                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-1478
                             Filed February 10, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

MIRANDA PETITHORY-METCALF,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Karen A. Romano,

Judge.



      Miranda Petithory-Metcalf appeals her conviction, following a jury trial, for

murder in the second degree. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Bradley M. Bender,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant

Attorney General, for appellee.



      Heard by Danilson, C.J., and Vogel and Potterfield, JJ.
                                          2


PER CURIAM.

       Miranda Petithory-Metcalf (Petithory) appeals her conviction, following a

jury trial, for murder in the second degree. She first asserts sufficient evidence

does not support the jury’s finding she acted with malice aforethought, and

therefore, the district court erred when it denied her motion for judgment of

acquittal. She also argues the court abused its discretion when it denied her

motion in limine requesting she be allowed to cross-examine a witness about the

matter of his U-Visa. Furthermore, she asserts trial counsel was ineffective for

failing to file a motion for new trial asserting the verdict was against the weight of

the evidence. In her final argument, she claims trial counsel was ineffective for

withdrawing her motion to suppress, which had already been granted by the

district court, thus allowing in evidence of her statements to police prior to being

read her Miranda warnings.

       We conclude that, with the consistent testimony of the witnesses

establishing Petithory was the aggressor while arguing with the victim just prior to

the stabbing, sufficient evidence supports her conviction for murder in the second

degree. Additionally, the district court did not abuse its discretion when it ruled

evidence of one of the witness’s U-Visa application was inadmissible for lack of

relevance.   Particularly given our conclusion sufficient evidence supports the

guilty verdict, trial counsel was not ineffective for failing to move for a new trial

challenging the weight of the evidence.         Finally, we preserve for possible

postconviction-relief proceedings Petithory’s claim trial counsel was ineffective

for withdrawing the already-granted motion to suppress. Consequently, we affirm

her conviction for murder in the second degree.
                                        3


I. Factual and Procedural Background

       At trial, the jury could have found the following facts. On November 28,

2013, Petithory and several friends were drinking together in an apartment, after

which the group decided to go to a bar. The first group with whom Petithory was

drinking included Melvin Benitez (Melvin); his twenty-one-year-old mentally

disabled brother, Salvador Benitez (Salvador); their cousin, Luis Ramirez; and

Petithory’s friend, Megan Weaver. At the bar, the group met up with Juan Carlos

Garcia-Chavarria (Chavarria), Fermin Cerbellon, and Irvan Alfaro-Hernandez

(Alfaro).    Shortly before the bar closed, the group decided to go to Alfaro’s

apartment. On the way, the group in Petithory’s car dropped Weaver off at her

residence.

       Chavarria had moved into Alfaro’s apartment that day, and he was not

very well known by most of the people in the group. Once everyone arrived at

the apartment, they continued to drink beer. Because the apartment was not

furnished, they stood around the kitchen listening to music. At some point in the

night, Cerbellon requested to leave. Petithory offered to drive him in her car, but

she could not locate her keys. Melvin stated they could use his car; so he,

Petithory, and Cerbellon left.

       While Petithory and Melvin were gone, the following incidents took place.

Chavarria wanted to go somewhere but because Melvin’s car was gone he could

not do so, and he became angry. He demanded that Ramirez and Salvador

leave the apartment, which they did, but they stayed in the building. They called

Melvin to pick them up. While the two were out of the apartment, Alfaro lay down

on the floor and fell asleep. When he woke up, he saw broken beer bottles and
                                          4


glass throughout the apartment. Alfaro asked Chavarria what had happened,

and Chavarria “started to go crazy,” slapping Alfaro twice in the face. After their

altercation, Alfaro told Chavarria to leave the apartment, so Chavarria took his

suitcase and left.

        After he exited the apartment building, Chavarria tried to get back in, but

the security door had locked behind him. Ramirez let him back into the building,

and Chavarria apologized for demanding that Ramirez and Salvador leave, and

invited them back in. The three men went back to the apartment. Chavarria

knocked on the door, apologizing for his behavior, and Alfaro allowed everyone

to come back into the apartment. Chavarria then went into the bedroom to lie

down.

        Petithory and Melvin returned to the apartment to pick up Ramirez and

Salvador. They saw the shards of glass scattered around the floor and asked

who had broken the beer bottles. Alfaro stated Chavarria was drunk, crazy, and

had broken the bottles.1 Melvin told Salvador they were leaving. Petithory stated

she could not find her keys and went into the bedroom. Melvin testified she was

angry because of the broken bottles, was “very, very loud, [s]tart[ed] cussing,”

and went into the bedroom to tell Chavarria to clean the apartment, though

Petithory stated she went into the bedroom to look for her keys. With regard to

the events that took place in the bedroom, all witnesses acknowledged they

heard yelling and a loud thump, which sounded like someone slamming against

1
 Alfaro testified that when Petithory and Melvin came back to the apartment and saw the
broken bottles, Petithory “was like oh, let me talk to him . . . .” With regard to her
demeanor, Alfaro stated: “I think she came mad because before we hang out, we never
do that. I mean, we just have fun, and I think she got surprised when she see all the
mess in my house . . . . [She had a] normal voice.”
                                          5


the wall.   Alfaro surmised that Chavarria had shoved Petithory into a wall;

Petithory testified Chavarria pushed her, she pushed him back, and he pushed

her a final time into the wall.

       The witnesses to the stabbing included Melvin, Salvador,2 Alfaro, and

Ramirez.     At trial, they testified in the following manner.       Melvin asserted

Chavarria backed out of the bedroom with Petithory following him down the

hallway, yelling at him to clean up and swearing at him. He stated Chavarria, in

Spanish, responded she was crazy, and he was not going to clean up the mess.

He was also swearing at her, which made Petithory angrier. Chavarria stated

“[t]his b*tch is crazy. Get her . . . the f**k off of me.” Melvin then heard Petithory

say, “[Y]ou don’t know what I’m capable of. You don’t know me. You don’t know

what I can do.”3 He then saw she had a knife in her hands, so he went over to

Petithory and told her “you need to calm down, you got your kid.” Thinking the

altercation was over, Melvin turned around, and when he looked back, Chavarria

had been stabbed.


2
   Salvador did not testify at trial.
3
   His testimony at trial was not entirely consistent with his deposition testimony, as
illustrated by the following exchange:
                 Q: And then you claim that Miranda said, you don’t know what I’m
         capable of. What she actually said to him is, you don’t know me; isn’t that
         correct? That’s what she said to him, you don’t know me? A: No.
                 Q: Mr. Benitez, you understand . . . you were deposed by me back
         in March? A: Yes.
                 Q: And do you recall me asking you tell me what Miranda was
         saying and tell me what Juan was saying? Do you remember me asking
         you those questions? A: Yeah.
                 Q: Okay. Now, at no time when I deposed you under oath in
         March did you ever say that Miranda said you don’t know what I’m
         capable of? You never told me that then, did you? A: No. I don’t think
         so. No.
                 Q: So today . . . four months later, now you’re telling me that that’s
         what she said? A: Yes.
                                          6


       Alfaro testified that after Petithory went into the bedroom, he heard

yelling—Petithory speaking English and Chavarria speaking Spanish—and

Chavarria calling Petithory a “b*tch.”4       Petithory then exited the bedroom,

grabbed bottles and cans from the kitchen, and went back in the bedroom,

throwing them at Chavarria. Alfaro heard a bump that sounded as if someone

fell into the wall, and Petithory said “ouch.” Chavarria exited the bedroom first,

with Petithory following, but he also testified he saw Chavarria push Petithory

outside the bedroom door. The two then circled each other in the kitchen with

Chavarria in front and Petithory following. The group was telling the two to calm

down, but they continued yelling at each other, with Chavarria saying Petithory

should “calm down” and “shut up.”         After the two were in the living room,

Petithory pulled her switchblade knife from inside her bra and stabbed Chavarria.

Alfaro further noted Chavarria was smaller than Petithory.

       Ramirez testified that, after coming back to Alfaro’s residence, Petithory

“said nobody is going to disrespect my homie’s apartment,” at which point she

went into the bedroom, looking “mad.” Chavarria and Petithory proceeded to yell

at each other. Ramirez heard “slapping,” and Petithory saying something about

hitting a woman. Chavarria then exited the bedroom backwards, with Petithory

following him, and the two continued yelling at each other. He further stated

Petithory was hitting Chavarria “all the time” while Chavarria said, “[Y]ou’re crazy.

Just leave me alone. I don’t want to hit you. Just leave me alone.”         Petithory


4
  The transcript shows the Spanish word is “puta,” which, according to the Spanish-
English Dictionary, means whore or prostitute; whereas Alfaro testified the word means
“bitch.” See David L. Gold & Margaret H. Raventos, Random House Webster's Spanish-
English English-Spanish Dictionary 485 (2d ed. 2006).
                                               7


responded, “you don’t know me and you don’t know what I’m capable of.” After

the two went into the living room, he saw Petithory stab Chavarria.

          In her testimony, Petithory characterized the events in the following

manner. She stated she went into the bedroom to find her keys,5 but she did not

know Chavarria was in the bedroom.                 She asked him where her keys were

located, and he became angry, calling her a “b*tch” and other curse words in

Spanish. She asked why he was being disrespectful, and he shoved her; so she

pushed him back and asked, “[W]hy are you hitting me?” She stated he was

standing in front of the door, so she threw a beer can at him and pushed him

backwards in order to leave the bedroom, at which point the two went into the

front room of the apartment. She was feeling “scared” and asking why the other

men were not helping, as they were speaking in Spanish and she could not

understand them.

          With regard to the stabbing, Petithory testified that as she and Chavarria

were in the living room, she attempted to go to Melvin so they could leave when

Chavarria began walking towards her, yelling.               She became frightened and

wanted to keep him away from her, so she took the knife out of her bra as “an

intimidation so that he would stay away from me. And when he started coming

towards me, I was scared he was going to take it.” At that point she jabbed him

once, he fell, and she began crying and apologizing. She testified she did not

intend to cause his death.             Evidence established she had the knife for

approximately one month before the stabbing and that it had a double-edged

blade.

5
    Evidence at trial established Petithory’s keys were later located in Chavarria’s pocket.
                                         8


       Additionally, Alfaro, Melvin, and Ramirez testified nobody was blocking the

door and it was possible for Petithory to leave. While Petithory acknowledged

she could have left the apartment during the altercation, she stated she did not

feel she could leave through the other exit, a side door, “[b]ecause there was two

locks on that door and it’s hard to open.”      Evidence further established that

Petithory lied on several occasions, stating she did not remember the events

“[b]ecause [she] didn’t want to get into detail and explain to anybody what had

happened.”

       On January 8, 2014, Petithory was charged with murder in the first

degree, a class “A” felony, in violation of Iowa Code sections 707.1 and

707.2(1)(a) (2013).   She filed a notice of defense, intending to rely on the

affirmative defenses of intoxication and justification at trial. On June 25, 2014,

Petithory filed a motion in limine that sought to exclude the following: (1) any

evidence or testimony that Petithory invoked her constitutional rights; (2) any

video or audio tape evidence from the police station; (3) any evidence or

testimony concerning Petithory’s state of mind and/or emotions; (4) any evidence

or testimony concerning her fear or lack of fear of the victim; (5) any evidence or

testimony that Petithory was not acting in self-defense; (6) any evidence or

testimony from Cerbellon; (7) any evidence or testimony regarding the knife

found in Petithory’s car; and (8) any evidence or testimony that Petithory

obtained drugs. She also filed a motion under Iowa Rule of Evidence 5.104,

specifically requesting the district court exclude evidence regarding a videotape

of Petithory, taken at the police station, which took place prior to her having been
                                            9

read her Miranda rights.6       On June 27, she also filed a motion to suppress

statements she made to Officer David Cerne after he escorted her to his police

vehicle, arguing she was in custody without having been read her Miranda

rights.7

       A hearing on these motions was held on July 2, 2014, and the court in

large part granted Petithory’s motion in limine. With respect to the motion to

suppress, the court ruled Petithory had been in custody when sitting in Officer

Cerne’s vehicle, and because she had not been read Miranda warnings, any

statements she made to Officer Cerne during that time were to be excluded from

evidence. However, the court denied Petithory’s rule 5.104 motion as to the

videotaped statements at the police station. Regarding the State’s request that

evidence of the witnesses’ immigration status be excluded, the court noted that

immigration status alone is not relevant as a means of impeachment;

nonetheless, the evidence might be relevant if Petithory could make a showing,

through an offer of proof, that a witness had applied for a U-Visa.8

       Trial commenced on July 14, 2014. During trial, Petithory made an offer

of proof attempting to establish Alfaro had inquired about applying for a U-Visa


6
  This recording of her in the police station included statements she made to police—
namely, that she did not know what happened to Chavarria—as well as phone calls she
made to various family members.
7
  This evidence included a videotape of her in the police vehicle, during which time she
appeared upset and repeatedly told the officer she did not see what happened but,
rather, was in another room at the time of the stabbing.
8
   A U-Visa is a nonimmigrant visa set aside for victims of crimes. See Victims of
Criminal Activity: U Nonimmigrant Status, United States Citizen & Immigration Services,
https://www.uscis.gov/humanitarian/victims-human-trafficking-other-crimes/victims-
criminal-activity-u-nonimmigrant-status/victims-criminal-activity-u-nonimmigrant-status
(last visited Jan. 14, 2016). As the State characterized the U-Visa at oral argument, it is
an assurance for witnesses and victims of crimes so they may come forward to testify
without fear of deportation.
                                       10


before his trial testimony based on his connection with the crime. The district

court ruled evidence of Alfaro’s immigration status was inadmissible for lack of

relevance. Additionally, during trial, Petithory’s counsel withdrew the already-

granted motion to suppress, which allowed the State to introduce evidence,

including a video, of statements Petithory made while in Officer Cerne’s custody

detained in his vehicle. Following the close of evidence, the jury found Petithory

guilty of murder in the second degree, in violation of Iowa Code sections 707.1

and 707.3. Petithory appeals.

II. Standard of Review

      We    review   sufficiency-of-the-evidence   and   evidentiary   claims   for

correction of errors at law. State v. Quinn, 691 N.W.2d 403, 407 (Iowa 2005).

Our review of ineffective-assistance-of-counsel arguments is de novo. State v.

Straw, 709 N.W.2d 128, 133 (Iowa 2006).

III. Sufficiency of the Evidence

      Petithory first asserts the court erred when it denied her motion for

judgment of acquittal, as there was not sufficient evidence to support the jury’s

guilty verdict. She argues evidence established she was justified in stabbing

Chavarria because her testimony demonstrated she acted reasonably and in

self-defense. Therefore, she claims the evidence does not support the jury’s

finding that she acted with malice aforethought, which is necessary for her

conviction for second-degree murder.

      When reviewing challenges to the sufficiency of the evidence, we view the

record in the light most favorable to the non-moving party—here, the State;

additionally, we make all legitimate inferences and presumptions that may be
                                         11

reasonably deduced from the evidence. State v. Buenaventura, 660 N.W.2d 38,

48 (Iowa 2003).      “We consider all evidence, not just that of an inculpatory

nature.”   Id.   If substantial evidence supports the verdict, we will affirm.   Id.

Evidence is substantial if it would convince a reasonable trier of fact the

defendant is guilty beyond a reasonable doubt. Id.

      To convict Petithory of murder in the second degree, the State was

required to show Petithory killed Chavarria with malice aforethought. See Iowa

Code §§ 707.1, 707.3. With regard to the element of malice aforethought, our

supreme court has noted:

              [It is] an essential element of second-degree murder and is
      an element that separates second-degree murder from other lesser
      included offenses. Malice aforethought is defined as a fixed
      purpose or design to do some physical harm to another existing
      prior to the act complained of; it need not be shown to have existed
      for any length of time before . . . . [I]t is sufficient if such purpose
      was formed and continued to exist at the time of the injury.
              The law allows a presumption of malice aforethought from
      the use of a deadly weapon in the absence of evidence to the
      contrary. Thus, the presumption is only permissive. And the
      presumption may be rebutted by evidence showing the killing was
      accidental, under provocation, or because of mental incapacity.
      Although motive for the killing is not a necessary element of
      second-degree murder, absence of such motive may be considered
      on the question of whether the defendant acted with malice
      aforethought.

State v. Reeves, 670 N.W.2d 199, 207 (Iowa 2003). Additionally, we note this

element may be established by circumstantial evidence. Id.

      The use of a deadly weapon is enough to create the presumption of

malice aforethought. See State v. Haffa, 71 N.W.2d 35, 44 (Iowa 1955) (noting

the State offered “sufficient proof to raise the presumption of malice

[aforethought] by the admitted use of the deadly weapon”). Pursuant to Iowa
                                                12

law, a switchblade knife is a dangerous weapon.                   See Iowa Code § 702.7

(“Dangerous weapons include but are not limited to any offensive weapon, pistol,

revolver, or other firearm, dagger, razor, stiletto, switchblade knife, knife having a

blade exceeding five inches in length, or any portable device or weapon directing

an electric current, impulse, wave, or beam that produces a high-voltage pulse

designed to immobilize a person.” (emphasis added)).                       Thus, there is a

presumption Petithory acted with malice aforethought.                          However, this

presumption may be rebutted by a showing of justification. Reeves, 670 N.W.2d

at 207–08.

          With regard to the defense of justification, Iowa Code section 704.3 states:

“A person is justified in the use of reasonable force when the person reasonably

believes that such force is necessary to defend oneself or another from any

imminent use of unlawful force.”9 Self-defense can be established by a showing


9
    The jury instructions for the justification defense stated:
                   Instruction No. 19
                   The defendant claims she acted with justification.
                   A person may use reasonable force to prevent injury to a person,
          including the defendant. The use of this force is known as justification.
                   Reasonable force is only the amount of force a reasonable person
          would find necessary to use under the circumstances to prevent death.
                   A person can use deadly force against another if it is reasonable
          to believe that such force is necessary to avoid injury or risk to one’s life
          or safety or the life or safety of another, or it is reasonable to believe that
          such force is necessary to resist a like force or threat.
                   The State must prove the defendant was not acting with
          justification.
                   Instruction No. 20
                   A person is justified in using reasonable force if she reasonably
          believes the force is necessary to defend herself from any imminent use
          of unlawful force.
                   If the State has proved any one of the following elements, the
          defendant was not justified:
                   1. The defendant started or continued the incident which resulted
          in death.
                   2. An alternative course of action was available to the defendant.
                                         13


that, under the circumstances of the crime, a person of ordinary reason would

believe they were in imminent danger of losing life or suffering great bodily harm.

State v. Badgett, 167 N.W.2d 680, 684 (Iowa 1969). Reasonable force is defined

as:

      [T]hat force and no more which a reasonable person, in like
      circumstances, would judge to be necessary to prevent an injury or
      loss and can include deadly force if it is reasonable to believe that
      such force is necessary to avoid injury or risk to one’s life or safety
      or the life or safety of another, or it is reasonable to believe that
      such force is necessary to resist a like force or threat. Reasonable
      force, including deadly force, may be used even if an alternative
      course of action is available if the alternative entails a risk to life or
      safety, or the life or safety of a third party, or requires one to
      abandon or retreat from one’s dwelling or place of business or
      employment.

Iowa Code § 704.1.

      The burden is on the State to prove beyond a reasonable doubt the lack of

justification; it may do so by establishing one of the following: (1) the defendant

was the provocator in initiating or continuing the difficulty which resulted in the

assault; (2) the defendant did not believe she was in imminent danger of death or

injury and the use of force was not necessary to save her; (3) she did not have

reasonable grounds for such belief; or (4) the force used was unreasonable.

State v. Coffman, 562 N.W.2d 766, 768 (Iowa Ct. App. 1997); see also Iowa

Code § 707.11.

      Given these standards, considering all the evidence but viewing the

evidence in the light most favorable to the State, we conclude sufficient evidence



             3. The defendant did not believe she was in imminent danger of
      death or injury and the use of force was not necessary to save her.
             4. The defendant did not have reasonable grounds for the belief.
             5. The force used by the defendant was unreasonable.
                                         14


supports the guilty verdict. Specifically, a reasonable person could determine

beyond a reasonable doubt that Petithory was not justified in stabbing Chavarria,

as she did not have a reasonable belief that the use of force was necessary to

save herself; furthermore, a reasonable person could conclude the force she

used was unreasonable.

       The evidence supporting Petithory’s second-degree-murder conviction

includes several witnesses testifying the two were fighting prior to the stabbing,

with Petithory telling Chavarria that he had to clean up the mess he created in

the apartment.    Chavarria then called Petithory “puta,” among other Spanish

curse words.     The two were yelling at each other continuously, and Alfaro

testified she retrieved bottles from the kitchen and threw them at Chavarria while

he was in the bedroom. Though testimony indicates there was a shoving match

between Chavarria and Petithory while they were in the bedroom, when the two

were within the witnesses’ lines of sight, Chavarria did not strike Petithory.

       Additionally, Alfaro described Chavarria as a “skinny guy,” smaller than

Petithory. He testified that Chavarria never touched Petithory while they were

circling the apartment, Chavarria did not have a weapon, and Petithory never

asked for help.    Ramirez and Melvin also testified they heard Petithory tell

Chavarria, “[Y]ou don’t know me and you don’t know what I am capable of.”

While they circled the apartment three or four times, Chavarria was telling

Petithory in Spanish to calm down and shut up. Furthermore, Melvin testified he

saw a knife in her hands—though he was not sure it was open—after which he

told her in English to calm down; however, when he turned back around,

Chavarria had been stabbed in the chest.
                                          15


       From this evidence the jury could have determined Petithory formed

malice aforethought, as required for a second-degree murder conviction. See

Reeves, 670 N.W.2d at 207; see also Buenaventura, 660 N.W.2d at 49 (noting

circumstantial evidence is generally used to establish malice aforethought).

Specifically, there was a break in the confrontation after Petithory pulled out her

switchblade knife, which provided enough time to form malice aforethought. See

Reeves, 670 N.W.2d at 207; see also State v. Artzer, 609 N.W.2d 526, 530 (Iowa

2000) (noting “[t]he intent to inflict harm . . . need not exist for any period of time

prior to the act”). Additionally, the fact she used a switchblade knife also creates

a presumption she acted with malice aforethought. See State v. McNamara, 104

N.W.2d 568, 572 (Iowa 1960) (holding that the presumption of malice

aforethought arises from the use of a deadly weapon “unless there is an

explanation to the contrary showing a legal excuse such as self-defense”); see

also Iowa Code § 702.7 (defining dangerous weapon).

       While Petithory points to her claim that Chavarria pushed her while they

were in his bedroom, as well as his outbursts earlier that night towards Alfaro,

Chavarria’s aggression did not continue after the two went into the apartment’s

front room. Moreover, though she claims that Chavarria began walking towards

her just before she took out her knife, the other witnesses did not corroborate

that claim; nor did they corroborate her assertion that she asked for their help

during the incident. At the very least, this requires a credibility finding, which is a

determination that is within the province of the jury. See State v. Dudley, 856

N.W.2d 668, 677 (Iowa 2014). Thus, while there is differing testimony, given that

credibility determinations are within the domain of the jury, we decline to give
                                           16


more weight to Petithory’s testimony and characterization of the events, even

though it would support her defense of justification. We conclude that, viewing

the evidence in the light most favorable to the State, a reasonable fact finder

would conclude the State proved beyond a reasonable doubt Petithory was not

justified; consequently, sufficient evidence supports her second-degree murder

conviction.   See McNamara, 104 N.W.2d at 572 (noting sufficient evidence

supports a conviction for murder in the second degree when malice aforethought

is established and the State proved beyond a reasonable doubt the defendant’s

actions were not justified).

IV. Evidence of U-Visa

       Petithory further claims the district court abused its discretion when it

denied her motion in limine requesting she be able to cross-examine Alfaro about

his attempt to obtain a U-Visa. During the offer of proof, she asserted it was

established he inquired about obtaining a U-Visa to obtain temporary legal status

in connection with his testifying for the prosecution. Therefore, she claims this

issue was germane to his credibility and the district court erred when excluding it

as not relevant.10


10
   She further argues the district court’s refusal to allow her to cross-examine Alfaro on
this issue violated her Sixth Amendment right to confront the witnesses against her;
however, this claim was only briefly mentioned at trial and no specific arguments were
presented to the district court. Consequently, the court based its ruling on the relevancy
of the evidence and not on any constitutional assertion. Therefore, Petithory has failed
to preserve error. See Lamasters v. State, 821 N.W.2d 856, 864 (Iowa 2012).
Nonetheless, Petithory raises this claim in the alternative through the ineffective-
assistance-of-counsel rubric. Assuming counsel should have raised the Confrontation
Clause as a basis to support the request to cross-examine Alfaro about his U-Visa
application, we conclude any error by counsel would not have affected the outcome of
the trial. See Straw, 709 N.W.2d at 133 (noting a defendant has to prove both that
counsel failed to perform an essential duty and that counsel’s failure resulted in
prejudice). Multiple witnesses consistently testified Petithory was the aggressor in the
                                              17


       When making evidentiary rulings, the district court has wide discretion,

and its decisions are reversed only for a demonstrated abuse of discretion. State

v. Sallis, 574 N.W.2d 15, 16 (Iowa 1998). Abuse is found where a district court

exercised its discretion on grounds or for reasons clearly untenable, or to an

extent clearly unreasonable. State v. Bayles, 551 N.W.2d 600, 604 (Iowa 1996).

       We do not agree with Petithory’s assertion the district court abused its

discretion when it denied the admission of evidence regarding Alfaro’s U-Visa.

As the district court stated in its ruling:

       [T]his [issue] is a question of balancing the interests. The court has
       to strike a balance between the defendant’s rights of cross-
       examination, which as counsel indicated, are guaranteed to her
       both by the Iowa and United States Constitutions, but I have to
       balance that also against making sure any evidence that is offered
       or admitted in this case is relevant in that it would prevent any
       unfair prejudice.
               In this case, it is clear from Mr. Alfaro’s statements during
       the Offer of Proof that he had absolutely no knowledge about a U-
       Visa or anything of that nature until subsequent to him giving his
       statement to the police on the day that this homicide occurred. He
       sought, apparently, some counselling or support from Polk County
       Crisis and was informed this process regarding a U-Visa based
       upon his—apparently his status as a witness, although Exhibit A
       indicates his status as a victim. It is clear from the hand-written
       parts of that application, that he is a witness to the homicide.
               ....
               In order for the evidence to be relevant, it has to establish
       that there’s been some prosecutorial inducement for the witness’s
       cooperation. It can’t be evidence that invites the jury to speculate.
       The court certainly understands the defense argument; however,
       based upon the fact that this witness’s statement was given at the
       time of the offense and at least there’s been no indication in this
       record that the witness has waffled, I guess for lack of a better legal
       term, on his testimony—there’s been no indication from either side
       that this witness’s testimony has been anything other than
       consistent from his initial statement and his statement in the


altercation with Chavarria, and thus, we conclude that undermining Alfaro’s credibility by
bringing to the jury’s attention his U-Visa application would not have changed the
outcome of the trial. See id.
                                         18


       deposition and the testimony given on direct examination here
       today, I cannot conclude based upon this record that there has
       been any prosecutorial inducement for the witness’s cooperation.
               Based upon that, this evidence that the court would allow on
       cross-examination, would just, quite frankly, invite the jury to
       speculate and would give an adverse inference regarding the
       witness’s immigration status and the immigration status alone, as
       the court already indicated, I do not find relevant.
               If there had been some prosecutorial inducement or some
       action on the part of the state that even arguably could have
       influenced this witness’s testimony in this proceeding, I think it
       would be admissible, but I don’t think there’s been a showing for
       that in this matter.

       The record supports the court’s summation of the facts, and we conclude

the court did not abuse its discretion. See id.

V. Ineffective-Assistance-of-Counsel Claims

       A defendant may raise an ineffective-assistance claim on direct appeal if

the record is adequate to address the claim. Straw, 709 N.W.2d at 133. We may

either decide the record is adequate and issue a ruling on the merits, or we may

choose to preserve the claim for postconviction proceedings. Id. To succeed on

this claim, the defendant must show, first, that counsel breached an essential

duty and, second, that she was prejudiced by counsel’s failure. Id.

       A. Motion for New Trial

       Petithory first contends trial counsel was ineffective for failing to file a

motion for new trial, asserting the weight of the evidence did not support the

jury’s verdict.   Relying on the same facts set forth in her sufficiency-of-the-

evidence argument, Petithory asserts the greater weight of the evidence did not

support the jury’s finding she acted with malice aforethought. Therefore, she

argues, she should be granted a new trial.
                                           19


       With regard to the standard applied when evaluating motions for new trial,

the district court must determine whether a greater amount of credible evidence

supports one side of an issue more than the other. State v. Ellis, 578 N.W.2d

655, 658 (Iowa 1998). Included in this determination is an assessment of the

credibility of witnesses. Id. However, the motion should only be granted for

cases in which the evidence weighs heavily against the verdict, so as not to

diminish the jury’s role as the principal fact-finder. Id. at 659; see also Reeves,

670 N.W.2d at 203 (noting that when the evidence is such that reasonable minds

could differ, the district court should not disturb the jury’s findings).

       Particularly in light of our recitation of the evidence supporting Petithory’s

conviction, she has failed to establish she was prejudiced by counsel’s failure to

move for new trial.       As noted above, the evidence supporting Petithory’s

conviction includes her use of a deadly weapon—which creates a presumption of

malice aforethought—as well as the witnesses who testified she was the

aggressor at the time she took out her knife, waved it around, and then stabbed

Chavarria. Moreover, the credibility of the witnesses does not weigh heavily

against the guilty verdict. See Ellis, 578 N.W.2d at 659 (stating “we caution trial

courts to exercise this discretion carefully and sparingly when deciding motions

for new trial based on the ground that the verdict of conviction is contrary to the

weight of the evidence”).

       Based upon this analysis, we conclude the district court would not have

granted a motion for new trial, if it had been made by counsel. Given that the

motion would have been denied, trial counsel was not ineffective for failing to so
                                          20

move. See State v. Greene, 592 N.W.2d 24, 29 (Iowa 1999) (holding counsel is

not ineffective for failing to pursue a meritless issue).

       B. Withdrawal of Motion to Suppress

       Petithory’s final argument asserts trial counsel was ineffective when she

withdrew Petithory’s motion to suppress, which had already been granted by the

district court. She claims that, because the court had already ruled the State was

not allowed to enter into evidence the video-recording that revealed statements

she made to Officer Cerne while in his police vehicle, counsel breached an

essential duty by withdrawing the motion to suppress, which resulted in prejudice

to her because the jury was allowed to hear evidence that violated her

constitutional rights. Therefore, she argues, she should be granted a new trial.

       “Ordinarily, ineffective assistance of counsel claims are best resolved by

postconviction proceedings to enable a complete record to be developed and

afford trial counsel an opportunity to respond to the claim.” State v. Truesdell,

679 N.W.2d 611, 616 (Iowa 2004). Upon review of the record before us, the

determination of whether trial counsel was ineffective for withdrawing the motion

to suppress requires a more expansive record than the one present before our

court, which would include trial counsel’s explanations of any strategic reasons

for the action taken.     Therefore, we preserve Petithory’s claim for possible

postconviction-relief proceedings, where a more complete record may be

established. See Straw, 709 N.W.2d at 133.
                                       21


VI. Conclusion

      For these reasons, we affirm Petithory’s conviction for murder in the

second degree, but preserve for possible postconviction-relief proceedings her

claim that counsel was ineffective for withdrawing the motion to suppress.

      AFFIRMED.
