                     IN THE COURT OF APPEALS OF IOWA

                                    No. 13-0346
                              Filed October 29, 2014

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ZYRIAH SCHLITTER,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Linn County, Marsha M.

Beckelman, Judge.



      Zyriah Schlitter appeals his convictions, following the death of his

daughter,   for   child   endangerment   resulting    in   death   and   involuntary

manslaughter by public offense. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Shellie L. Knipfer, Assistant

Appellate Defender, for appellant.

      Zyriah Schlitter, Newton, appellant pro se.

      Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney

General, Jerry Vander Sanden, County Attorney, and Nicholas Maybanks and

Lisa Epp, Assistant County Attorneys, for appellee.



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



BOWER, J.

        Following a jury trial on charges of first-degree murder and child

endangerment resulting in death, Zyriah Schlitter was convicted of involuntary

manslaughter by public offense and child endangerment resulting in death. On

appeal, Schlitter claims the district court erred in declining to suppress

statements he made in violation of his Miranda rights. He alternatively claims the

statements were involuntary because his “will was overborne.” Finally, Schlitter

contends his trial counsel rendered ineffective assistance by failing to (1) move

for a judgment of acquittal on lesser offenses, (2) timely object to prosecutorial

misconduct, and (3) investigate.1 We affirm.

I. Background Facts and Proceedings

        We state “the facts in the light most favorable to the verdict.” State v.

Neiderbach, 837 N.W.2d 180, 187 (Iowa 2013). Until the last month of her short

life when her father had temporary custody, K.S. was a happy, healthy baby.

After her birth in September 2008, she lived with her parents, Schlitter and

Nicole, at the home of Jeri and John King, Nicole’s mother and stepfather.

Nicole and Jeri cared for K.S. most of the time, and Schlitter worked. K.S. slept

through the night, ate well, was starting to talk, and loved to dance. Although she



1
  Schlitter filed a separate pro se brief claiming (1) trial counsel was ineffective by failing
to object to the jury instructions not including (a) a definition of “custody or control” that
included the possibility of Amy Parmer having such custody and control, (b) a definition
of causation, (c) a definition of death in light of the withdrawal of artificial life support, and
(d) an instruction on aiding and abetting; (2) the district court lacked statutory authority to
submit involuntary manslaughter by public offense; and (3) the jury rendered
inconsistent verdicts and the court incorrectly merged the offenses. After considering
these arguments in light of the entire record, we conclude Schlitter’s pro se claims are
either without merit or were not preserved for our review.
                                            3



had started to walk when she was only eight or nine months old, she sustained

only minor bumps or bruises on her shins from climbing on furniture.

       In the beginning of November 2009, Nicole and Schlitter ended their

relationship.   Schlitter eventually moved out to live with his grandparents,

Donnabelle and Herbert Hartz. Thereafter, Schlitter visited K.S. on Wednesdays

and cared for her on alternate weekends, which were spent either at his

grandparents’ house in Cedar Rapids or at the Hiawatha, Iowa apartment of his

new girlfriend, Amy Parmer. Parmer had two children, a six-year-old son and a

two-year old daughter.

       In February 2010, Nicole’s mother and stepfather divorced, forcing Nicole

to make different living arrangements. Schlitter agreed to take care of K.S. for

four weeks while Nicole made the arrangements. Schlitter and Nicole signed a

temporary custody agreement.

       A. Schlitter Physical Care

       K.S. moved in with Schlitter on February 22, 2010. Nicole tried to visit

three times a week but was not always able to do so.             On March 1, 2010,

Schlitter took K.S. to a clinic for a well-child check—she was in very good health.

       K.S. started attending daycare on March 2 and adjusted well during the

first week—she played with the other children and ate and napped well. Schlitter

dropped her off and picked her up. Andrea McAleer and Keri Sotelo were the

daycare staffers in K.S.’s room. Parmer’s child at the daycare was not in K.S.’s

room. During the next two weeks, K.S. went from being a healthy toddler to a

critically ill child with lethal injuries from physical abuse.
                                            4



       March 6-7 Weekend. Schlitter and K.S. spent the weekend of March 6

and 7 at Parmer’s apartment. Parmer took care of K.S. on Sunday evening while

Schlitter attended a weekly financial class at church from 6:00 to 8:00 p.m.

       Monday, March 8.         McAleer arrived at the preschool, and when K.S.

turned around, she immediately noticed bruising.2 After morning snack, McAleer

was cleaning K.S.’s face with a wipe and discovered makeup on the wipe.3

Sotelo testified K.S.’s facial injuries were more apparent after her face was

cleaned. K.S. had a bruise on her forehead, a bruise and redness around her

eye, marks on the side of her chin, chapped lips, and a cut on her lip. McAleer

checked under K.S.’s clothes for other injuries but found none.                 She took

photographs of K.S.’s face.

       That same day Parmer came to K.S.’s room and asked McAleer how K.S.

was doing, calling her a “little brat.” Parmer told McAleer that she, Parmer, had

to be the disciplinarian.4 When McAleer asked how K.S. got her bruises, Parmer

stated the bruised eye occurred when K.S. had tripped and fallen, hitting a

bookshelf or table. Parmer stated K.S.’s forehead bruise occurred when a Pack

‘n Play fell out of a closet. Although the staffers went to daycare director Ciarra

McMurrin and expressed concern, McMurrin thought Parmer’s explanations

seemed feasible and elected not to contact the Iowa Department of Human




2
  Sotelo was there when Schlitter dropped off K.S., and she initially did not notice K.S.’s
injuries because she was tending to other children. By the time she recognized K.S. had
a bruised face, Schlitter had left.
3
  The staffers kept the wipe, and it was eventually turned over to investigators.
4
  Up to that point in time, McAleer did not know of any connection between Schlitter and
Parmer.
                                           5



Services (DHS).5 K.S. developed a fever during the afternoon and did not attend

daycare the rest of the week.

       Tuesday, March 9. Schlitter took K.S. to the Hiawatha pediatric clinic for

the first time.   Schlitter told nurse practitioner Keeli Irwin that K.S was not

sleeping as well, had a decreased appetite, and had a fever. Irwin prescribed

medicine for pink eye. Irwin testified she saw “a golf ball-sized lesion [on K.S.’s

forehead] that stuck out and it was bruised around that.”              Also, “it was a

significant enough bruise that I asked about it, and [Schlitter] said that she had

recently fallen into, I think a coffee table, but it was a piece of furniture.” Schlitter

did not seem concerned about the bruise, and he did not mention a falling Pack

‘n Play.6 At trial, Schlitter testified Irwin never asked him about the bruise during

this appointment.

       March 10-11. The next two days, March 10 and March 11, Schlitter again

called for medical advice about K.S.’s continuing fever, congestion, and

decreased appetite. On Thursday, March 11, he was advised to take K.S. to the

emergency room if she started to dehydrate or had trouble breathing. Otherwise,

he was to bring K.S. to the clinic to see Irwin on March 12 as previously

scheduled.


5
  At trial, McAleer likewise testified Parmer’s March 8 explanation “seemed like
something that would happen.” McMurrin testified that if she had known about the wipe
containing what looked like makeup, she would have made a different decision.
6
  On cross-examination, Irwin explained why she, as a mandatory reporter, had not
contacted the DHS:
       [A]lmost every single fifteen-to-eighteen-month-old that we see in our
       office has bruises. They fall into things. That’s very common. They are
       not sturdy creatures. And so I did ask about the bruise because it was a
       significant bruise. He gave a good story. I did not see any other red flags
       as far as bruising on the rest of her body.
                                            6



       Friday, March 12. At the clinic, Schlitter told Irwin that K.S. had vomited

on him once the previous day and was fussy, not sleeping well, not eating well,7

and tugging at her ears. Irwin found K.S.’s eyes were better but both of her ears

were infected. Irwin prescribed an antibiotic and instructed Schlitter to return if

the symptoms did not improve in two to three days or if K.S. has worsening fever

or ear pain. Irwin observed K.S. still had a bruise on her forehead and it had not

“changed much, maybe a little lighter in color.”

       March 13-14 Weekend. Schlitter and K.S. spent the weekend of March

13 and 14 with Parmer. K.S.’s fever broke on March 13. Parmer again watched

K.S. while Schlitter attended his Sunday financial class.

       Monday, March 15.          K.S. returned to daycare and attended daycare

through Friday, March 19, 2010. When Schlitter and K.S. arrived at the daycare,

Sotelo saw more bruising on K.S.’s face, her eyes, and her chin. Sotelo asked

Schlitter about the new bruises. In a monotone he replied, K.S. “likes to beat

herself up” and “turned around and left.”          K.S.’s additional injuries included

another bruise on top of the previous bruise on her forehead, black eyes, and

bruising   on   both    cheeks.       McAleer     described     her   appearance—“just

heartbreaking.”     McAleer took photographs of K.S. and checked under her

clothes. There was no additional bruising. McAleer and Sotelo notified a director



7
  Because Schlitter had told Irwin that K.S. was not eating well, Irwin talked to him about
K.S. needing “to have a wet diaper or go to the bathroom at least once every eight
hours. When [she cried,] there needs to be tears.” Schlitter’s step-grandfather testified
to babysitting K.S. the week she was sick. The “whole day,” K.S. “had no soiled diapers
or no wet diapers.” When Schlitter came home, the step-grandfather told him, “This little
girl is going to get dehydrated. You are going to have to go intravenous.” Schlitter then
bought an eye dropper and tried to use it to give her water. K.S. resisted.
                                          7



about K.S.'s injuries, and the DHS was called. During the day, staffers observed

K.S. was not eating and seemed very lethargic. K.S. took long naps. Staffers

had to wake her up at the end of naptime. K.S. would not play or interact with

any of the other children, and she did not talk.

       Tuesday, March 16. In the morning, DHS child abuse investigator Sarah

Bliss observed K.S. at the daycare. Bliss observed K.S. “did have a bruise on

her forehead and on her cheek.” Bliss took photographs of K.S. Later, Bliss met

with Schlitter. He stated K.S. was grouchier lately and described the recent eye

and ear infections.    Schlitter also told Bliss that K.S. “listened better for his

girlfriend, Amy Parmer” and was better behaved at Parmer’s apartment. Schlitter

told Bliss K.S. had hit her head on a desk at Parmer’s apartment the weekend of

March 13-14. On the weekend of March 6-7, a Pack ’n Play had fallen out of a

closet on her. He told Bliss he had not seen the Pack ’n Play fall on her and he

had gone in afterwards.      When Bliss asked Schlitter about his statement to

daycare staffers that K.S. liked to beat herself up, Schlitter denied making the

statement. During a later interview with investigators, Schlitter insisted he did not

notice the bruises on K.S.’s cheeks until Bliss pointed them out to him.8

       Wednesday, March 17. Schlitter brought K.S. over to Nicole’s parent’s

house for a visit.    Nicole described the evening: “She was not happy.         She

constantly cried and she was ripping her hair out on the left side of her head and

she wouldn’t want to do anything with me.” Nicole had never seen her act that




8
  After the interview, Bliss recommended “an early access referral” to check K.S.’s
development as well as therapy.
                                         8



way before. She told Schlitter to take her home and put her to bed because she

was sick. Nicole did not recall seeing any injuries on K.S. that day.

       Thursday March 18. From Thursday March 18 to Sunday March 21,

2010, Schlitter’s grandparents were out of town and not available to help Schlitter

with K.S.’s care. On March 18, Nicole visited K.S. at Schlitter’s grandparents’

home and saw bruises on K.S.’s face that she had not seen before. Schlitter

minimized the bruises, telling Nicole “she just probably bumped into something.”

       Also on March 18, Schlitter called the pediatric clinic to report K.S. had

been very sleepy during the day, was going to bed earlier and sleeping in later,

and still had a runny nose and cough. The nurse advised Schlitter to have K.S.

finish the antibiotic and to call back if the symptoms continued or if he had other

questions. At trial and during an interview, Schlitter admitted he did not tell the

nurse all of K.S.’s symptoms—she was pulling out her hair, waking up with

nightmares at daycare, and not eating well. Schlitter did not call the clinic in the

following days.

       Friday, March 19.       Schlitter failed to take K.S. to her follow-up

appointment for more shots. After daycare, Nicole took K.S. to visit Nicole’s aunt

but was forced to end the visit early because K.S. was screaming and pulling her

hair out. Nicole saw “just the same bruises” on K.S.’s forehead and cheeks.

       Saturday, March 20. K.S. and Schlitter spent the day and early evening

in Cedar Rapids. That morning, Parmer sent a text message to Eric Olmstead,

another man with whom she was having an intimate relationship: “And [I] love

kids but [Schlitter’s] daughter is already ending us.” Parmer continued, K.S. “is
                                          9



the most obnoxious kid in the world that gets babied when told no and has no

discipline.” Parmer also texted she would try to find a babysitter so she could go

out with Olmstead. Olmstead testified he and Parmer would be sexually intimate

once or twice a month as the circumstances allowed.

       Despite K.S. sustaining injuries at Parmer’s apartment on both of the

previous weekends, Schlitter again took K.S. to Parmer’s around 8:00 p.m. on

Saturday evening.    While he was putting her to bed after they arrived, she

vomited on him.

       Sunday, March 21.      Schlitter became frustrated with K.S. and had to

leave the room at lunch time. Schlitter then put K.S. down for her nap, and she

woke up around 3:30 p.m. At 5:15 p.m., he left for his class and Parmer cared

for K.S.

       Two and one-half hours later, around 7:44 p.m., the Hiawatha Fire

Department received a call for assistance from Parmer. When Fire Chief Michael

Nesslage arrived, he found Parmer outside, crying and upset.            Nesslage

observed K.S. lying face up in a Pack ‘n Play with her left arm posturing and her

right side flaccid—“basically unresponsive” and not breathing adequately.

Nesslage asked Parmer if K.S. had fallen and Parmer denied any fall. Nesslage

carried K.S. to the ambulance where she was immediately ventilated for the ride

to St. Luke’s Hospital in Cedar Rapids.

       At about 7:45 p.m., Parmer called Schlitter’s cell phone.        Hiawatha

responder Wayne Compton talked with Schlitter.        Compton testified he told

Schlitter that K.S. was found unresponsive and they are working on her “right
                                         10



now in the ambulance waiting to go to the hospital.” Compton testified Schlitter

did not ask him what “had happened” to K.S., “just what was going on.” Schlitter

drove to St. Luke’s.

       B. St. Luke’s Hospital

       Dr. Julie Beard treated K.S in the emergency room and described K.S.’s

condition upon arrival: “She was dying, very sick, and critically ill.” K.S. “was

bleeding in her eyes” from a “serious injury.” Dr. Beard arranged for K.S. to be

transferred by air ambulance to the University of Iowa Hospitals and Clinics

(UIHC), and K.S. was at St. Luke’s for less than an hour.            When Nicole

approached Parmer and asked what she had done, Schlitter stepped in and said,

“She didn’t do anything.”    Dr. Beard asked Schlitter and Parmer about the

bruising, and they told her K.S. “gets in to everything” and is “klutzy.” Schlitter

stated he had been “meaning to follow up with her doctor regarding her easy

bruising,” but had not.

       Nurse Nichole Morgan treated K.S. and observed Schlitter walk towards

K.S.’s bed and tell K.S., “I’m sorry.”    Morgan documented Schlitter had “no

emotional reaction to seeing” K.S.     K.S.’s chart was marked suspected child

abuse, and the DHS was called.

       C. UIHC

       March 21, 2010. Dr. Charles Jennissen, a pediatric emergency medicine

physician, described K.S.’s condition upon arrival—one pupil was larger than the

other and neither pupil was responsive to light, showing K.S.’s “brain might be

herniating.” Dr. Jennissen observed K.S. had multiple bruises and “when you
                                           11



see different bruises, different colors, you . . . know that they came from different

times.” Dr. Jennissen “particularly noticed” a bruise “that was striking to me was

the one that was kind of around her jaw line, kind of underneath her jaw which

didn’t really appear typical for accidental injury.” He also noted K.S. had “some

bruises on her upper arms that looked suspicious possibly for grab marks, and

those are fairly typical . . . abusive related bruises.”

       Dr. Jennissen met with the family and told them K.S.’s injuries “were

sustained in a non-accidental way” and her condition was very grave. From the

paramedics’ report, Dr. Jennissen knew K.S. had been in Parmer’s care, and he

“wanted to know [what] time [Schlitter] was around and what [K.S.] was like at

that time” to find out when the non-accidental trauma occurred. When Schlitter

told Dr. Jennissen he had last seen K.S. at 5:15 p.m., Dr. Jennissen “wanted to

see if she was normal at that point” and asked Schlitter what K.S. “looked like

when he left and how she was acting.” Dr. Jennissen testified that despite asking

Schlitter that specific question three times, Schlitter “never really did say what

she was acting like and what she looked like right before he left at 5:15,” which

Dr. Jennissen thought was “odd.” Dr. Jennissen explained to the jury that a

typical response would be, “Hey, I don’t know what happened. I mean, I left.

She was acting fine.” Another typical response would be, “She was not acting

herself. She was laying on the couch all day. I was really very concerned.”

Schlitter avoided the doctor’s multiple questions and instead repeatedly talked

about the past week. Schlitter also failed to mention he got frustrated with her at

lunch time before he put her down for a nap at noon.
                                           12



       Dr. Jennissen testified the timing of K.S.’s injury “is always a difficult thing

to know” but it “seemed like” it happened “that day. Exactly when . . . [is] hard to

know.” Finally, Dr. Jennissen testified:

              Q. . . . [I]f you were told that [K.S.], towards the end of this
       week was not eating, not playing, sleeping in late, going to bed
       early, pulling her hair, reacting psychologically to people around her
       [and were also told] there was only one call made to medical
       authorities on [March 18], would that surprise you? A. Well, if
       she’s having symptoms like that . . . most parents would be kind of
       concerned and would seek attention more often.

       Dr. Susannah Q. Longmuir is a pediatric ophthalmologist at UIHC, and

she examined K.S.’s eyes.       Her examination revealed K.S. had folds in the

retina—“highly suggestive to some sort of crush injury or shaking violently.”

       Dr. Alexandra Volk, a pediatric intensive care physician, treated K.S. She

testified to her observations after K.S. had undergone a CT scan of her head:

               I was very worried about how much [brain] edema she
       had . . . swelling of brain cells, especially on the left side and that
       she was in herniation meaning her brain had swelled to the point
       that it was cutting off blood flow. So she was extremely near death,
       and I also knew that there was blood outside the brain in a place
       where it’s not supposed to be—a subdural hematoma.
               There were different densities of blood . . . and that indicates
       different ages of blood in the brain. So that’s very worrisome to me
       for multiple repeated episodes of abusive trauma.

       Dr. Volk “specifically asked” Schlitter if there had been any trauma.

Schlitter responded that K.S. was “klutzy” but there was no specific history of

trauma. Dr. Volk observed Nicole began making accusations against Parmer

while Schlitter defended her by saying, “You weren’t there. You don’t know what

happened.” Dr. Volk brought in the neurosurgeons. Later, Dr. Volk learned K.S.

had been pulling out her hair prior to March 21. She then opined: “[T]he fact K.S.
                                         13



was pulling her hair out was a sign of how much stress she was under for days.

That’s what you do when you [are] being tortured.”

       The DHS child abuse investigator Roberta Hinman arrived at the UIHC.

When Hinman introduced herself, Schlitter was teary-eyed and she waited “a

good hour or more” for Schlitter to calm down before she could talk to him.

Hinman and City of Hiawatha Investigator Rodney Fiser met with Schlitter and

Nicole in a hospital waiting room. Hinman observed Schlitter “laid his head down

sobbing” a few times during the conversation. Schlitter stated Amy was a good

parent.

       Fiser testified Schlitter stated K.S.’s fever broke Saturday, March 13 after

she was prescribed Amoxicillin, and she was “good to go.” When Fiser asked

how K.S. was today (Sunday March 21), at first Schlitter said she was good.

Later, Schlitter said K.S. had been moody since she had been sick, she had a

personality change, and she had been clingy. Schlitter also stated after her nap

on Saturday, March 20, she started to act like her same old self.           Schlitter

described the Sunday activities. K.S. sat on the couch and watched television

with him, and they tried to get her to play. K.S. had to be right next to him the

whole day and she cried a lot. He put K.S. down for her nap at noon.

       Schlitter himself brought up the bruise on K.S.’s forehead and initially said

he did not remember how she got it. Later, he pointed out that K.S.’s head was

the same height as the kitchen and computer tables. Fiser testified when he

asked Schlitter about the older bruise that was still healing, Schlitter talked about

the Pack ’n Play incident.
                                          14



       Monday, March 22. In the early morning hours, Dr. Gregory W. Albert

operated on K.S. and removed her left skull cap in an effort at decompression.

When K.S. remained very ill, the surgeons then drilled a small hole in her skull

and placed an intracranial pressure monitor to display her brain pressure.

       Fiser and Hinman met with Dr. Volk, Dr. Albert, Schlitter, Nicole, and their

immediate families. Fiser and Hinman learned K.S.’s bruising was extensive and

also learned K.S. had serious brain injuries.          Afterwards, Fiser requested

assistance from the Iowa Department of Criminal Investigation (DCI) and met

with DCI Agent Darrell Simmons.

       When K.S. continued to have “severely elevated pressures,” she was

returned to the operating room for the placement of a drain to remove fluid from

her brain. As to the timing of K.S.’s injuries, Dr. Albert testified “it’s hard to know

exactly . . . it was probably fairly recent, hours, perhaps a day when the injury

occurred.” He agreed K.S. could have suffered both a progressing injury and a

very recent event—“It could have been multiple injuries and then one final fatal

injury.” Dr. Albert explained “there is a possible progression of symptoms” with

shaken baby/abusive head injury trauma—“headaches, irritability, vomiting,

lethargy, and then coma and posturing tend to come later.”

       Tuesday, March 23. Simmons and Fiser met with Schlitter and Nicole at

the hospital. Nicole reported K.S. had not been herself during her last visit. For

the first time, Fiser learned K.S. was pulling out her hair. Schlitter also talked

about K.S. having a fever and being sleepy—sleeping eleven to twelve hours a

night. He explained she would take a nap at daycare and then just lay around
                                        15



with a daycare worker for the rest of the day. Schlitter reported K.S. woke up

tired on Sunday March 21. Also for the first time, Schlitter described lunch on

March 21—they gave K.S. pizza, which she would put in her mouth and would

not chew. K.S. started to choke and they had to take it out of her mouth, which

made her mad. Around that time Schlitter put her down for a nap, but after her

nap she woke up tired. Also for the first time, Schlitter told the officers K.S. had

been waking up from naps at daycare, crying like she was having a nightmare.

At the end of the interview, Schlitter stated K.S. had thrown up on him just before

bedtime on Saturday night.      Schlitter did not tell the authorities he was so

frustrated with K.S. around noon that he had to leave her with Parmer while he

left to calm down.

      When the neurosurgical interventions did not control the swelling, Dr. Volk

placed K.S. in a medically-induced coma—“our last ditch effort for her survival.”

      Sunday, March 28. During the week K.S. was at UIHC, Schlitter was

there continuously and never left. Parmer did not come to the hospital. Nicole

and Schlitter made the difficult decision to remove K.S. from the ventilator and

held her on March 28 as she died.

      D. Investigation

      March 30 Interview—Nicole. Nicole told the investigators Schlitter gets

frustrated easily but she did not think he would ever hurt K.S. Nicole did not like

to leave Schlitter completely alone with K.S. because she was worried about his

short fuse. Nicole stated she believed Amy Parmer was hurting K.S.
                                       16



      March 30 Interview—Schlitter.         Schlitter stated he had seen Parmer

spank her son but Parmer loves kids and he “fully trusted” K.S. with Parmer. If

Schlitter was frustrated with K.S. and he was alone, he would put her in her

playpen to give himself a little break. If someone else was there, that person

would watch her while he walked away to cool off. That happened rarely, but it

happened “a few more times when she was sick and very fussy, oh, the last

couple of weeks.”

      When asked to talk about K.S.’s bruises, Schlitter stated he was not sure

how she got the one on the right side of her head, but she was just the right

height to hit her head on tables. He thought she got the bruise around her eye

from the Pack ‘n Play falling out of the closet on her. Schlitter denied he put

makeup on the March 8 bruise and stated, “Oh, I don’t even think Amy even

owns any makeup.”

              Q. Well, I mean, why . . . do you think somebody would put
      makeup over a black eye? A. To cover it up I suppose.
              ....
              Q. . . . [W]hen they wiped her face . . . makeup came off and
      the . . . bruise was darker, is what [daycare] related to us. When
      we talked to Amy, she said she didn’t put makeup on it. A. Yeah.
      I’m trying to think . . . . I think [Amy] might [have] put some like
      vitamin K on it, I, or whatever it is to help heal the skin.

      Schlitter stated: “I didn’t even notice [the Monday, March 15 bruises] until

the social worker told me on Tuesday that she had [them]. And then I picked her

up and I finally, I looked at her face, and she had real light bruising on her

cheeks,” one on each side.     Schlitter guessed those bruises came from the

computer table. Schlitter also stated he did not see bruises or marks when he

returned from financial class or from running an errand: “I didn’t pay that close
                                           17



attention to a lot of her, especially her smaller bruises, because she was very

active.”

       Simmons pointed out K.S. had marks on the back of her shoulders. In the

ensuing discussion Schlitter admitted, for the first time (1) he could have picked

K.S. up roughly at times when he was frustrated, and (2) he was frustrated at

lunch on March 21. Specifically,

               Q. . . . [Somebody’s] not just picking [her] up, they’re
       squeezing . . . with pretty good amount of force to leave bruises
       . . . . Did you ever pick her up like that and pick her up really fast
       and maybe some time when you got frustrated with her? I’m not
       saying you intentionally hurt your daughter, I’m not saying that by
       any means . . . . Did you ever have something like that where you
       [are] just like [K.S.], please, just stop crying . . . did you ever get
       frustrated with her like that? A. I’m sure I have.
               ....
               Q. Okay. What about the bruises under here? And the
       marks on here? [Simmons gestures to the body] A. Maybe that. I
       mean I picked her up a lot. I didn’t do it violently.
               ....
               Q. . . . I think you picked her up a little bit too hard. I think
       you picked her up too hard, argh, stop crying, why do you cry all the
       time . . . . A. . . . I didn’t get that frustrated with her. I didn’t shake
       her.
               Q. I don’t know how else to explain it . . . . A. I’m sure I,
       may have picked her up, you know, like you said, but I never shake
       her, I never shake her. I never hit her head.
               ....
               Q. Well, let me ask you this, is it possible you did something
       and didn’t realize you did it as hard as you did? A. Other than
       picking her up? No.

       In another portion of the interview, Simmons asked:

              Q. You didn’t hurt your daughter? A. No. Not that I know
       of.
             Q. What do you mean not that you know of?                  A.    Not
       purposely trying to hurt my daughter.
             ....
                                          18



                Q. Did you get frustrated with her [anytime] on Sunday? A.
         Uh, that she wasn’t eating lunch and I picked her up to set her
         down on her mat a few times [because] she kept getting up.
                Q. Okay. A. And it wasn’t extremely hard or forceful. I
         picked her up, sat her down, and she did that enough times I had to
         take a break. Amy watched her for a few minutes.
                Q. Okay. A. That was the last time I got frustrated.

         Schlitter thought K.S.’s tiredness the last few days was just getting over

her sickness.      But as soon as K.S. went to the hospital, he researched the

possibilities of head trauma and learned K.S. had the symptoms of head trauma.

Schlitter denied squeezing K.S.’s face to give her medicine. At the close of the

interview, Schlitter said he thought Parmer was “just too nice of a person to hurt

any kid.” The officers videotaped this interview, and the State played the video

for the jury at trial.

         DHS Report. Around April 12, 2010, Schlitter received a copy of the DHS

report on K.S.’s death. The report stated Parmer had referred to K.S. as “a little

brat” at the daycare. At trial, Schlitter was evasive about the report’s contents:

                Q. So isn’t it true that you did know that Amy Parmer had
         referred to [K.S.] as a brat at the daycare before July of 2010? A. I
         don’t recall reading that.
                ....
                Q. So you don’t recall reading this report here in full? A. I
         don’t know how thoroughly I read through it, no.

         February 2011.     Nine months later, Nicole talked to the investigators

about a past conversation with Schlitter—“we were talking about how scared he

was that he was going to be arrested for hiding what Amy did or something like

that.”
                                            19



       April 2011. Schlitter, Nicole, and Nicole’s new boyfriend, Cameron Heinz,

were shopping at Wal-Mart. Nicole saw Parmer and yelled, “That’s the woman

who killed” my daughter. According to Nicole, the following exchange occurred:

               Schlitter:   Tell me what really happened that night.
               Parmer:      Nothing. There was a previous injury.
               Schlitter:   I got a thirty-two page packet and you said some
       bullshit.
               Parmer:      Yeah, you said some bullshit too.
               Schlitter:   I know the blunt [sic] of it happened that night.
               Parmer:      No, it didn’t.

During closing argument, the prosecutor emphasized this conversation, stating

Schlitter and Parmer “essentially admit to what they knew they had done.”

       June 9, 2011. Schlitter contacted investigator Simmons and requested a

meeting. Simmons agreed to meet at the Hiawatha Police Department. At the

meeting, Schlitter stated his purpose was to try to help with the investigation.

Schlitter stated he understood someone making an educated guess would tend

to think he was responsible—all the “arrows” are “pointing to me.” Eventually,

Schlitter admitted he first noticed K.S.’s black eye in the morning of March 8, he

and Parmer had a conversation, Parmer told him a Pack ‘n Play fell out, and he

vaguely remembered Parmer putting “stuff” on the eye. At first, Schlitter denied

holding open K.S.’s mouth to put in the medicine. Later, he stated it was a

possibility, but he did not remember for sure.            The officers videotaped this

interview, and the State played the video for the jury at trial.

       E. Criminal Proceedings

       In July 2011 the State filed a two-count trial information charging Parmer

and Schlitter with first-degree murder and child endangerment resulting in death.
                                        20



In May 2012 the court granted Schlitter’s motion to sever his trial from Parmer’s.

After conducting a hearing on Schlitter’s motion to suppress evidence, the court

denied the motion. A jury trial was held from December 3-21, 2012.

      Nicole’s Trial Testimony. Nicole became acquainted with Parmer when

Parmer dated Nicole’s cousin. Parmer, Nicole, and the three children would

spend time together. After watching Parmer interact with her two children, Nicole

had concerns about how Parmer treated them. Initially, Nicole believed Parmer

caused K.S.’s injuries. But Nicole knew Schlitter, when he got frustrated with

K.S., “would grab her fast or sit her down roughly.” She explained Schlitter “likes

to be by himself to calm down” so he “would leave the situation most of the time.”

As K.S. got older and became more mobile, Nicole observed Schlitter’s

frustration increasing.   Nicole described an event as their relationship was

ending:

             [K.S.] was crying in her bed at night, and he had to get up for
      work early so he got frustrated, and that [is] when I said, “She’s just
      crying to try to tell us what’s wrong,” and he wadded up blankets,
      threw them in the crib towards her, and said F you to her” [and
      walked out of the room]. I told him I was tired of his anger.

      Nicole also described being upset with Schlitter after she watched him get

frustrated with K.S. in March. K.S. was starting to get sick, and he had put her in

a time-out. Nicole testified Schlitter “roughly” forced K.S. to sit down—“He would

grab her and sit her down, grab her and sit her down. Sit her down, sit her

down.” Nicole then told Heinz that they needed to get K.S. back.

      Nicole had not seen K.S. without a shirt or diaper since mid-February.

Nicole testified the bruising she saw on K.S. at the hospital was “absolutely not”
                                        21



any bruising she had “witnessed previous to that day.” While at the hospital,

Nicole observed fifty new marks on K.S. “all over her body.” Nicole testified she

had a different perspective on the perpetrator of the abuse after she saw “the nail

marks where you would pick up a child” in Exhibit 26. Nicole could tell someone

with fingernails picked K.S. up roughly, and she believed Schlitter was

responsible for the marks because he had picked her up too roughly again and

Parmer “does not have any fingernails.”

      Nicole testified seeing a March 8 daycare photograph also changed her

opinion as to Schlitter’s responsibility—“Well, one, you can see knuckle marks

under her eyes, and two, that was four days before he missed my visit. He was

two hours late for my visit.”    Finally, Nicole described Schlitter’s attempt to

manipulate her testimony at trial: “[H]e called two days ago, he asked me to talk

him up, back him up, when I testify.”

      DCI Trial Testimony. Agent Simmons described the pictures the DCI

took showing numerous items of makeup at Parmer’s Hiawatha apartment and at

her new apartment.     At the new apartment, the DCI found night cream with

vitamin K in it. Also, DNA testing showed K.S.’s DNA on the tissue with makeup.

      Testimony of Parmer’s Coworkers. Heather Myers worked with Parmer

at a restaurant. Myers testified to a time when she was giving Parmer a ride

home from work. Parmer suddenly became emotional and said, “I might have

killed a kid.” Timothy Sprous testified he worked with Parmer at the restaurant

and lived with Parmer from February to May 2011. Over a year after K.S.’s

death, Parmer went out drinking with Sprous and Myers and became emotional.
                                          22



She stated to Sprous, “You don’t want to get involved with me.” When Sprous

asked what she was talking about, Parmer replied, “I took a baby’s life” and “I

took an eighteen-month-old’s life.” Parmer identified the baby as K.S. and told

Sprous, “She had a head injury.”

       Medical Testimony.        Dr. Gary L. Baumbach, a pathologist at UIHC,

testified tissue from K.S. was preserved on March 22, 2010 at 12:13 a.m. In it he

found macrophages, which occur as a response to an injury. But, macrophages

don’t form instantly and need about a twenty-four hour period to form. Once the

macrophages are formed, however, they stay in the tissue for quite a while. Dr.

Baumbach testified to the timing of the injuries. First, he opined K.S. had “a

bleeding event” occurring from twenty-four to seventy-two hours before the tissue

sample (injury in a window between midnight March 18 and midnight March 20

from midnight March 21 sample). Second, because Dr. Baumbach saw changes

inside neurons that are not seen until approximately twelve hours after injury, an

injury occurred “sometime around noon on March 21.”9

       Dr. Marcus Nashelsky, a pathology professor at UIHC and a medical

examiner, opined:

              Usually there is some form of evidence in the form of a
       bruise or a number of bruises that we can say represent head
       impacts. We haven’t used the word shaken in our discussion at all
       because in a case like this one, there are bruising injuries on the
       face. Therefore, there are impact injuries of the face . . . . [For
       example,] another person could have punched [K.S.].




9
 Dr. Patricia Kirby, a pathologist at UIHC, testified to an injury “event occurring on”
March 21, 2010.
                                             23



       K.S.’s blood and membranes showed an injury that was “a few weeks old

or so”—and “there were at least two separate events.” Similar to Dr. Baumbach,

his examination showed there had been some bleeding “perhaps forty-eight to

seventy-two hours” before the sample (injury in a window between midnight

March 18 to midnight March 19). He testified the more recent injuries could have

happened “minutes to hours” before the 911 call, during a period of six hours as

opined by Dr. Oral or possibly during a period extending out to noon to 1:00 p.m.

on March 21—assuming she “was displaying some sort of functional or

behavioral abnormality.”10

       Dr. Resmiye Oral, a UIHC pediatric child abuse expert, completed a child

abuse assessment on K.S. Dr. Oral compared the bruises and injuries K.S. had

in the hospital on March 22 with the bruises and injuries shown in the March 8,

March 15, and March 16 photographs. She opined the March 22 injuries “were

all different.” She also explained it is not unusual for a child to cling to the person

abusing them. Dr. Oral met with Schlitter and Nicole together. She explained

her prior experiences in such interviews:

              Q. When you’re interviewing these parents or caretakers of
       children that have been abused to the point that [K.S.] was, do you




10
   Dr. Volk testified similarly: “That’s a difficult question because I don’t know exactly how
[K.S.] was on the day of her death. But I think the event happened minutes to hours
before she presented to 911. She would not have been normal after that event.”
        Dr. Sameer S. Kamath, a pediatric intensive care physician at the UIHC, opined
K.S.’s injury occurred sometime within twenty-four hours, and “more likely sooner than
later.”
        Dr. Michael D’Alessandro explained the CT scan to the jury. He opined the onset
of the massive swelling of K.S.’s brain was caused by an acute event fitting within the
“hours-to-days” spectrum. Within that spectrum, he would lean towards the twenty-four-
hour spectrum as opposed to the two-to-three-days spectrum.
                                         24



       expect or hope they will be as forthright as possible about history
       so you can provide the best medical care possible? A. I don’t.
             Q. Do you expect or hope that they will be forthright with
       you about their answers? A. Well, my experience is that the
       perpetrating parties are usually as vague as possible.

       K.S.’s facial bruises and marks caused Dr. Oral concern about

“fingerprints of a hand grasping the child’s face,” and “the facial injuries were very

consistent with grabbing the child’s face violently.” K.S.’s frenum, or the piece of

skin connecting the gum to the upper lip, was torn and pulled out—“And . . . this

is one of the worse frenum tears I have seen for some time.” Dr. Oral explained,

“In cases of abuse and neglect, we see this in the context of something being

forced into the mouth, and I usually never see this in isolation. It [is] always part

of other abusive injuries.”

       Dr. Oral sees the kind of retinal hemorrhages K.S. had “in for instance,

falling from a second story or third story onto a rigid surface or being thrown out

of a motor vehicle in a car crash or an abusive head trauma.” Dr. Oral stated:

“[T]he facial injuries were very consistent with grabbing the child’s face violently,

and especially the left arm—upper arm injuries were consistent with grab marks.”

She also observed “two deep scrapes, although connected with a red injury line,

and this is very concerning for a nail mark . . . . The scrape mark was continuing

into the child’s ear as well.”

       Dr. Oral opined the cause of K.S.’s death was non-accidental trauma.

K.S. had “bruises from at least two separate time frames” and “was injured at

least on two separate occasions leading to the injuries within her head.” K.S.’s

“older injuries would be at least older than seventy-two hours before admission to
                                           25



the hospital [or 8:00 p.m. March 18 at the earliest], up to two weeks maximum.”

Dr. Oral believed “the person injuring the child must have been aware that the

child’s symptoms had something to do with what had happened to the child’s

head, and not seeking proper medical care for that condition was medical neglect

which might have contributed to the final outcome.”           Dr. Oral, retrospectively

analyzing, opined K.S. was showing clinical signs of a brain injury leading up to

her final days.11

       Referencing the March 15 photograph, Dr. Oral opined she would expect

a reasonable caretaker to do more than call the doctor and ask about a child

sleeping too much if “throughout the course of the week,” the child “begins to

become sleepy, stops eating normally, begins pulling out her hair,” vomits, and

“even may have nightmares.” But if the caretaker knew that something had been

inflicted on the child, “they wouldn’t seek medical care for fear of the medical

providers understanding this was an inflicted injury.”

       As to the timing of the newer, acute injuries, Dr. Oral opined those took

place immediately to six hours before the injury—and based on literature, “more

likely was minutes before.” When relating an earlier injury to the recent injury,

Dr. Oral opined, due to the initial injury, the final injury did not have to be as

severe to cause damage, but the final injury was still a very significant event. Dr.

Oral concluded both of these injuries, “in a constellation,” were contributing

factors to K.S.’s death.      For the newer injury, K.S. “experienced rotational


11
  Dr. Oral stated the clinical signs included the fact that although her ear infection had
been treated and her fever had resolved, “she was still not herself. Later on through
record review, I learned she was reported to be clumsy. She wasn’t playful. She wasn’t
eating as well.”
                                        26



acceleration-deceleration forces as in shaking most likely with an impact from a

soft surface.”12 The actions creating the older injuries “would be similar” but not

necessarily with impact “because her neurologic status was much milder with the

older injuries.”

       At the close of the State’s case, defense counsel moved for a judgment of

acquittal on the murder count.      The court denied the motion, and defense

counsel presented evidence.

       Zyriah Schlitter Trial Testimony.      The defense theory was that Amy

Parmer abused and killed K.S and deceived Schlitter.         Schlitter denied ever

hitting K.S. Schlitter stated K.S. was already sleeping when he returned from his

Sunday financial classes. Schlitter testified K.S. was sleeping when he returned

on March 7 and he first learned about the March 8 makeup during his March 30

interview. Conflicting with his statements at the March 30 interview, Schlitter

testified Parmer wore makeup.       Schlitter’s testimony also conflicted with the

testimony of nurse practitioner Irwin. Schlitter told the jury Irwin did not talk to

him about a bruise during the March 8 appointment. Schlitter testified to his

March 16 conversation with Bliss:

              Q. What did you talk about in general while speaking with
       DHS on that day? A. She asked me if I knew about the [March 15]
       bruises on her cheeks. I told her I didn’t. I didn’t see them until I
       actually picked her up that day after [Bliss] mentioned them. [Bliss]
       asked me about a bruise on her head. I gave her the best
       explanation I could.




12
   Dr. D’Alessandro stated the injury could be caused by shaking the child, or by
slamming the child against a hard or even a soft object like a mattress, or by a
combination of shaking and slamming.
                                        27



      After our de novo review of the March 15 and March 16 photographs, we

conclude a reasonable jury could find Schlitter’s statements not credible.

Schlitter admitted not telling the nurse everything in his March 18 phone call—he

did not state K.S. was pulling out her hair, she was waking up with nightmares at

daycare, and she was not eating as much—“she had more symptoms.”

      On March 20 at 4:00 p.m., Schlitter took a video of K.S. on his phone

because she was “being silly and playing.” Schlitter spent the night of March 20

at Parmer’s. She did not wake up fast and was clingy on March 21. Schlitter

admitted becoming frustrated with K.S., leaving the room to take a break, and

leaving K.S. with Parmer.

      Schlitter testified he said “I’m sorry” to K.S. after he knew she had head

trauma and after he knew it was not accidental.          He denied making this

statement as an apology for causing the head trauma. After K.S. died on March

28, he returned to his grandparents’ house. He still loved Parmer, and she had

never called K.S. a brat in his presence. Later, he learned Parmer was sexually

intimate with Eric Olmsted while he was at the hospital with K.S.

      Trial Conclusion. At the close of the evidence, defense counsel moved

for judgment of acquittal on the first-degree murder charge and on the child

endangerment alternative of “circumstances showing an extreme indifference to

human life.” The court overruled the motions. During closing argument, the

prosecutor claimed Schlitter and Parmer “share responsibility for taking her life”

and the “multiple periods of abuse.”         The prosecutor claimed the medical

evidence showed a culture of abuse with injuries on March 21 in a window of six
                                          28



hours and additional injuries in a window of twelve to twenty-four hours and also

injuries within forty-eight to seventy-two hours. Further, the older bruising and

daycare pictures showed injuries in the weeks prior to K.S.’s hospitalization.

       After closing arguments, defense counsel objected to the last two minutes

of the prosecutor’s rebuttal argument, claiming it was improper argument. The

prosecutor stated his statements were in response to defense counsel’s closing

that spoke of “the solemn oath involved with using reasonable doubt and some of

the same type of sentiments.” After reviewing the “real time” transcript, the court

overruled the motion, stating the rebuttal argument “fairly talked about the

defendant was afforded his right to a fair trial and . . . I think could also be in

response to the solemn oath” statement used by defense counsel.

       The jury returned a guilty verdict on a lesser offense of the murder

charge—involuntary manslaughter by commission of a public offense—and

returned a guilty verdict on the charge of child endangerment causing death.

The court merged the sentences and ordered Schlitter serve an indeterminate

term of fifty years for child endangerment causing death. Schlitter now appeals.

II. Standards of Review

       We review Schlitter’s constitutional challenge to the district court’s denial

of his motion to suppress de novo. See State v. Palmer, 791 N.W.2d 840, 844

(Iowa 2010). We examine the entire record—both the evidence introduced at the

suppression hearing and the evidence at trial—and make an independent

examination of the “totality of the circumstances.” Id. We give deference to the

district court’s fact findings, with particular deference given to the district court’s
                                         29



assessment of the credibility of the witnesses. Id. However we are not bound by

the district court’s findings. Id.

       We likewise review Schlitter’s claims his counsel rendered ineffective

assistance de novo.       See State v. Finney, 834 N.W.2d 46, 49 (Iowa 2013).

Generally we preserve claims of ineffective assistance of counsel raised on direct

appeal for postconviction proceedings to allow full development of the facts

surrounding counsel’s conduct. Id. However, we will address the claims on

direct appeal where the record is sufficient. Id. The record here is sufficient.

III. Custodial Interrogation

       Schlitter asserts a Miranda violation, claiming he was not properly advised

of his Miranda rights during a custodial interrogation on March 30, 2010. See

Miranda v. Arizona, 384 U.S. 436, 444 (1966) (requiring a suspect be informed of

his right to remain silent and right to counsel).        Schlitter claims all of his

“statements during the March 30 interrogation must be suppressed.”                 See

Palmer, 791 N.W.2d at 844–45 (noting statements are inadmissible when the

Miranda procedure is not followed).       The State, on the other hand, claims

Schlitter was not in custody at the time of his March 30 interview.

       To bring a viable claim, Schlitter must have been “in custody” during an

“interrogation.” Id. Custodial interrogation is defined as “questioning initiated by

law enforcement officers after a person has been taken into custody or otherwise

deprived of his freedom of action in any significant way.” State v. Simmons, 714

N.W.2d 264, 274 (Iowa 2006). Whether a suspect is in custody depends on the

court’s objective analysis of the extent of the restraints on his freedom of action
                                          30



in light of whether “a reasonable man in the suspect’s position would have

understood his situation” to be custodial. State v. Ortiz, 766 N.W.2d 244, 251

(Iowa 2009). The court takes four factors into consideration: “(1) the language

used to summon the individual; (2) the purpose, place, and manner of

interrogation; (3) the extent to which the [Schlitter] is confronted with evidence of

[his] guilt; and (4) whether the [Schlitter] is free to leave the place of questioning.”

State v. Miranda, 672 N.W.2d 753, 759 (Iowa 2003). Analyzing the facts of this

case in light of the four factors, we conclude Schlitter was not in custody during

his March 30 interview.

       Schlitter acknowledges the interrogation room was unlocked, but points

out the room only had one exit and was used exclusively for questioning. He

claims the purpose of the interrogation was to gain incriminating statements from

him. He also claims he was confronted by evidence of guilt. Finally, Schlitter

claims he, subjectively, “clearly did not feel free to leave” based on the officers

continuing to question him after he asked the officers to “just stop” when they

were “getting too graphic” and based on the fact he did not leave until after he

promised to come back the next day for a polygraph.

       In denying Schlitter’s motion to suppress, the district court specifically

found Simmons and Fiser to be credible. Schlitter’s motion did not single out the

March 30 interview but broadly asserted his Miranda rights were violated in all

four interviews.    The district court concluded: “In each of the interviews,

[Schlitter’s] freedom of action was not curtailed to a degree associated with
                                          31



formal arrest” and he “was not in custody during any of the interviews and he was

free to leave the place of questioning in all of the interviews.”

       We first note the district court found credible the officers’ testimony that on

March 30 they were conducting an interview for the purposes of gathering

background information and there were no plans to take Schlitter into custody

because there was no evidence with which to charge him with a crime. This

testimony is further bolstered by the fact Schlitter was not charged with any

offense for another fifteen months.            We defer to the court’s credibility

determination.

       Second, Simmons did not use formal language or procedure to summons

Schlitter on March 30. Rather, Simmons called Schlitter and asked if he would

be willing to come to the DCI office in Cedar Rapids to answer additional

questions and Schlitter agreed. Third, it is undisputed that Schlitter drove himself

to the March 30 interview and the door to the interview room was always

unlocked.

       Finally, the interview ended at 6:40 p.m. Schlitter answered questions

willingly and eventually ended the interview of his own volition in order to eat

supper with his family—“My family’s expecting me about 6:30 p.m. over at my

aunt’s.” After our de novo review and after giving deference to the district court’s

credibility determinations, we conclude Schlitter was not subject to a custodial

interrogation during the March 30 interview. Thus, his Miranda challenge fails.
                                        32



IV. Involuntary Statements and Error Preservation

       Alternatively, Schlitter claims that “even in a noncustodial setting,” his

March 30 statements must be suppressed if his “will was overborne” such that

his statements were involuntary. See State v. Neiderbach, 837 N.W.2d 180, 200

(Iowa 2013) (using “the totality-of-the-circumstances test”); State v. Madsen, 813

N.W.2d 714, 722 (Iowa 2012) (ruling “statements are voluntary if the defendant’s

will is not overborne”). Schlitter claims “under the circumstances, his will was

overborne.”

       The State contends Schlitter did not preserve error and is making dual

claims on separate issues—a claim the statements were taken in violation of

Miranda and a claim the statements were involuntary. See State v. Snethen, 245

N.W.2d 308, 311 (Iowa 1976) (stating the defendant raised two grounds in his

motion to suppress (1) the statements were taken in violation of his Miranda

rights and (2) the statements were “not voluntary”—“[t]hese are separate

issues”).

       We agree with the State. Schlitter’s motion to suppress did not claim his

“will was overborne” and challenge voluntariness as a separate claim.          The

district court did not discuss any of the factors to be analyzed in a “will-was-

overborne” analysis but instead focused solely on factors relevant to the custody

issue under Miranda.     See State v. Madsen, 813 N.W.2d at 722-23 (stating

factors in a “will-was-overborne” analysis).       Because this issue was not

presented to and ruled upon by the district court, we will not address it on appeal.

See State v. Mitchell, 757 N.W.2d 431, 435 (Iowa 2008).
                                         33



V. Ineffective Assistance—Standards

       In order to prove trial counsel was ineffective Schlitter must show, by a

preponderance of the evidence, (1) counsel failed to perform an essential duty

and (2) he suffered prejudice as a result of counsel’s failure.        See State v.

Robinson, 841 N.W.2d 615, 617 (Iowa Ct. App. 2013).

       As to the duty element, counsel’s performance is measured against the

standard of a reasonably competent practitioner. Everett v. State, 789 N.W.2d

151, 158 (Iowa 2010). Schlitter must overcome the presumption of competent

assistance. See Millam v. State, 745 N.W.2d 719, 721 (Iowa 2008). To establish

prejudice, Schlitter must show “there is a reasonable probability that, but for

counsels’ unprofessional errors, the result of the proceeding would have been

different.” Ledezma v. State, 626 N.W.2d 134, 143 (Iowa 2001). “A reasonable

probability is a probability sufficient to undermine confidence in the outcome.” Id.

VI. Ineffective Assistance—Acquittal on Lesser Offenses

       Schlitter challenges trial counsel’s failure to move for judgment of acquittal

on the offenses for which he was convicted—child endangerment resulting in

death and the involuntary manslaughter by public offense.

       Regarding the prejudice alternative on an acquittal issue, “we have

required a showing that but for counsel’s unprofessional errors, a reasonable

probability of acquittal existed,” i.e., we inquire “whether the evidence presented

is sufficient to sustain a conviction of the offense in question.” State v. Breitbach,

488 N.W.2d 444, 446 (Iowa 1992).         In making this inquiry, we examine the

evidence in the light most favorable to the verdict.         Id.   “We consider the
                                           34



evidence substantial if it can convince a rational jury the defendant is guilty

beyond a reasonable doubt.” State v. Ross, 845 N.W.2d 692, 702 (Iowa 2014).

       The jury instructions for “child endangerment resulting in death” required

the State to prove:

               1. Between and including March 1, 2010, and March 21,
       2010, the defendant was a person having custody or control over
       [K.S.].
               2. [K.S.] was under the age of fourteen years.
               3. The defendant:
                      a. Knowingly acted in a manner that created a
       substantial risk to [K.S.’s] physical health or safety; or
                      b. By an intentional act or series of intentional acts
       used unreasonable force that resulted in bodily injury or was
       intended to cause serious injury; or
                      c. Willfully deprived [K.S.] of necessary supervision
       or medical care appropriate to her age, being reasonably able to
       make such necessary provisions, which deprivation substantially
       harmed [K.S.’s] physical health; or
                      d. Knowingly permitted the continuing physical abuse
       of [K.S.].
               4. The defendant’s act resulted in the death of [K.S.].

       On appeal Schlitter does not dispute elements 1 or 2, but challenges the

sufficiency of the evidence on each of the four alternatives in element 3 and also

challenges the evidence showing any act by him resulted in K.S.’s death.

      A. Schlitter Knowingly Acted in a Manner that Created a Substantial
Risk to K.S.’s Physical Health or Safety

       The State must prove Schlitter “acted with knowledge that [he] was

creating a substantial risk to the child’s safety.” State v. Millsap, 704 N.W.2d 426,

430 (Iowa 2005). Schlitter claims there were only two instances of Nicole and

Jeri thinking he handled K.S. too roughly. 13 He contends the amount of force



13
  Nicole testified she saw him be rough with K.S. when he repeatedly sat K.S. in time-
out. Jeri testified on one occasion she believed Schlitter took K.S. out of an Exersaucer
                                         35



causing K.S.’s March 21 injuries was far more than those prior actions. Schlitter

also claims a “person would have to be aware” to apply the amount of force

testified to by the medical experts and his statements to the police, his texts to

Parmer, his act of showing the texted symptoms of child abuse to the DHS and

using them to try to figure out who abused K.S. show he did not know what had

happened to K.S.

         Schlitter additionally claims the doctors concluded K.S.’s fatal injuries

most likely occurred immediately prior to the onset of K.S.’s symptoms and

Parmer was the sole caretaker of K.S. before the onset of symptoms. He also

claims this testimony is consistent with K.S.’s changes in behavior after he

started dating Parmer. Schlitter concludes it is thus most likely the fatal act took

place while Parmer was the sole caretaker and there is no evidence any acts by

him caused K.S.’s death.

         We note the medical evidence did not show that all of K.S.’s injuries

happened under the exclusive care of Parmer. Rather, it showed all the injuries

happened under the exclusive care of both Schlitter and Parmer.

         The State responds, “Schlitter knowingly created a substantial risk to

seventeen-month-old K.S. by leaving her with his girlfriend, Amy Parmer, even

though K.S. had previously sustained bruises and other injuries while in her

care.”

         Knowledge in this context means Schlitter “acted with knowledge” he “was

creating substantial risk to the child’s safety.”   See State v. Leckington, 713


too fast because he was consoling K.S. and K.S. had two straight red marks across her
legs.
                                         36



N.W.2d 208, 214 (Iowa 2006) (ruling “[e]xpert testimony, along with a good dose

of common sense, would enable” a reasonable jury to conclude the defendant

knowingly created a substantial risk). “Knowledge or intent is seldom capable of

direct proof.” State v. Miller, 308 N.W.2d 4, 7 (Iowa 1981). “Knowledge can be

shown by reasonable inferences drawn from the circumstances surrounding the

injury event and not only by direct evidence.” Millsap, 704 N.W.2d at 430.

       One reasonable inference regarding Schlitter’s knowledge can be drawn

from the timing of the events. On two Monday mornings after K.S. spent the

weekend at Parmer’s apartment, March 8 and 15, daycare staffers noticed

bruising so significant that they took pictures and contacted the director, who

called the DHS after the second incident. Both times, Parmer took care of K.S.

while Schlitter was at a class. Schlitter dropped K.S. off at daycare and picked

her up on both Mondays. A reasonable jury could find Schlitter’s claims he did

not know about the bruises not credible. The jury was not required to believe

Schlitter’s self-serving version of the facts. See State v. Arne, 579 N.W.2d 326,

328 (Iowa 1998).     A reasonable juror could conclude Schlitter knew he was

creating a substantial risk to K.S. by leaving her with Parmer on Sundays. See

State v. Nitcher, 720 N.W.2d 547, 556 (Iowa 2006) (“Inherent in our standard of

review of jury verdicts in criminal cases is the recognition that the jury was free to

reject certain evidence, and credit other evidence.”).

       The jury could also draw reasonable inferences about Schlitter’s

knowledge based on his inconsistent statements. See id. For example, during

his March 30 interview, Schlitter denied knowing about the makeup, flatly stated
                                         37



Amy does not wear makeup and then suggested Amy put vitamin K on the

bruise. In his June interview, Schlitter admitted he knew about K.S.’s black eye

on the morning of March 8, he and Parmer had a conversation about it, and he

vaguely remembers Parmer putting “stuff” on the eye. At trial he equivocated

about how K.S. looked on March 8 and his awareness of the makeup:

              Q. Well, you were there [on March 8] when something was
       being put on K.S’s] eye; were you not? A. I believe I remember
       [Amy] putting some kind of vitamin K cream on is what she told me.
              Q. Okay. And correct me if I’m wrong, but there was a
       conversation that morning as well—you say vitamin K was being
       put on [K.S.]. It was later determined to be makeup. But . . . there
       was a conversation about that black eye that morning with Amy;
       wasn’t there? A. I don’t remember.

The prosecutor then refreshed Schlitter’s recollection that in the June interview

he was asked, “So there was a conversation about her black eye that morning

[March 8]; right?” and Schlitter answered, “Yeah, I must have.” Schlitter, in June,

also stated, “Well, we noticed it [black eye].” The questioning at trial continued:

               Q. Okay. So is it your testimony today that you and Amy
       Parmer had a conversation about the black eye on [K.S.]? A. I
       honestly don’t remember.
               Q. All right. A. [June] was a year and a half later.
               Q. Okay. But it’s a pretty important conversation regarding
       an injury to your child that was later determined to have makeup on
       it; am I right? A. Yes.
               Q. Okay. And so do you remember today having a
       conversation with Amy Parmer about that? A. Not a conversation,
       no.
               Q. Okay. But on June 9, 2011, you did tell [the officer] that:
       didn’t you. A. I guess I did.
               ....
               Q. Okay. So is it fair to say that you were aware when
       [K.S.] went to daycare that she had a black eye? Is that fair to say
       based on what we’ve heard here? A. I wouldn’t call it a black eye.
               Q. That [is] the way it was referred to. A. It was referred to
       as a black eye, yes.
               Q. All right. A. It was not very prominent.
                                         38



              [The prosecutor showed Schlitter a March 8 photograph.]
              Q. Okay. And so your testimony is that this black eye was
       not prominent that day? A. It looks red to me.

Admissions are evidence, and admissions may be implied by Schlitter’s conduct

“subsequent to a crime, including fabrication, when such conduct indicates a

consciousness of guilt.” See State v. Cox, 500 N.W.2d 23, 25 (Iowa 1993). “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. A reasonable jury could

conclude Schlitter joined with Amy to make the March 8 bruises look less severe

by using makeup. A reasonable jury could conclude the injuries resulted from

abuse by Schlitter or Parmer or both since joint efforts were made to cover the

injuries and to minimize the injuries.

       A reasonable jury could credit Sotelo over Schlitter’s denial of making the

March 15 statement, “She likes to beat herself up.” At trial, Schlitter admitted he

did not tell the nurse all of K.S. symptoms when he called for medical advice on

March 18. When his symptom-reporting omissions and non-credible denial of

Sotelo’s testimony are viewed together, a reasonable jury could conclude Schlitter

knew K.S. was in danger but he was unwilling to call attention to himself or

Parmer by providing a full list of her symptoms when he called for medical advice

two days after the DHS had questioned him about her bruises.

       Dr. Beard, the first doctor to treat K.S., testified to her discussion of K.S.’s

condition with Schlitter: “I remember being in the family consultation room

explaining how sick [K.S.] was and how [she] could die and she was dying, and
                                         39



[Schlitter] had no reaction, didn’t ask any questions, didn’t cry.”        Dr. Beard

testified, generally, parents ask her questions when she is telling them their child

is gravely ill. A short time later, Schlitter said, “I'm sorry,” to K.S. When his “I’m

sorry” admission is combined with his total failure to react to Dr. Beard’s

message, a reasonable jury could believe Schlitter’s statement to K.S.

demonstrated his “knowledge” that he was responsible—at least in part—for her

condition.

       Schlitter’s inconsistent or incomplete or evasive statements during his

multiple interviews provides further evidence of his knowledge of the substantial

risk to which he was subjecting K.S. During the first interview at UIHC with Fiser

and the Hinman, Schlitter did not tell them everything he knew about K.S.’s

symptoms. During the interview on March 23 with Fiser and Simmons, Schlitter

first revealed additional, significant symptoms: K.S. had been pulling out her hair,

she was sleeping eleven to twelve hours a night and would “wake up slow,” she

was waking up from naps at daycare crying as though she were having a

nightmare, she threw up on Schlitter just before bedtime on March 20, and she

had been given pizza for lunch on March 21 and tried to swallow it without

chewing.

       Additionally, the jury learned that Schlitter and Parmer had exchanged a

number of text messages around the time K.S. was hospitalized and after her

death.14 Some texts speculated on how she could have received her injuries and



14
  Investigators could not obtain texts exchanged on March 22 and March 25 because
the phone company had server problems on those days. Therefore, none of the texts
sent on those days were saved.
                                       40



referred obliquely to attempts to come up with an explanation for K.S.’s injuries

that did not point to either Schlitter or Parmer. For example, on March 23, 2010,

Parmer texted Schlitter, “The web stuff [I’m] sending you is also from a

government site and other ones. I will send the site addresses also.” “The web

stuff” was information Parmer e-mailed to Schlitter about the symptoms of

shaken baby syndrome and head trauma.           Later that day, Schlitter texted

Parmer, “[I’m] glad you found all that info, she had a lot of those symptoms the

past coup[l]e weeks, and [I’ve] told everyone about her symptoms.”         Parmer

responded, “Right. [I’m] glad [I] I found them. I have to go talk to cops again

tomorrow.” A reasonable jury could conclude the injuries resulted from abuse by

Schlitter or Parmer or both since joint efforts were made to understand the

symptoms of abuse before they were subject to additional police interviews.

       Finally, on March 31, three days after K.S. died and one day after

Schlitter’s March 30 interview, Schlitter sent Parmer a text that showed his

intimate relationship with Parmer took priority over K.S.: “[W]e are free to do

more without worrying [a]bout being walked in on lol [laugh out loud].”          A

reasonable jury could conclude Schlitter callously picked Parmer over his

daughter despite his daughter suffering numerous injuries while staying at

Parmer’s apartment.

       As to alternative (a)—knowingly acting in a manner that created a

substantial risk to K.S.’s health or safety—the overwhelming evidence of K.S.’s

injuries unquestionably being caused by abuse, the timing of the injuries,

Schlitter’s   evasiveness   when   questioned   by   daycare   staffers,   doctors,
                                             41



investigators, and the prosecutor at trial, combined with Schlitter’s failure to seek

medical care after March 18, all the while knowing he did not provide the nurse

with all symptoms in his March 18 phone call, provide substantial evidence.

     B.   Schlitter by an Intentional Acts or Series of Acts Used
Unreasonable Force that Resulted in Bodily Injury or Was Intended to
Cause Bodily Injury

       Schlitter jointly argues this alternative and the prior alternative, relying

upon the claims asserted above for this issue. Focusing our appellate analysis

on the resulted-in-bodily-injury option, our review of the record shows substantial

evidence supporting alternative (b). Dr. Oral testified it is not unusual for a child

to cling to the person abusing them. Nicole testified to Schlitter’s increasing

frustration with K.S. as she became more mobile. Nicole also stated she did not

want to leave K.S. alone with Schlitter due to his “short fuse.” Nicole wanted to

get K.S. back after she watched Schlitter roughly grab K.S. over and over and sit

her down while K.S. was starting to get sick.             Despite Schlitter’s attempt to

manipulate her testimony, Nicole told the jury she believed Schlitter again picked

K.S. up too roughly, causing the numerous bruises depicted in the photographic

exhibits. In the June interview, Schlitter admitted to becoming frustrated with

K.S., to having picked her up roughly, and to having squeezed her face.15

       Dr. Volk testified K.S. pulling out her hair is a sign of being under extreme

stress for days. Doctors also testified K.S. suffered at least two traumatic events



15
   Schlitter’s grandmother testified Schlitter sometimes became frustrated while giving
K.S. her oral medicine and would forcibly hold her head still with his fingers. He also
bought an eyedropper to force water because he was worried about dehydration.
Schlitter’s step-grandfather testified K.S. resisted taking her medicine, and Schlitter tried
the best he could to get her to take it.
                                        42



with the older event occurring several days before K.S. was hospitalized. This

“several days” period coincides with the March 18-21 period when Schlitter’s

grandparents were out of town and not available to help him with K.S’s care.

Until Schlitter moved out of Nicole’s home, he had never taken care of K.S. for

more than forty-eight hours at a time, and during those forty-eight hours either his

grandparents or Parmer were present. Schlitter admitted he was more frustrated

with K.S. when she was sick and understood “the arrows” pointed to him.

      As to the more recent traumatic event, in his June interview Schlitter

admitted he was frustrated with K.S. at lunch time on March 21 and repeatedly

picked her up and sat her down. He admitted being so frustrated that he had to

leave the room. Pathology witnesses testified the more recent traumatic event

could have occurred around noon on March 21. Dr. Oral opined an older and a

newer traumatic event contributed to K.S.’s death, “in a constellation,” and

substantial evidence showed Schlitter was caring for K.S. during those times.

      K.S. showed signs of extreme injury the week of March 15. Schlitter’s

intentional infliction of physical abuse is shown by his failure to mention her

serious symptoms on March 18 and by the fact he failed to take her to her March

19 appointment—three days after he had been questioned about her bruises by

the DHS and two days before she was rushed to the hospital. At trial, Dr. Oral

addressed K.S.’s recovery from her older injuries—given that she was still

moving around “until the very last day, [K.S.] might have recovered from those

injuries and gone to her baseline, or she might have deteriorated to a more grave

neurologic status even if it’s not as severe as the one she ended up with.” With
                                           43



the second option—some deterioration—her caretakers could take one of two

paths.     One, seek medical care early enough to help her recover.           Two,

especially if they knew that “something was inflicted” on her, not seek medical

care “for fear of the medical providers understanding this was inflicted injury” and

only seek medical care when it is too late for intervention. A reasonable jury

could find Schlitter chose the second path and did not seek medical care for K.S.

after March 18 “for fear of the medical providers understanding this was inflicted

injury” by him.

         Schlitter’s lack of outrage or curiosity at St. Luke’s Hospital about what

had happened to K.S., his refusal to tell Dr. Jennissen at UIHC what K.S. had

been like when he left for his class, his lack of concern about her bruises, his

non-credible statement that Irwin failed to ask him about the early bruise, his

varying accounts of how K.S. obtained the bruises, and his “I’m sorry” statement

to K.S. in the first emergency room, when added to the evidence discussed

above, show substantial evidence Schlitter intentionally inflicted injuries on K.S.

that resulted in bodily injury, alternative (b).

     C. Schlitter Willfully Deprived [K.S.] of Necessary Supervision or
Medical Care Appropriate to Her Age . . . Which Deprivation Substantially
Harmed [K.S.’s] Physical Health

         Schlitter claims K.S. was always supervised and he repeatedly took her to

the medical clinic or called about her illnesses. Schlitter believed K.S. was sick

and thought her bruises were typical for a kid. He points out neither Irwin nor

Bliss took action regarding the bruises.           We note K.S.’s bruising was not

prominent or concerning when observed by Irwin and Bliss. Schlitter concludes
                                         44



he was taking every reasonable step to provide supervision or medical care for

K.S.

       The State responds Schlitter deprived K.S. of supervision necessary for

her well-being by willfully failing to protect her from physical abuse at the hands

of Parmer under the circumstances discussed in alternative (a). We specifically

note the text Schlitter sent to Parmer about their sex life only days after K.S. had

died and agree with the State. There is no reason to repeat our analysis.

       Second, the State claims Schlitter willfully deprived K.S. of necessary

medical care by failing to seek care when she exhibited signs of devastating

injury. We agree and adopt our discussions above. We also note Dr. Oral

testified the failure to seek medical care for the symptoms K.S. was exhibiting

“was medical neglect which might have contributed to the final outcome.” Dr.

Oral also opined that one “probable” scenario is K.S. had these lingering

symptoms and manifestation of a brain injury, but medical care was not sought in

time. We conclude substantial evidence supports alternative (c).

       D. Knowingly Permitted the Continuing Physical Abuse of K.S.

       Schlitter argues he did not knowingly permit Parmer to abuse K.S because

he was an inexperienced, first-time father who did not recognize that K.S. was

being abused. He claims his lack of knowledge is demonstrated by his text

messages to Parmer and his behavior with DHS investigator Hinman. “Further,

K.S. never reacted negatively to him.”

       We first note Dr. Oral stated an abused child will cling to their abuser.

Second, our analysis in alternative (a)       shows substantial evidence proving
                                             45



Schlitter was aware that Parmer was physically abusing K.S. but continued to

entrust K.S. to her care every Sunday evening. Thus, our analysis also shows

substantial proof supports alternative (d).

       E. Conclusion

       After trial from December 3-21, 2012, creating over 2400 pages of

transcript, the jury assessed the credibility of thirty-nine witnesses. A reasonable

jury could find Schlitter guilty beyond a reasonable doubt under each of the

instruction’s four alternatives for child endangerment resulting in death. Thus,

trial counsel did not breach an essential duty by failing to move for a judgment of

acquittal. Second, Schlitter failed to meet the prejudice prong of this claim by

failing to show “but for counsel’s unprofessional errors, a reasonable probability

of acquittal existed.”16 See Breitbach, 488 N.W.2d at 446. Accordingly, defense

counsel did not render ineffective assistance.

VII. Ineffective Assistance—Prosecutor Misconduct

       Schlitter claims trial counsel’s failure to timely object to the prosecutor’s

misconduct during closing argument denied him a fair trial because the

prosecutor’s statements improperly urged the jury to decide the case on


16
   Schlitter also claims counsel was ineffective in failing to move for judgment of acquittal
on the offense of involuntary manslaughter by public offense. He claims there is
insufficient evidence Schlitter committed the public offense of child endangerment. The
jury was instructed the State first must prove Schlitter “recklessly committed” the crime
of child endangerment under any of the four alternatives already discussed extensively.
Noting “reckless” is a high bar; Schlitter claims his conduct under the circumstances
does not rise to the level of “highly unreasonable” or “extreme departure.” Second, the
State had to prove that when Schlitter so acted, he unintentionally caused the death of
K.S.
         As discussed above, there is substantial evidence for each of the four
alternatives, and we conclude a reasonable jury could find Schlitter acted recklessly.
Also as discussed above, there was substantial evidence Schlitter’s acts caused the
death of K.S. Thus, counsel did not breach a duty resulting in prejudice by his inaction.
                                            46



something other than the evidence by arguing: (1) to do justice for K.S. the jury

had to find Schlitter guilty; (2) the jury had a sacred duty to find Schlitter guilty to

protect the public and the innocent; and (3) the jury had to hold Schlitter

accountable.17

       For Schlitter to establish a due process violation based upon prosecutorial

misconduct, he must first establish proof of misconduct. See State v. Graves,

668 N.W.2d 860, 869 (Iowa 2003). “Misconduct occurs when the prosecutor

[uses] unnecessary and over inflammatory means that go outside the record or

threaten to improperly incite the passions of the jury.”           State v. Carey, 709

N.W.2d 547, 556 (Iowa 2006). If he establishes misconduct, Schlitter must then

prove the misconduct resulted in prejudice to the extent he was denied a fair trial.

See Graves, 668 N.W.2d at 869.


17
  The prosecutor argued:
      You’ve heard all but the final lines of [K.S.’s] story. Now you have the
      opportunity to write the final lines of her story. By holding accountable
      those that took [K.S.] from this world, the Defendant, her own father, you
      can write justice to her story.
               ....
               [T]he laws of our country also grant our citizens the solemn and
      sacred duty of protecting the safety of the public and of the innocent by
      judging those that commit brutal acts of abuse and neglect against fellow
      humans to be guilty when it’s been shown beyond a doubt that’s
      reasonable.
               What more important honor can there be bestowed to protect the
      rights of citizens and acknowledge those rights and find them accountable
      through the rest of us. This is how our justice system works. This trial
      has demonstrated how our justice system works.
               Mr. Schlitter was afforded his right to a fair trial. He had an
      opportunity to confront the witnesses against him. The evidence has
      been submitted and shows he’s guilty of murder in the first degree and
      child endangerment beyond a reasonable doubt. The trial is now done
      and the sacred duty is now being passed on to you. You can write the
      final lines of [K.S.’s] story, and you can also be authors of justice with the
      jury form.
(Emphasis added.)
                                         47



         Schlitter cites State v. Musser, where the court recognized “there is

always some gray area between proper and improper comment.” 721 N.W.2d

734, 755 (Iowa 2006). The Musser court ruled the prosecutor “inappropriately

diverted the jury from its duty to decide the case solely on the evidence by

injecting issues broader than the guilt or innocence of the defendant and by

making predictions of the consequences of the jury’s verdict.”          Id.   (finding

misconduct where the prosecutor asked the jurors to find the defendant guilty

“because it is the right thing to do,” and “because the only way that he will care is

if you make him care,” and urged the jurors to “[m]ake him responsible because,

if you don’t, no one will”). The Musser court then turned to resolving whether the

defendant was prejudiced by the misconduct and ruled Musser was not denied a

fair trial:

         The evidence against the defendant was strong, the comments did
         not go to a central issue in the case, and the improper statements
         by the prosecutor were isolated. In addition, the jurors were
         instructed they were to decide the defendant’s guilt or innocence
         “from the evidence and the law in these instructions,” and that
         evidence did not include “[s]tatements, arguments, and comments
         by the lawyers.”

Id. at 757.

         Even if we assume—as Schlitter argues—the prosecutor’s statements

constituted misconduct, based on our review of the entire record we do not

believe the alleged misconduct was sufficiently prejudicial to require a new trial.

See id. Schlitter’s case is one that necessarily involves emotion—the death of a

child. Here, as in Musser: (1) the jury was specifically instructed to base its

verdict “only upon the evidence and these instructions” and that the “statements,
                                        48



arguments, questions, and comments by the lawyers” are not evidence; and (2)

the case against Schlitter was strong—the medical experts agreed K.S. died from

non-accidental trauma and agreed abuse was inflicted on more than one

occasion causing multiple injuries. It is undisputed Schlitter cared for K.S. during

the time the trauma occurred and he did so at a time when his usual helpers, his

grandparents, were gone. In the June interview, Schlitter admitted the “arrows”

of guilt point to him.   In addition, the prosecutor’s statements constituted a

general exhortation to the jury and did not undermine Schlitter’s defense by

focusing on any particular issue or witness. Finally, the challenged statements

were isolated, as shown by the fact the challenged comments occurred on two

transcript pages of the sixty-five overall pages of the prosecutor’s closing

arguments.

      In these circumstances, Schlitter was not denied a fair trial. Accordingly,

counsel was not ineffective in failing to make a meritless objection to the

prosecutor’s statements. See id. at 752.

VII. Ineffective Assistance—Failure to Investigate Parmer’s Co-workers

      Schlitter’s trial occurred before Parmer’s trial.    On January 29, 2013,

Simmons conducted an interview of Parmer’s coworker Brandi Betts.             Betts

stated Parmer was fired for taking money from the restaurant and Parmer would

constantly change her story about what happened when she discussed K.S.’s

death with employees. The State informed Schlitter’s defense counsel of the

interview, and counsel filed a motion for new trial based on newly discovered

evidence. The motion alleged: (1) Schlitter’s “whole trial strategy was premised
                                        49



on the fact that Ms. Parmer was the one responsible for the injuries and death

and that [Schlitter] knew nothing about it”; (2) Betts would have been called to

show the jury Ms. Parmer “was constantly lying and changing her story about the

injuries she caused”; and (3) Betts’s testimony “would have changed the jury’s

mind as to whether [Schlitter] had any knowledge of Ms. Parmer’s actions

because it showed Parmer was lying to multiple people from the very beginning,”

and the jury thus could infer she also deceived Schlitter. The court denied the

motion.

       On appeal, Schlitter alleges a competent attorney would have questioned

Parmer’s coworkers prior to trial and discovered this evidence. Schlitter further

claims he was prejudiced because the testimony showed Parmer was a deceitful

person and would have supported the theory did not know about the abuse, in

part, because of Parmer’s deceit.

       We conclude Schlitter has failed to show the result of the trial would have

been different if the evidence from Betts had been presented; thus, his

ineffective-assistance claim fails on the prejudice prong. Schlitter contends the

Betts evidence supports his claim he was unaware of the abuse.             But this

evidence does not overcome the abundant evidence discussed above in section

VI showing Schlitter was aware of the abuse and nevertheless defended Parmer.

       Second, Betts’s testimony that Parmer gave varying accounts of how K.S.

sustained her injuries and stole money can hardly be more beneficial to Schlitter

than the evidence at trial that Parmer told one friend she had taken K.S.’s life and

told another friend she “might have killed a kid.”        That testimony directly
                                      50



implicates Parmer and is stronger than the inferences arising from Betts’s

testimony.

       Finally, the State presented other evidence showing Parmer was deceitful.

Nicole testified Parmer had made a “fool of a man” before and she thought

Schlitter was a fool when he defended Parmer at the hospital. Eric Olmstead,

who had an intimate relationship with Parmer, testified Parmer deceived him

“about a whole lot of things.” The defense also presented evidence of Parmer’s

deceitfulness. Schlitter testified he had been warned about Parmer, he did not

realize she was seeing another man, and he did not know Parmer had called

K.S. a brat.

       In the circumstances of this case, Parmer has failed to prove he was

prejudiced by counsel’s failure to investigate.   Thus, counsel did not render

ineffective assistance.

       AFFIRMED.
