                    IN THE COURT OF APPEALS OF IOWA

                                  No. 16-1067
                            Filed November 8, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

RODOLFO GONZALEZ PENA,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, Kellyann M.

Lekar, Judge.



      Rodolfo Gonzalez Pena appeals from his convictions for first-degree

murder and carrying weapons. AFFIRMED.




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

Assistant Appellate Defender, for appellant.

      Rodolfo Gonzalez Pena, Fort Madison, appellant pro se.

      Thomas J. Miller, Attorney General, and Kevin Cmelik and Linda J. Hines,

Assistant Attorneys General, for appellee.




      Heard by Danilson, C.J., and Doyle and Mullins, JJ.
                                         2


DANILSON, Chief Judge.

      Rodolfo Gonzalez Pena (Gonzalez) appeals from his convictions for first-

degree murder and carrying weapons. Gonzalez asserts the facts do not support

a felony-murder conviction, the court erred in summarily denying his motion for

new trial and instructing the jury on felony murder, and trial counsel was

ineffective in not requesting that the jury determine if Gonzalez committed one or

more criminal acts.    Because we find the two shots fired were sufficiently

independent of each other to support a conviction of felony murder, trial counsel

was not required to seek an additional jury instruction, the court did not err in

denying Gonzalez’s motion for new trial, and there is substantial evidence to

support a finding of malice aforethought, we affirm the convictions.

I. Background Facts & Proceedings.

      At approximately 11:00 p.m. on August 22, 2014, Meighan Middleton was

in a Waterloo bar with her fiancé, Celio Posada. Also in the bar were Jose

Ruben Villalpando, the owner who was bartending that night, and Ruben’s sons,

George and Ivan Villalpando.        Middleton and Posada sat at the bar for

approximately twenty-five minutes before Gonzalez entered and took a seat near

them at the bar. Although Middleton and Posada did not know Gonzalez, the

three engaged in casual conversation. The men bought each other shots of

tequila, and Gonzalez purchased a bottle of Buchanan’s, which was placed in an

ice bucket on the bar near the three customers.

      Around 12:00 a.m., Gonzalez exited the building leaving the bottle on the

bar. Posada followed him carrying the bottle of Buchanan’s. A brief time later,

Middleton picked up Posada’s wallet and cell phone from the bar and followed
                                          3


the men out into the parking lot.       She saw Gonzalez and Posada talking,

approached Posada, and asked him if he and she were leaving. Posada told her

no. Middleton then went back inside to use the restroom.

         When Middleton left the restroom, George Villalpando was running

towards her yelling, “He’s been shot. He shot your husband.” Middleton ran

outside and saw Posada “on the ground, up against” her Jeep. There was blood

on the right side of Posada’s head. Middleton ran to Posada and held his arm

and neck as he took his last breaths.

         At approximately 12:20 a.m. on August 23, Deputy Sheriff Matthew Harris,

was on his regular patrol and driving westbound when he observed a silver truck

driving with no headlights. Deputy Harris stopped the truck, and Gonzalez was

the truck’s driver.     Deputy Harris discovered that Gonzalez’s license was

suspended and placed him under arrest. Deputy Harris performed an inventory

of Gonzalez’s truck—he found a pistol between the driver’s and passenger’s

seats.     Deputy Harris also arrested Gonzalez for carrying weapons and

transported him to the county jail.

         Sometime later, Ruben, George, and Ivan Villalpando and Middleton went

to the police station to give statements. Each was shown a photo array, and

each selected Gonzalez’s photo as the person who had been in the parking lot.

         Two bullet cartridges were found in the bar parking lot. One cartridge was

located six feet from Posada. Another cartridge was located approximately thirty-

five feet from Posada’s body. An open knife was found near Posada’s body.

There was a trail of Posada’s blood between the location of the furthest cartridge

and Posada’s body. A bullet was found in Posada’s left arm. Testing revealed
                                            4


that both this bullet and the cartridges found in the parking lot were fired from the

gun seized from Gonzalez’s vehicle.

         During an interview with Detective Brice Lippert, Gonzalez did not initially

admit any involvement in the shooting at the bar. Gonzalez explained he was at

the bar with a friend, Roberto. Gonzalez denied being in the parking lot at the

same time as Posada. He then stated that Posada grabbed him by the shirt

when they were in the parking lot.          When asked whether Posada had any

weapons on him, Gonzalez was uncertain. He later mentioned being poked by a

knife; however, when questioned about whether he saw a knife, Gonzalez stated

he did not see one. Eventually, Gonzalez asserted that it was Roberto, his twin

brother, who had shot Posada.1 Gonzalez was charged with first-degree murder

and carrying weapons.

         An autopsy revealed that Posada had been shot in the chest and in the

head; both shots would have been fatal. The medical examiner, Dr. Dennis

Klein, concluded the first shot was to Posada’s chest and came from a distance.

Dr. Klein testified that Posada could have been mobile after being shot in the

chest but not after being shot in the head. Further, Dr. Klein stated Posada was

in a seated position when he was shot in the head and this shot was from close

range.

         Michael    Halverson,    a   blood-stain-pattern   analyst   with   the   Iowa

Department of Criminal Investigations, also concluded Posada was in a seated

position by Middleton’s Jeep when he was shot in the head. Victor Murillo, the



1
    There was no evidence a “Roberto” was present or that Gonzalez has a twin.
                                              5


State’s firearm’s expert concurred with Dr. Klein’s conclusion Posada was shot in

the chest from a distance and in the head from a close range.

          At trial, Gonzalez testified that when he exited the bar, Posada walked

outside with him. Gonzalez stated that as he walked toward his parked truck, he

waved his hand and told Posada, “See you later.”                Posada then grabbed

Gonzalez by the shirt in the corner of the parking lot and tried to stab him with a

knife. Gonzalez testified Posada said, “MS-13 and I kill people.”2 Gonzalez

stated he hit Posada’s hand and Posada dropped the knife. Gonzalez then ran

away and heard Posada say to him, “I’m going to kill you.” Gonzalez testified he

was carrying a gun, and as he tried to get to a lighted area of the parking lot he

fired the first shot; he did not know whether it struck Posada. He testified Posada

came in front of him and he fired the second shot. Gonzalez then got in his truck

and drove away.

         During the discussion regarding the jury instructions, Gonzalez objected to

the inclusion of the felony-murder alternative of the first-degree murder

instruction. Specifically, Gonzalez argued:

                  We’re objecting to the inclusion of the felony murder
         instruction which essentially is 4B and anything that’s applicable to
         it following that marshalling instruction. I understand the State’s
         argument will be that they have two separate acts because there is
         the first gunshot and the second gunshot. Presumably, the
         argument is that the first gunshot was an attempted murder or
         willful injury being the predicate felony for—forcible felony, excuse
         me, for the second gunshot which led to the death of Mr. Posada.
                  The first argument is that these are not different acts or
         sufficiently different acts to warrant parsing them out. . . .
                  And that—where that ties into, Your Honor, is it goes back to
         the—the Velez case, as well as the Ross case where we’re kind of
         looking at—in those cases, they’re looking at units of prosecutions,

2
    Testimony at trial indicated MS-13 is the name of a gang.
                                          6


       but you start with the idea that you can say these are separate acts
       and then ultimately convict somebody of separate acts.

The court denied Gonzalez’s request and included the felony-murder alternative

in the instruction.

       Thus, with respect to the charge of first-degree murder, the jury was

instructed that to prove Gonzalez guilty the State was required to prove all of the

following elements beyond a reasonable doubt:

              1. On or about the 23rd day of August, 2014, the defendant
       shot Celio Posada.
              2. Celio Posada died as a result of being shot by the
       Defendant.
              3. The defendant acted with malice aforethought.
              4(a).    The defendant acted             willfully, deliberately,
       premeditatedly and specific intent to kill Celio Posada, or
              4(b). The defendant was participating in the offense of
       attempted murder or willful injury causing serious injury, as defined
       in [other instructions].

       Concerning element 3, the jury was instructed malice aforethought “may,

but is not required to, be inferred from the defendant’s use of a dangerous

weapon.” A firearm is a dangerous weapon.

       The jury was also instructed on Gonzalez’s claim of justification.         The

justification instruction stated:

              A person is justified in using reasonable force if he
       reasonably believes the force is necessary to defend himself 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 injury and death.
              2. An alternative course of action was available to the
       defendant.
              3. The defendant did not believe he was in imminent danger
       of death or injury and the use of force was not necessary to save
       him.
                                            7


                 4. The defendant did not have reasonable grounds for the
       belief.
                 5. The force used by the defendant was unreasonable.

Additional instructions provided guidance on items three through five of the

justification instruction.

       The jury found Gonzalez guilty of first-degree murder.                    Special

interrogatories were submitted along with the verdict form asking if the jury

unanimously found the defendant guilty of premeditated murder or felony murder.

In answering the special interrogatories, the jury unanimously found Gonzalez

not guilty of premeditated murder but unanimously found him guilty of felony

murder.

       Gonzalez filed a motion for new trial, urging the gunshots were not

different acts and the verdict was contrary to the weight of the evidence.3 The

district court denied the new trial motion. The court’s written order states:

              The motion for new trial filed by the defendant raises two
       issues in support of the motion. The first issue is that the court
       erred in submitting the felony murder alternative to the jury as the
       two gunshots involved in this matter were not qualitatively different
       acts. The second issue is that the verdict is contrary to the weight
       of the evidence.
              The court will first address the second issue raised by the
       defendant. The court addressed motions made at the appropriate
       times of the trial by the defendant seeking a directed verdict or
       judgment of acquittal and the record will stand for itself with regard
       to the rulings on those motions for directed verdict and the
       evidence which supported the submission of this matter to the jury
       for determination. The court denies the motion for new trial on the
       basis that the verdict is contrary to the weight of the evidence. The

3
  In a second motion for new trial, Gonzalez argued there was newly-discovered
evidence. However, this motion was withdrawn.
        After the appointment of a new attorney, a third motion for new trial was filed.
Gonzalez argued he was denied a fair trial because he was not provided an interpreter
and trial counsel was ineffective for failing to request an interpreter and for waiving an
opening statement. After a hearing, the district court denied this motion.
                                   8


court finds . . . , upon the entire record, the verdict rendered by the
jury is not contrary to the weight of the evidence, and that, indeed,
the weight of the evidence can be found to support the verdict
rendered by the jury.
        As previously noted, the defendant also alleges that the
court erred in submitting the felony murder alternative instruction to
the jury based on the argument that the two gunshots were not
qualitatively different acts. As indicated, the record will speak for
itself, but the court notes that the evidence in this matter
established that there were two separate gunshots fired in this
matter, that the defendant admitted that he shot the gun twice, that
there is a distance of approximately [thirty] to [forty-five] feet which
is evidenced by a blood trail and other evidence between the
location where the first shot was fired to the location where the
second, fatal shot was fired and the result of the distance between
the shots means that the defendant would have had to follow or
travel with the victim from the place of the first shot to the place of
the second shot. The evidence offered in the case also established
that the first shot either would have been or would likely have been
fatal if the second shot had not occurred prior to the first shot
causing death. The second shot resulted in nearly instantaneous
death to the victim. Both parties relied on State of Iowa v.
Heemstra, 721 N.W.2d 549 (Iowa 2006), and State of Iowa v.
Tribble, 790 N.W.2d 121 (Iowa 2010), in support of their positions in
this matter. The defendant further cites State of Iowa v. Pullman,
[No. 09-1897, 2011 WL 441396 (Iowa Ct. App. Feb. 9, 2011)], and
State of Iowa v. Millbrook, 788 N.W.2d 648 (Iowa 2010).
        A significant record was made at the time of trial and,
specifically, at the time of the record on jury instructions,
concerning the submission of the felony murder alternative to the
jury and the different or separate acts argument concerning the two
gunshots in this case. The court stands on that record and the
rulings made at the time of trial. In addition, the court has reviewed
the cases cited by the parties at the time of the hearing on post-trial
motions.
        Following a review, this court finds that the instruction at
issue accurately states the law and is supported by substantial
evidence. The case law establishes that the rationale of the felony
murder rule is that certain crimes are so inherently dangerous that
proof of participating in these crimes may obviate the need for
showing all of the elements normally required for first degree
murder. In the present case, the predicate crime or underlying
felony that supports the submission of the felony murder instruction
is that of attempted murder. The defendant fired two shots at the
victim. There was substantial evidence submitted to the jury that
the first shot fired by the Defendant at the torso of the victim was an
attempt to murder or bring about the death of the victim. The court
                                         9


      finds that the act of the first shot was not the same act that caused
      the death of the victim in the present case, and therefore, the first
      shot need not be merged into the second shot as directed in
      Heemstra . . . . Heemstra establishes that if a defendant assaults a
      victim twice, first without killing him, and second with fatal results,
      the former could be considered as a predicate felony, but the
      second could not because it would be merged with the charge of
      murder.
              In the present case, the testimony received by the court was
      that the first shot to the victim would have been or most likely would
      have been fatal. However, the events of that gunshot resulting in
      the victim’s death were never allowed to play out due to the actions
      of the defendant in subsequently, and in a separate act, delivering
      a second shot execution style to the victim’s head which resulted in
      the almost immediate death of the victim. This court does not put
      any weight on the fact that the first shot might have been fatal to
      the victim as somehow making the charge of attempted murder
      inaccurate in association with the first shot, nor does it merge the
      first shot into the second shot so long as the two shots were
      qualitatively different acts.

      Gonzalez appeals, contending the district court should not have instructed

the jury on felony murder, the court erred in summarily rejecting his motion for

new trial based on the claim that the verdict was against the weight of the

evidence, and there is insufficient evidence to sustain the felony-murder

conviction.

II. Scope and Standards of Review.

      “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.” State v.

Plain, 898 N.W.2d 801, 816 (Iowa 2017) (quoting Sonnek v. Warren, 522 N.W.2d

45, 47 (Iowa 1994)). “The verb ‘require’ is mandatory and leaves no room for

trial court discretion.” Alcala v. Marriott Int’l, Inc., 880 N.W.2d 699, 707 (Iowa

2016). “[W]e generally review a district court’s refusal to give a requested jury
                                          10


instruction for errors at law; however, if the jury instruction is not required but

discretionary, we review for an abuse of discretion.” Plain, 898 N.W.2d at 811.

       “We review a challenge to the sufficiency of evidence for correction of

errors at law.” State v. Howse, 875 N.W.2d 684, 688 (Iowa 2016).

       We “consider all of the record evidence viewed in the light most
       favorable to the State, including all reasonable inferences that may
       be fairly drawn from the evidence. We will uphold a verdict if
       substantial record evidence supports it.” [State v. Showens, 845
       N.W.2d 436,] 439-40 [(Iowa 2014)] (quoting [State v.] Romer, 832
       N.W.2d [169], 174 [(Iowa 2013)]). Evidence is substantial when “a
       rational trier of fact could conceivably find the defendant guilty
       beyond a reasonable doubt.” State v. Thomas, 561 N.W.2d 37, 39
       (Iowa 1997). If evidence only raises “suspicion, speculation, or
       conjecture,” it is not substantial evidence. Id. (quoting State v.
       Randle, 555 N.W.2d 666, 671 (Iowa 1996)).

Id.

       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.

III. Analysis.

       A. Felony-murder instruction. Gonzalez asserts the first-degree murder

marshaling instruction was legally flawed in two respects. First, under principles

stated in Heemstra, 721 N.W.2d at 558, the willful injury or the attempted murder

against Posada should not have been submitted as a predicate felony for felony

murder because the facts do not support a finding Gonzalez committed separate
                                         11


acts for purposes of felony murder. And second, the jury should have been

required to make the determination whether Gonzalez committed one act of

shooting or multiple acts of shooting, and trial counsel was ineffective in failing to

request an instruction requiring the jury make those findings. Neither argument

is convincing here.

       1. Independent acts support the felony-murder instruction. In Heemstra,

our supreme court held willful injury cannot serve as a predicate felony under the

felony-murder statute when “the act causing willful injury is the same act that

causes the victim’s death.” 721 N.W.2d at 558. Instead, the act intended to

cause serious injury used to support the predicate willful-injury offense must be

separate from the act that kills the other person while the person participates in

the predicate willful-injury crime. Id. If the act or acts intended to cause serious

injury were the same act or acts that caused death, the act or acts merge into the

murder and cannot serve as a predicate felony. Id.

       Gonzalez attempts to characterize the facts here as “shots fired in

succession” and thus not independently actionable.          In State v. Ross, 845

N.W.2d 692, 702 (Iowa 2014), our supreme court addressed the question of

whether substantial evidence supported the jury’s verdict that Ross’s actions

constituted five counts of intimidation with a dangerous weapon with intent where

Ross fired a weapon into a group of five people. The court explained the factors

available to “aid the fact finder in determining if the defendant’s assaultive

conduct is one continuous act or a series of separate and distinct acts. Ross,

845 N.W.2d at 705.
                                          12


       These factors are (1) the time interval occurring between the
       successive actions of the defendant, (2) the place of the actions, (3)
       the identity of the victims, (4) the existence of an intervening act, (5)
       the similarity of defendant’s actions, and (6) defendant’s intent at
       the time of his actions.

Id. In applying the factors, the court concluded there was sufficient evidence for

finding “only two separate and distinct acts.” Id. The court noted the record

indicated a shot or shots fired, a pause, and then another round of shots fired.

Id. The court also observed one victim crossed the street after the first serious of

shots, which “was an intervening act causing Ross to start firing his gun again.”

Id. at 706.

       In the case before us, the evidence presented was that Posada was shot

in the chest from a range of four to eight feet. This wound might have proved to

be fatal. Yet, Posada traveled some thirty to forty-five feet, leaving a blood trail

as he went. Posada was then shot from close range in the head. Posada was

near the ground at the time, and the bullet entered his right temple, traveled

down through his brain, neck, and left arm, lodging in his left triceps. This injury

was almost immediately fatal. We can infer from the evidence that Gonzalez

also traveled between shots. Although Posada was the victim of both shots and

the time interval was minimal, there was some intervening time, as well as a

change in locations by both Posada and Gonzalez to the other side of the parked

vehicle. As in Ross, we find the record supports two separate and distinct acts.4


4
  Gonzalez relies in part on Williams v. State, 90 So. 3d 931, 935 (Fla. Dist. Ct. App.
2012), a case cited in Ross, 845 N.W.2d at 704. The Ross court noted the Florida court
in Williams determined shots fired in succession constituted a single crime, and
observed:
        there was no intervening act between gunshots, the location of the
        shooting was the same, and the evidence did not show the defendant
        formed a new intent with each shot.
                                         13

       In Heemstra, the supreme court stated a felonious assault of willful injury

could serve as the predicate offense for felony murder if, for instance, “the

defendant assaulted the victim twice, first without killing him and second with

fatal results.” 721 N.W.2d at 557. The facts before us fit within that description—

Gonzalez shot Posada twice, first without killing him and second with fatal

results.

       The supreme court restated its Heemstra holding,

       [W]here the act causing willful injury is the same act that caused
       the victim’s death, the former merges with the murder and cannot
       serve as a predicate felony for felony-murder purposes. This is not
       to say, however, that willful injury could never serve as the
       predicate felony for felony-murder purposes.            We narrowed
       Heemstra’s scope by noting, for example, that where “a defendant
       assaulted the victim twice, first without killing him and second with
       fatal results,” only the second act would be merged with the murder
       and that the first act could be considered as a predicate felony.
       Thus, the merger rule announced in Heemstra applied only in
       cases involving a single felonious assault on the victim which
       results in the victim’s death.

Goosman v. State, 764 N.W.2d 539, 542 (Iowa 2009) (internal citations omitted).

       In Tribble, the court again considered a felony-murder conviction based on

the felonious assault of willful injury. 790 N.W.2d at 123-24. The court upheld

the conviction there because substantial evidence supported a jury finding that

head trauma and asphyxia were caused by separate acts, either of which could

have been the factual cause of the victim’s death. Id. at 129. The Tribble court

explained:

       Our law recognizes two separate acts can join to cause death, but
       the result does not alter criminal responsibility for an act.
       Causation only implicates the merger doctrine when the act
       supporting the commission of the predicate felony is a factual

Ross, 845 N.W.2d at 704. However, our facts are distinguishable.
                                               14


          cause of death and the second act is not. If the act giving rise to
          the underlying forcible felony is the sole factual cause of death,
          then any subsequent separate act of violence not also a factual
          cause of death plays no role in the felony-murder analysis.
                 Accordingly, the law governing multiple factual causation is
          consistent with the purposes of the felony-murder doctrine and the
          merger doctrine. Merger seeks to prevent a felonious act alone
          from becoming first-degree murder and leaves the felony-murder
          doctrine available to elevate an independent homicidal act into first-
          degree murder without proof of the usual required mens rea for the
          purpose of deterring certain felonious conduct. As long as an
          independent act is a factual cause of death, the doctrines work to
          achieve their desired purposes.
                 In this case, substantial evidence supported a finding that an
          act of strangulation, choking, or drowning was a factual cause of
          Tracy’s death by asphyxia. Substantial evidence also supported a
          finding of the commission of the forcible felony of willful injury
          causing serious injury based on a separate earlier act of blunt-force
          trauma to Tracy’s head. The facts further supported a finding that
          the head trauma and asphyxia were inflicted by separate acts, with
          the head trauma occurring first followed by a separate act resulting
          in the asphyxia. Thus, separate, independent acts were identified
          by the evidence. Moreover, the evidence showed the act causing
          asphyxia was a factual cause of death. In fact, Tribble does not
          contest this evidence. Consequently, it is not important under the
          felony-murder analysis whether or not the separate earlier acts of
          blunt-force trauma were also a factual cause of death. If the acts of
          blunt-force trauma were also a factual cause of death, felony
          murder applies in this case because a separate act of asphyxia was
          also a factual cause. If the acts of blunt-force trauma were not a
          factual cause of death, felony murder likewise applies because the
          blunt-force trauma would satisfy the willful-injury elements of acts
          intended to cause serious injury and causing serious injury,
          followed by a separate act causing death by asphyxia.

Id.

          Gonzalez contends the facts of this case are more akin to State v.

Pullman,5 where this court concluded “the three separate shots were not



5
    We explained the
         district court, relying on the evidence Eddings had been shot three times,
         determined each shot was a separate assault. Therefore, one or two
         shots could form the basis for a willful injury conviction or assault resulting
         in serious injury conviction and the other shot the basis for a felony-
                                          15


‘sufficiently independent’ of each other to support a conviction of felony murder,

. . . and do not ‘separately support’ both an underlying forcible felony and acts

resulting in the killing.” 2011 WL 441396, at *6 (citation omitted). In the present

case, however, the two shots were sufficiently independent of each other. As

noted by the trial court,

       [Gonzalez] first shot the victim in the torso. The evidence from
       testimony and at the scene establishes that the victim traveled
       approximately [thirty] to [forty-five] feet from the place of the first
       shot to the place of the second shot and that the victim was either
       slumped to the ground or in the process of slumping to the ground
       at or about the time of the second shot. Time would have elapsed
       during which the victim, having already been shot in the torso with a
       potentially-fatal shot, traveled the distance between the two shots
       and to slump into the position where the second shot was delivered
       at relatively close range to his head. [Gonzalez] had the time to
       take the first shot, follow or track the victim to the site of the second
       shot, and to take the second shot. There was a break in the
       shooting. There was a break in the position of the parties. There
       was a break in the dynamics between the parties because the
       victim had already been shot and injured.

       2. Counsel was not ineffective in failing to request that the jury make a

finding on the issue of whether there were independent acts. Gonzalez next

contends his trial counsel was constitutionally deficient in failing to request that

the jury make a finding on “whether Gonzalez committed on[e] act of shooting or

multiple acts of shooting.” See State v. Love, 858 N.W.2d 721, 727 (Iowa 2015)

(Mansfield, J., specially concurring) (“And if the court was uncertain whether

more than one potential criminal act was involved, it could ask the jury to make a



      murder conviction. [Pullman] argues there was only one assault—that the
      shots all were fired in a single burst with no pause. He further argues the
      medical examiner testified Eddings died of multiple gunshot wounds and
      could not identify any single shot as the cause of death.
2011 WL 441396, at *3.
                                       16


finding on this issue, based upon the legislature’s definition of the offense and

using the standards we have discussed in [State v. Velez, 829 N.W.2d 572, 579-

84 (Iowa 2013)], and Ross, 845 N.W.2d at 698-700.”).

      In order to succeed on a claim of ineffective assistance of counsel,

Gonzalez must establish by a preponderance of the evidence both that his trial

counsel failed to perform an essential duty and prejudice resulted.      State v.

Morgan, 877 N.W.2d 133, 136 (Iowa Ct. App. 2016). The claim fails if either

prong is not proved. Id.

      Gonzalez cannot prove prejudice here because the district court could,

and did, conclude as a matter of law that there was more than one potential

criminal act involved. See Love, 858 N.W.2d at 727 n.1 (Mansfield, J., specially

concurring) (“I believe in most cases the determination whether more than one

potential criminal act was involved could be made as a matter of law. But in a

case where it is possible to divide up the conduct into discrete segments in the

jury instructions, yet it is debatable whether each segment can be treated as a

separate criminal act, and the jury was not instructed to make appropriate

findings despite the defendant’s request, then a retrial would be necessary.”). As

observed by the district court, there was sufficient time, distance, and space

between the gunshots for a determination as a matter of law that each gunshot

was a separate criminal act.

      3. Additional pro se ineffectiveness claim.       One of the ineffective-

assistance-of-counsel claims raised in Gonzalez’s pro se brief states in part that

even if there were two acts, both wounds were fatal and, therefore, the first shot

cannot serve as the basis for attempted murder or willful injury because of the
                                         17

merger doctrine established in Heemstra. Gonzalez contends this is supported

by the fact that “it was never determined at trial which wound caused the death of

Posada.” We disagree. We acknowledge the medical examiner first testified that

the cause of death was multiple gunshot wounds. But later the medical examiner

testified,

               Q. Now, Doctor, let’s switch to the gunshot wound to the
        head. Was that fatal? A. Yes.
               Q. How quickly would that have been fatal? A. That would
        be certainly more quickly than the gunshot wound to the chest, and
        could be on the order of minutes.

        Clearly, this testimony reflects that the second shot, the shot to the head,

is what caused or at least accelerated Posada’s death.           There was other

evidence Posada was still alive after the first gunshot. Under these facts we find

no expansion of the felony-murder rule or violation of the merger doctrine

announced in Heemstra and as further elaborated upon in Tribble.

        With regard to Gonzalez’s contention that he was able to be convicted of

felony murder by simply pointing a firearm or displaying a dangerous weapon, we

disagree.    Our review of the instructions required the State to prove either

attempted murder or willful injury. And concerning Gonzalez’s other contentions

that the jury instructions either were misstatements of the law or not supported by

the law or facts, we find them without merit.

        B. Denial of motion for new trial. Gonzalez contends the court erred in

summarily rejecting his motion for new trial based on his claim that the verdict

was against the weight of the evidence. Gonzalez notes that in its order denying

his motion, the district court did not specifically state that it had weighed the

evidence and made its own credibility determinations. Citing State v. Maxwell,
                                        18


743 N.W.2d 185 (Iowa 2008), Gonzalez acknowledges that the failure of the

court to state its reasons for finding the verdict was not contrary to the evidence

does not require reversal of an order denying a motion for new trial. However, he

requests a change in case law so that the failure to state reasons for a denial of a

motion for new trial based upon the weight of the evidence is reversible error and

requires remand for reconsideration of a motion for new trial.

       First, this court is not at liberty to overrule supreme court precedent. See

State v. Beck, 854 N.W.2d 56, 64 (Iowa 2014). Moreover, nothing in Iowa Rule

of Criminal Procedure 2.24(2)(b) requires the district court to provide its reasons

for denying a motion for new trial. In any event, we conclude the trial court did

not err in concluding the verdict was not contrary to the weight of the evidence.

       C. Sufficiency of the evidence.        Finally, Gonzalez asserts there is

insufficient evidence that he acted with malice aforethought because he was

justified in his actions.   The jury was instructed that the State must prove

Gonzalez was not justified in using force. There was substantial evidence from

which the jury could find several of the factors that would negate the use of

force—any one of which was sufficient to reject the justification claim.        For

instance, the jury could have found Gonzalez “continued the incident which

resulted in injury and death” when he followed the shot and bleeding Posada and

shot him again in the head at close range, or that “[a]n alternative course of

action was available to” Gonzalez. He testified he had knocked the knife from

Posada’s hand and was running away before he fired the first shot.
                                       19


IV. Conclusion.

      We find the two shots fired were sufficiently independent of each other to

support a conviction of felony murder and trial counsel was not required to seek

an additional jury instruction. The court did not err in denying Gonzalez’s motion

for new trial, and there is substantial evidence to support a finding of malice

aforethought. We, therefore, affirm the convictions.

      AFFIRMED.
