                    IN THE COURT OF APPEALS OF IOWA

                                   No. 18-0560
                              Filed March 20, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

BRYCE ALBERT BISHOP,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Woodbury County, Steven J.

Andreasen, Judge.



      Bryce Bishop appeals the judgment and sentence entered after a jury found

him guilty of child endangerment resulting in bodily injury. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Brenda J. Gohr, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Thomas J. Ogden, Assistant

Attorney General, for appellee.



      Considered by Vogel, C.J., and Doyle and Mullins, JJ.
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DOYLE, Judge.

       The State charged Bryce Bishop with one count of child endangerment, in

violation of Iowa Code section 726.6(1)(a), (1)(b), and (6) (2016), and one count

of serious assault, in violation of Iowa Code section 708.2(2). Bishop appeals the

judgment and sentence entered after a jury found him guilty of child endangerment

resulting in bodily injury.

       Bishop contends the trial court failed to apply the correct standard in ruling

on his motion for new trial. Although we generally review rulings on motions for

new trial asserting a verdict is contrary to the weight of the evidence for an abuse

of discretion, we 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. See State v. Ary, 877

N.W.2d 686, 706 (Iowa 2016). In claiming the court applied the wrong standard to

his motion, Bishop relies on three statements in which the court makes reference

to the evidence supporting the jury’s verdict in its oral ruling on the motion.

However, a review of the full ruling shows the court weighed the evidence and

made determinations as to which evidence it found credible, and it found the

credible evidence supported a finding of guilt on the charge of child endangerment

resulting in bodily injury. Because it applied the proper standard in denying the

motion, we affirm.

       Bishop also contends his trial counsel was ineffective in failing to object to

the following jury instruction:

             You have heard evidence claiming Bryce Bishop made
       statements at an earlier time and place. If you find any of the
       statements were made, then you may consider them as part of the
       evidence, just as if they had been made at this trial.
                                            3


Bishop notes that the instruction is a modified reproduction of the model

instruction,1 which we are “slow to disapprove of.” State v. Ambrose, 861 N.W.2d

550, 559 (Iowa 2015). However, he argues there is no authority requiring the jury

to consider out-of-court statements as bearing the same weight as trial testimony

and claims “the jury should have been free to assign whatever weight and reliability

to the statements as it saw fit.”

       This court has repeatedly rejected similar challenges to this instruction. See

State v. Moore, No. 17-1822, 2019 WL 478236, at *2 (Iowa Ct. App. Feb. 6, 2019)

(further review petition pending); State v. Lopez-Aguilar, No. 17-0914, 2018 WL

3913672, at *8 (Iowa Ct. App. Aug. 15, 2018) (“This court has repeatedly found the

challenged instruction to be a correct statement of the law and repeatedly rejected

the same argument.”), further review denied (Oct. 8, 2018); State v. Garcia, No.

17-0111, 2018 WL 3913668, at *4 (Iowa Ct. App. Aug. 15, 2018) (finding counsel

did not breach an essential duty in failing to object to the instruction), further review

denied (Nov. 15, 2018); State v. Yenger, No. 17-0592, 2018 WL 3060251, at *4-5

(Iowa Ct. App. June 20, 2018), further review denied (Sept. 13, 2018); State v.

Hayes, No. 17-0563, 2018 WL 2722782, at *5 (Iowa Ct. App. June 6, 2018) (“This

court recently held this instruction correctly states the law and giving the instruction



1
  The model instruction includes the following additional language, which was not included
here:
                 You may also use these statements to help you decide if you
        believe the defendant. You may disregard all or any part of the defendant’s
        testimony if you find the statements were made and were inconsistent with
        the defendant’s testimony given at trial, but you are not required to do so.
        Do not disregard the defendant’s testimony if other evidence you believe
        supports it or you believe it for any other reason.
Iowa Crim. Jury Instructions 200.44. However, he does not argue that omitting this portion
of the instruction resulted in error.
                                           4

was not in error.” (footnote omitted)), further review denied (Aug. 3, 2018); State

v. Vandekieft, No. 17-0876, 2018 WL 2727720, at *7-9 (Iowa Ct. App. June 6,

2018) (finding jury instruction to consider out-of-court statements “as if they had

been made at this trial” correctly states the law), further review denied (Aug. 3,

2018); State v. Payne, No. 16-1672, 2018 WL 1182624, at *9 (Iowa Ct. App. Mar.

7, 2018) (“The instruction did not direct the jury to assign the statement any

particular weight or unduly emphasize the matter, nor did it create an improper

permissive inference or presumption.”), further review denied (July 23, 2018);

State v. Wynn, No. 16-2150, 2018 WL 769272, at *2-3 (Iowa Ct. App. Feb. 7, 2018)

(rejecting claim that instruction was a misstatement of law and noting it requires

no presumption or inference), further review denied (Apr. 4, 2018); State v.

Wineinger, No. 16-1471, 2017 WL 6027727, at *3 (Iowa Ct. App. Nov. 22, 2017)

(concluding instruction was “a correct statement of law”), further review denied

(Feb. 28, 2018); State v. Tucker, No. 13-1790, 2015 WL 405970, at *3 (Iowa Ct.

App. Jan. 28, 2015) (“The district court did not err in its instructions to the jury.”),

further review denied (Mar. 25, 2015). We are persuaded by our prior holdings

and see no reason to revisit the issue. Because the instruction is a correct

statement of the law, trial counsel had no duty to object to it. See State v. Fountain,

786 N.W.2d 260, 263 (Iowa 2010) (“Counsel has no duty to raise an issue that has

no merit.”). Bishop cannot show his trial counsel was ineffective on this basis.

       AFFIRMED.
