective and the court did not abuse its discretion in admitting photographs

showing Ratliff holding the murder weapon.

       AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
