State of Iowa v. Donald Edward McIntyre

IN THE COURT OF APPEALS OF IOWA

No. 18-0266
Filed January 9, 2019

STATE OF IOWA,
Plaintiff-Appellee,

vs.

DONALD EDWARD McINTYRE,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Floyd County, Christopher C. Foy,

Judge.

The defendant appeals his conviction for robbery in the first degree.

AFFIRMED.

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

Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney

General, for appellee.

Considered by Potterfield, P.J., Doyle, J., and Danilson, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).
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POTTERFIELD, Presiding Judge.

Donald McIntyre appeals his conviction for robbery in the first degree. He

maintains (1) trial counsel provided ineffective assistance by failing to object to

hearsay statements, to the admission of shoeprint evidence, to instances of

prosecutorial misconduct, and to the definition of “armed” in a jury instruction; (2)

the court erred in including language pertaining to a knife in the dangerous-weapon

instruction; and (3) the trial court should have granted his motions for judgment of

acquittal and for new trial based on the weight of the evidence.

I. Background Facts and Proceedings.

On December 27, 2015, around 6:00 or 6:15 a.m.—while it was still dark

outside—Dennis Gifford returned home after driving to a local gas station to buy

the Sunday newspaper. As Gifford was standing in his driveway, a man he did not

recognize walked up to him and abruptly began hitting him in the head with a small

bat that had tape wrapped around it. The blows knocked Gifford to the ground,

and the man began to tussle with Gifford, announcing several times that Gifford

owed “big money.” During the struggle, Gifford was able to get on top of the man

for a short time. However, while Gifford was restraining the man and deciding what

to do next, the man was able to roll Gifford over and get back on top. From this

position, the man held the bat against Gifford’s neck and applied pressure; Gifford

almost lost consciousness. Gifford was able to retrieve some cash from his wallet,

which he then offered to the man. As the man reached to take the money, Gifford

got up and ran away. He locked himself in his cabinet shop and called 911. The

man fled.
 3

After officers arrived, Gifford provided a description of the man, stating he

was approximately six-foot tall, with a slender, unshaven face, and was wearing a

black jacket with a tied hood as well as a black stocking cap. The officers

recovered a twelve-inch knife and a long bat—approximately fourteen inches—

which had black electrical tape wrapped around it. The items were on the ground

near Gifford’s broken glasses, coffee cup, and newspaper. Officers also

photographed certain shoeprints in the snow they believed belonged to the

assailant.

Gifford went to the emergency room for treatment of his injuries. While he

was there, officers created a photo lineup with pictures of men who lived in the

area based on Gifford’s description of the man. The lineup included a picture of

McIntyre. McIntyre’s home is located about one block from Gifford’s, and there is

a direct line of sight from McIntyre’s front door to Gifford’s home. Gifford did not

make an identification.

The next day, Officer Bradley Bilharz was at a local gas station when he

saw McIntyre in the store, wearing his hood up with a stocking cap on. Officer

Billharz recognized McIntyre from the lineup and thought he matched the

description given by Gifford. He followed McIntyre outside and took a photo of a

boot print McIntyre left in the snow outside the gas station.

On January 5, 2016, officers executed a search warrant of McIntyre’s home.

The officers noted and photographed McIntyre’s large weapon collection, including

bats and knives with a similar electrical tape application as the weapons recovered

at the scene. Additionally, the officers noted a pair of boots sitting by McIntyre’s

door that they believed had the same tread as the prints at the scene. McIntyre
 4

denied the boots were his, stating they were too small for his feet, but he was able

to put them on when officers asked him to try. McIntyre’s wife, Michelle, claimed

the boots were hers and she was able to put them on, but she had to loosen the

laces in order to get them on over the foot brace she wears. When the boots were

first located by the door, the laces were pulled tight.

On January 26, Gifford was shown the same lineup he had been shown on

the day of the incident; the second time, he identified McIntyre as the assailant.

In November, the Department of Criminal Investigations issued a report

stating it had tested both the knife and bat recovered from the scene. The major

contributor of DNA from the swab from the knife handle was consistent with the

known DNA profile of McIntyre, with the probability of finding that profile in a

population of unrelated individuals less than one out of one hundred billion.

Additionally, the partial contributor of DNA from the swab taken from the handle of

the bat was consistent with the known DNA profile of McIntyre, with the probability

of finding that profile in a population of unrelated individuals less than one out of

seventy-six billion.

McIntyre was charged with robbery in the first degree.

A multi-day jury trial took place in late 2017. The State called Gifford, who

recounted the attack and again identified McIntyre as the attacker. The State also

called Thomas Downer, who testified that he had been with McIntyre off and on

the morning of the attack. He stated that after McIntyre and Michelle had a fight,

McIntyre started acting odd and saying “something about a job.” He testified that

a few days after the attack, McIntyre told him he had been at someone’s house,

there had been a struggle—during which time he had thrown a bat—and that he
 5

was missing a knife. On cross-examination, the State questioned Downer about

his change in testimony from his deposition, when he testified that at the time he

left McIntyre’s house, McIntyre was shoeless, wearing a pair of shorts and t-shirt,

and “didn’t look like he was about to be going anywhere.” Downer agreed his

testimony was different, stating his deposition testimony was a result of his and

McIntyre’s close relationship and “ha[ving] each other’s backs type of thing.”

Downer also agreed that between his deposition and trial testimony, he had

reached an agreement with the prosecutor’s office that if he cooperated and

testified truthfully at trial, his probation would not be revoked for an unrelated

charge.

McIntyre testified in his own defense. He maintained he was home sleeping

during the attack; he argued Gifford had mistaken his identify and the weapons

from the scene—though he had likely owned them at one time—were brought

there by one of the many people who had previously traded, purchased, or stolen

weapons from him. McIntyre called several witnesses who testified they believed

McIntyre was home asleep during the time of the attack, but no one was able to

testify that they had witnessed him doing such, though McIntyre’s wife testified she

saw him sleeping on the couch at 6:30 a.m.

McIntyre was convicted as charged and later sentenced to a term of

incarceration not to exceed twenty-five years. He appeals.

II. Discussion.

A. Ineffective Assistance of Counsel.

McIntyre maintains his trial counsel provided ineffective assistance in a

number of ways. We review claims of ineffective assistance de novo. See State
 6

v. Clay, 824 N.W.2d 488, 494 (Iowa 2012). McIntyre bears the burden to show

“(1) counsel failed to perform an essential duty; and (2) prejudice resulted.” Id. at

495 (citation omitted). Additionally, he asks that we look to the cumulative effect

of counsel’s errors to determine whether he was prejudiced by counsel’s errors.

See id. at 500 (“Iowa recognizes the cumulative effect of ineffective assistance of

counsel claims when analyzing prejudice under Strickland.”). As always when a

defendant makes a claim of ineffective assistance on direct appeal, “[i]f the

challenged actions of counsel implicate trial tactics or strategy, we will not address

the issue until fully developed.” Id. In such cases, we preserve the claim for

possible later consideration. See State v. Harris, 919 N.W.2d 753, 754 (Iowa

2018) (“If the development of the ineffective-assistance claims in the appellant brief

was insufficient to allow it consideration, the court of appeals should not consider

the claim, but it should not outright reject it.”).

1. Hearsay Testimony.

McIntyre contends his trial counsel provided ineffective assistance by failing

to object to inadmissible hearsay testimony by two witnesses.

Hearsay is a statement that, “(1) The declarant does not make while

testifying at the current trial or hearing; and (2) A party offers into evidence to prove

the truth of the matter asserted in the statement.” Iowa R. Evid. 5.801(c).

“Hearsay . . . must be excluded as evidence at trial unless admitted as an

exception or exclusion under the hearsay rule or some other provision.” State v.

Newell, 710 N.W.2d 6, 18 (Iowa 2006) (alteration in original) (citation omitted).

The first error McIntyre alleges is counsel’s failure to object to Officer

Bradley Billharz’s testimony that McIntyre’s friend and alibi witness Garrett
 7

Tegtmeier had told the officer, “Don [McIntyre] did it.” Specifically, Officer Billharz

testified:

Q. And then on January 7 of 2016, you did an interview of
Garrett Tegtmeier; is that correct? A. Yes.
Q. Did you do anything else as part of that interview? A. I just
asked him if he’d seen anything happening in the area or heard
anything about the assault. He did not hear or see anything about
what happened. At one point of our interview he goes Don did it.
And I said Don did what. And he didn’t say anything else then. So I
don’t know what he meant by that.

McIntyre maintains counsel breached an essential duty because the testimony was

meant to prove that McIntyre was the assailant and no exception to the hearsay

rule made the statement admissible.

The State concedes “that a hearsay objection at that point would likely have

been sustained, and the testimony would have been struck.” Yet the State urges

us to find that McIntyre was not prejudiced by the failure, arguing the State could

have got the same evidence properly admitted later by calling Officer Billharz in

rebuttal to Tegtmeier’s testimony that he believed McIntyre was home sleeping at

the time the incident occurred and did not have contrary information regarding

McIntyre’s whereabouts.

We have no information regarding why counsel did not object. And at the

time Officer Billharz made the hearsay statements, Tegtmeier had not yet testified

that he believed McIntyre was home at the time of the attack. We will not presume

counsel was engaged in a trial tactic. See State v. Tompkins, 859 N.W.2d 631,

643 (Iowa 2015) (concluding counsel could have objected to a statement and

preserving the issue for later adjudication); Clay, 824 N.W.2d at 500–01

(concluding record was insufficient to resolve ineffective-assistance-of-counsel
 8

claim on direct appeal when record was not developed as to trial counsel’s state

of mind with respect to counsel’s failure to object).

We also will not presume facts not in the record to establish that McIntyre

was not prejudiced. While the State might have been able to recall Officer Billharz

in order to offer the disputed testimony in rebuttal, we will not take for granted the

fact that the State would have done so. We acknowledge that “[i]n considering

whether the admission of hearsay evidence is reversible error, we have held that

notwithstanding the presumption of prejudice from the admission of such evidence,

the erroneously admitted hearsay will not be considered prejudicial if substantially

the same evidence is properly in the record.” Newell, 710 N.W.2d at 19. But that

is the not the situation here. Thus, we preserve this claim for possible

postconviction relief. State v. Johnson, 784 N.W.2d 192, 198 (Iowa 2010) (holding

it is the court’s role to determine whether a claim of ineffective assistance can be

addressed on direct appeal).

Next, McIntyre challenges his counsel’s failure to object to testimony from

the State’s witness Thomas Downer. Downer testified as follows:

Q. Did you check or look for him at his own residence? A.
Um, a few hours passed before I did. Um. And then I asked Michelle
if he was home because he was—because how he was acting. And
she said no.
....
Q. Now, Mr. Downer, was Donald McIntyre ever located that
morning? A. Um, it would have been early—early morning that he
was located. Michelle—Or he had gotten a phone call. I’d gotten a
phone call from Tegtmeier saying that [McIntyre] was at his house
when Tegtmeier got home.
Q. Did you learn what [McIntyre] had been doing while he was
missing. A. Um, no, not till after—it was after that. Or.
Q. Were you asked to go over to Tegtmeier’s house? A. Yes.
Q. By whom? A. Michelle. To pick up clothing of [McIntyre]’s.
 9

Q. Who—who actually picked up [McIntyre] from Tegtmeier’s?
A. It would have been Michelle.
Q. But you were asked to go over to Tegtmeier’s house to pick
up clothing? A. Yes.
Q. Did you do so? A. No.
Q. Did you go over to Tegtmeier’s house? A. Yes.

The State asserts that Downer’s testimony Michelle called him and asked him to

go to Tegtmeier’s to pick up clothing is not hearsay because it is not a statement.

See State v. Weaver, 608 N.W.2d 797, 805 (Iowa 2000) (“To be hearsay, an out-

of-court utterance must be a ‘statement.’”). We disagree. While the statement at

issue was allegedly initially posed as a question, there is an implied assertion that

McIntyre had discarded clothing at Tegtmeier’s home. See State v. Frederiksen,

No. 15-0844, 2016 WL 4051655, at *8 (Iowa Ct. App. July 27, 2016) (holding

evidence was properly excluded when it was offered to imply speaker’s knowledge

of some other fact, as “[t]he doctrine of implied assertion applies both to the literal

truth of the statement as well as any implied truth or implied assertions” (citing

State v. Dullard, 668 N.W.2d 585, 595–96 (Iowa 2003))); but see Weaver, 608

N.W.2d at 805 (“[T]he victim’s inquiry about her sister was not hearsay because it

was not an assertion.”). “If the expressed assertion is insincere, such as a

fabricated story, the implied assertion derived from the expressed assertion will

similarly be unreliable.” Dullard, 668 N.W.2d at 594. “Allowing inferences that

depend on the truth of the explicit assertion denied opposing counsel the

opportunity to cross-examine, which is what hearsay disallows.” Frederiksen,

2016 WL 4051655, at *8.

Additionally, counsel could have objected to Downer’s testimony that when

he called Michelle “right before daybreak” on the day of the attack and asked if
 10

McIntyre was home, she responded, “No.” In essence, Downer testified that

Michelle told him McIntyre was not home the morning of the attack, and the State

presumably wanted this testimony admitted to prove McIntyre was not at home—

in contrast to his and Michelle’s testimony.

Counsel also could have objected to Downer’s testimony that “[he]’d gotten

a phone call from Tegtmeier saying that [McIntyre] was at his house when

Tegtmeier got home.” The State urges us to find the statement falls within the

present sense impression exception to the hearsay rule. See Iowa R. Evid.

5.803(1) (providing “[a] statement describing or explaining an event or condition,

made while or immediately after the declarant perceived it” is not excluded by the

rule against hearsay). But it is not clear from Downer’s testimony whether

Tegtmeier’s call to Downer was contemporaneous with his getting home and

finding McIntyre there or if Tegtmeier later called Downer and reported McIntyre

had been at his home when he arrived earlier. The present sense impression “is

based upon the theory that the substantial contemporaneity of event and statement

negative the likelihood of misrepresentation.” State v. Flesher, 286 N.W.2d 218,

220 (Iowa Ct. App. 1979).

While we conclude counsel could have objected to the aforementioned

testimony, the record is not adequate for us to decide McIntyre’s claims of

ineffective assistance. It is possible Downer’s testimony Tegtmeier called him and

reported McIntyre was at his home was a contemporaneous call that falls within

the present sense impression. Additionally, Downer’s testimony about Michelle’s

request to pick up McIntyre’s clothing may have been admissible to explain

Downer’s conduct of going to Tegtmeier’s home. See State v. Mitchell, 450
 11

N.W.2d 828, 832 (Iowa 1990) (“When an out-of-court statement is offered, not to

show the truth of the matter asserted but to explain responsive conduct, it is not

regarded as hearsay.”).

2. Shoeprint Evidence.

Next, McIntyre asserts trial counsel provided ineffective assistance by

failing to object to the shoeprint evidence—including evidence of prints from the

scene, the photograph of the print made by McIntyre at the gas station, and a

photograph of the tread of the boots found at McIntyre’s home. He argues the

State was not required to establish the proper foundation for the admission of the

shoeprint evidence and he was prejudiced by this failure.

McIntyre asserts the State was required to “[e]stablish that similarities

existed between the distinctive characteristics exhibited by the defendant and the

characteristics exhibited by the maker of the crime scene shoe prints.” But the

present facts are distinguishable from each of the cases McIntyre relies upon.

In State v. Mark, the police located a number of shoeprints related to a

murder investigation. 286 N.W.2d 396, 407 (Iowa 1979). The State determined

the prints were made by a size eleven men’s Converse (500) tennis shoe, but the

shoes that made the prints were never found. Id. at 408. “Because the shoes

were never found, the State was unable to compare the shoes to the prints made.

The State focused upon the physical characteristics of the individual making the

prints, and compared those distinctive characteristics to those of the defendant.”

Id. The doctor of podiatry who testified as an expert examined the prints and the

defendant’s gait, ultimately opining that “all of the characteristics exhibited by

defendant were reflected in the shoe prints found at the scene of the crime.” Id.
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The doctor would not testify it was the defendant who had left them, but said “it

was his opinion that the likelihood of two individuals possessing the same

combination of distinctive characteristics was ‘rather low.’” Id.

Here, an expert did not opine on the likelihood McIntyre made the prints

found at Gifford’s house. Rather, pictures of the prints found at Gifford’s home and

the gas station, as well as a photograph of the sole of the boots found at McIntyre’s

home were admitted into evidence for the jury to determine whether the boots

could have made the prints found at the scene. Through cross-examination,

McIntyre’s attorney was able to minimize the significance of the evidence by asking

questions regarding how common the boots were and whether similar boots were

sold locally. Additionally, no one asserted that the specific boots found at

McIntyre’s were the ones that made the prints at the scene; witnesses opined the

boots could have made the prints as the tread on the boots appeared to match the

tread from the prints found at the scene.

In State v. Signon, the court ruled the evidence of a shoeprint found on a

piece of paper at the scene of a burglary was not admissible because even though

the print was made by the same type of shoe the defendant was wearing at the

time of his arrest, there was no evidence when the print was made. 261 N.W. 538,

539–40 (Iowa 1935). In this case, the shoeprint at the scene was made by an

impression in snow. While we do not have any evidence regarding how recently

the snowfall occurred, the present facts are distinguishable because of the

impermanent nature of snow—compared to the paper found in Signon.

Additionally, there was more than one print, and officers were able to track a

number of footprints from near the spot of the scuffle. An officer testified, “And I
 13

[saw] where the subject just wasn’t walking from the scene. They were like

somebody was running at a good pace. There was a large distance in between

the footprint. And they went to the northwest from the scene area.” Gifford’s wife,

Glenda, testified she helped officers identify the area where she would expect to

find shoeprints from her family and the area where only she usually walked; it was

in the second area that police found the larger prints made by someone apparently

fleeing.

Moreover, the shoeprint evidence is not the State’s only evidence tying

McIntyre to the scene. Gifford identified McIntyre in a photo lineup and then ten

months later, the crime lab identified DNA consistent with McIntyre’s on both the

knife and bat recovered from the scene. “[T]he requirements for admissibility of

footprint identification testimony have been held to be less stringent where there

is other evidence connecting the defendant with the crime scene.” State v.

Campbell, 326 N.W.2d 350, 354 (Iowa 1982).

McIntyre has not established that his counsel breached an essential duty

by not objecting to the admission of the shoeprint evidence.

3. Prosecutorial Misconduct.

McIntyre maintains his trial counsel provided ineffective assistance by

failing to object to a number of statements made by the prosecutor during rebuttal

closing arguments that amounted to prosecutorial misconduct.1

1 Claims relating to a prosecutor’s behavior at trial have historically been referred to as
prosecutorial misconduct. However, our supreme court adopted a distinction “between
incidences of prosecutorial error and prosecutorial misconduct” and noted “[a] prosecutor
who has committed error should not be described as committing misconduct.” State v.
Schlitter, 881 N.W.2d 380, 393–94 (Iowa 2016). We apply the same multi-factor test
outlined in State v. Graves, 668 N.W.2d 860 (Iowa 2003) either way. Id. at 394. Both
 14

Because McIntyre raised the claim of prosecutorial misconduct under the

framework of ineffective assistance, “our first step is to assess whether the record

demonstrates, as a matter of law, the existence or absence of a meritorious due

process violation.” Graves, 668 N.W.2d at 869. “Thus, we must consider whether

the prosecutor was guilty of misconduct in the particulars identified by [the

defendant] and whether the record shows [the defendant] was prejudiced, i.e.,

denied a fair trial.” Id. If McIntyre is able to establish both elements of his due

process claim, he “will have proved that the assertion of such claim at the time of

the prosecutor’s misconduct would have had merit.” Id. at 870. Only then do we

proceed to consider whether his claim can meet the requirements of ineffective

assistance. See id.

“If it is determined defense counsel failed to raise a meritorious issue, we

must then consider whether an attorney performing within the range of normal

competency would have made an objection and/or requested a mistrial.” Id. “If

there is no possibility that trial counsel’s failure to act can be attributed to

reasonable trial strategy, then we can conclude the defendant has established that

counsel failed to perform an essential duty.” Id. “If trial counsel’s conduct might

be characterized as a reasonable trial tactic, then [the] ineffective-assistance claim

must be preserved for trial in a possible postconviction relief action.” Id. “[S]hould

the defendant’s claim survive to this point, [we] assess whether the record permits

a determination of the prejudice prong of the ineffective-assistance claim.” Id.

McIntyre and the State use the term “prosecutorial misconduct” throughout, so we do the
same.
 15

We must consider each of the comments McIntyre complains of to

determine whether his claim has merit. Misconduct occurs when the prosecutor

seeks to tarnish defendant’s credibility or boost that of the State’s witnesses

“through unnecessary and overinflammatory 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). As we undertake our review, we note that each of the

comments took place during closing argument and are guided by “the principle

that, in closing arguments, counsel is allowed some latitude.” Id. at 554 (altered

for readability).

First, McIntyre asserts it was improper for the prosecutor, after listing

physical evidence that supported Gifford’s testimony, to state, “Again, evidence

that corroborates what he’s saying.” Second, McIntyre challenges the prosecutor’s

statement, “Also [Gifford’s] identification of [McIntyre] has been consistent.”

McIntyre next challenges the statement, “[Gifford] knows that [McIntyre’s] the man

who attacked him. There’s no question about that.” Similarly, he challenges the

statement, “Mr. Gifford only wants the man who attacked him to be held

responsible. And that man is the defendant. He knows who attacked him.”

Additionally, McIntyre challenges some of the prosecutor’s statements to

the jury about Downer’s testimony.

[Defense counsel] tried to characterize like the State has
bribed [Downer] to say something. But [Downer] testified that the
State never told him what to say. In fact, the State told him to tell the
truth.
And he didn’t get out of prison. That was never even on the
table.
He originally told you he had a 45-day jail sentence and he
did serve nine days of the sentence.
He also didn’t say he’s scot-free. He’s still on probation.
 16

And so it’s not that he was bribed.
And he was never told what to say.
In fact, if I was going to feed somebody a story to tell, I would
have made up a lot better story than what he gave me.
There’s still gaps. There’s still holes.
And so he wasn’t fed a story. He’s telling the truth.
And there’s facts and things that he was asked questions
about that could have helped the State’s case and he said I don’t
know or he would say no.
He was telling me the truth when he testified.

(Emphasis added.)

McIntyre argues these statements establish that the prosecutor misstated

facts, expressed her personal beliefs, and improperly discussed the credibility of

various witnesses. See Id. at 554 (“[C]ounsel has no right to create evidence or

misstate facts.”); Graves, 668 N.W.2d at 874 (“A prosecutor may not . . . express

his or her personal beliefs.”); State v. Martens, 521 N.W.2d 768, 772 (Iowa Ct.

App. 1994) (“A prosecutor may not . . . express or imply his or her personal belief

in the truth or falsity of the testimony of a witness.”).

First, we consider the prosecutor’s statement that Gifford’s identification of

McIntyre has been consistent. McIntyre takes issue with this as a misstated fact

because Gifford did not identify McIntyre the first time the photograph lineup was

presented to Gifford. We do not understand the prosecutor’s statement to be a

misstatement or misleading; rather, we believe the prosecutor was emphasizing

the point that Gifford—while unable to first identify his attacker—never identified

someone other than McIntyre. The description Gifford gave police was used to

create the lineup, which included McIntyre; Gifford identified McIntyre as the

attacker the second time he saw the lineup, which DNA testing several months

later seemed to corroborate; and Gifford identified McIntyre again from the witness
 17

stand. Additionally, the prosecutor’s statement there was “no question” Gifford

knows that McIntyre’s the one who attacked him was made after the prosecutor

listed each of the above pieces of evidence and again reiterated Gifford had never

identified a person other than McInytre as the perpetrator. See Graves, 668

N.W.2d at 874 (“A prosecutor ‘is entitled to some latitude during closing argument

in analyzing evidence admitted in trial.’ Moreover, a prosecutor may argue the

reasonable inferences and conclusions to be drawn from the evidence.” (citation

omitted)).

We see no issue with the prosecutor’s statement that evidence recovered

at the scene corroborates Gifford’s statements about how the attack occurred. The

prosecutor was not expressing a personal belief but rather was pointing to physical

evidence that supported Gifford’s testimony. See Carey, 709 N.W.2d at 557

(determining the prosecutor neither relied upon her personal opinion nor vouched

for the victim’s credibility when she “highlight[ed] for the jury the evidence in the

record that show the inconsistent and evasive nature of the defendant’s testimony”

by comparing “his testimony with that of victim’s, whose story was unchanging,”

which was proper). “[M]isconduct does not reside in the fact that the prosecution

attempts to tarnish defendant’s credibility or boost that of the State’s witnesses;

such tactics are not only proper, but part of the prosecutor’s duty.” Id. at 556.

Finally, we consider the prosecutor’s statement that Gifford “only wants the

man who attacked him to be held responsible. And that man is the defendant. He

knows who attacked him.” When placed in context, the prosecutor was responding

to McIntyre’s claim that he had been misidentified or set up, emphasizing that
 18

Gifford did not have a motive to implicate McIntyre if he was not the attacker. In

full, the prosecutor argued:

And when we talk about motives, what motive does Dennis
Gifford have to make up the story. What motive does he have to try
to frame [McIntyre] if that’s not the man who attacked him. He didn’t
know him before then. There’s been no evidence, no testimony that
he had some sort of ax to grind or would want [McIntyre] to get in
trouble. Quite the opposite. Mr. Gifford only wants the man who
attacked him to be held responsible. And that man is the defendant.
He knows who attacked him.

If defense counsel had objected to any of the prosecutor’s statements

regarding Gifford and his testimony, the objections would not have been sustained.

Thus, McIntyre cannot prove breach of duty. See Tompkins, 859 N.W.2d at 637

(“[W]here a claimant alleges counsel’s failure to pursue a particular course

breached an essential duty, there is no such duty when the suggested course

would have been meritless.”).

Next, we consider McIntyre’s arguments about the prosecutor’s statements

regarding Downer’s testimony, including twice asserting Downer told the truth

when he testified at trial and that she would have made up a better story for him if

she had told him how to testify. While a prosecutor may not personally vouch for

the credibility of a witness, “a prosecutor is still free ‘to craft an argument that

includes reasonable inferences based on the evidence and . . . when a case turns

on which of two conflicting stories is true, [to argue that] certain testimony is . . .

believable.’” Graves, 668 N.W.2d at 876 (alteration in original) (citation omitted).

Moreover, the prosecutor’s statements were directly responsive to statements

made by defense counsel during his closing, when he stated:

Thomas Downer. We submit that his testimony should be
discounted because he lied under oath by his own admission.
 19

At his deposition. Basically everything he said on his
deposition, most of it was a lie.
It’s hard to figure out with a guy like that whether he’s lying
then or whether he’s lying now.
Plus he was bribed in essence with substantial jail time. You
know, possibly prison time he got out of on his probation revocation.
And as a result of that, he changes his story.
So I think you have to view with great suspicion the testimony
of, first of all, somebody that’s getting out of jail and prison time in
return for their testimony.
And, second of all, somebody that is a proven liar that has
admitted that he has lied.
So we—we feel that he made up that story. He’s lying to save
his own skin.

“A prosecutor is not required to sit mute and let the defendant’s interpretation of

evidence go unchallenged.” State v. Thornton, 498 N.W.2d 670, 676 (Iowa 1993).

Under these circumstances, we cannot say the prosecutor’s statements were

improper.

Because McIntyre cannot prove that the prosecutor’s statements violated

his right to due process, he cannot establish that trial counsel providing ineffective

assistance when he allowed the statements to pass without objection.

4. Definition of “Armed” in Jury Instruction.

McIntyre maintains his trial counsel provided ineffective assistance when

he failed to object to the court’s definition of “armed” in a jury instruction. The

instruction at issue states:

As used in these instructions, a “dangerous weapon” is any
device or instrument designed primarily for use in inflicting death or
injury, and when used in its designed manner is capable of inflicting
death. It is also any sort of instrument or device actually used in such
a way as to indicate the user intended to inflict death or serious injury,
and when so used is capable of inflicting death. You are instructed
that a knife with a blade exceeding five inches in length is, by law, a
dangerous weapon.
 20

For purposes of these instructions, a person is “armed” with a
dangerous weapon when it is in his possession and available for
immediate use.

On appeal, McIntyre maintains the definition of “armed” incorrectly states the law

and creates confusion. He argues the instruction needed to include a mens rea

component, asserting the jury should have been instructed that to find McIntyre

was “armed,” they must find he had a conscious and deliberate keeping of the

dangerous weapon on his person. See State v. Ray, 516 N.W.2d 863, 865 (Iowa

1994).

In order to be successful under this argument, McIntyre must establish a

reasonable probability the jury made findings of fact that produced a conviction

under this instruction but would not have under the instruction he now maintains

should have been given. See State v. Hanes, 790 N.W.2d 545, 551 n.2 (Iowa

2010). McIntyre has made no such argument. He has not pointed out any

evidence in the record that would support the jury finding that McIntyre was the

assailant but that he did not know he was carrying a twelve-inch knife on his

person. Additionally, McIntyre has made no argument regarding the alternative—

that the jury could have concluded the bat was a dangerous weapon and McIntyre

had deliberately and consciously kept the bat on his person.

Because this argument is not sufficiently developed for our consideration,

we preserve this claim of ineffective assistance for a later date. See Harris, 919

N.W.2d at 754.

5. Sufficiency of the Evidence.

McIntyre challenges the sufficiency of the evidence to support his

conviction, arguing there is not substantial evidence to identify him as the
 21

perpetrator of the robbery. He did not raise the argument with the rest of the

ineffective-assistance claims, but because trial counsel failed to preserve the

argument he now raises with a specific motion for judgment of acquittal,2 see State

v. Brubaker, 805 N.W.2d 164, 174 (Iowa 2011), and McIntyre asked us

alternatively to consider the claim under the ineffective-assistance framework, we

do so now.

We have little trouble finding there is substantial evidence to support that

McIntyre was the perpetrator. Gifford identified McIntyre as the assailant, both in

a photograph lineup and from the witness stand. See State v. Hildreth, 582 N.W.2d

167, 170 (Iowa 1998) (“We find that the alleged victim’s testimony is by itself

sufficient to constitute substantial evidence of defendant’s guilt.”). Additionally,

later DNA testing of the bat and knife recovered from the scene established that

DNA consistent with McIntyre’s was on both weapons. Because any motion for

judgment of acquittal based on sufficiency of the evidence to support identity would

have been denied, trial counsel was not ineffective for failing to raise the issue.

6. Cumulative Prejudice.

2 McIntyre asserts his argument has been preserved because McIntyre “made a motion
for judgment of acquittal which alleged the specific grounds that are alleged on appeal
and specified which elements of the crime that were insufficiently supported by the
evidence, which the court overruled.” In fact, at the close of the State’s evidence, McIntyre
stated:
Well, the first motion is the Motion for Directed Verdict slash Motion
to Dismiss on the grounds that the evidence taken as a whole and viewed
in the light most favorable to the State—or to the State does not establish
guilt beyond a reasonable doubt.
While we treat a motion for directed verdict as one for judgment of acquittal, see State v.
Adney, 639 N.W.2d 246, 249 n.2 (Iowa Ct. App. 2001), McIntyre did not renew his
motions after the defense rested and he never made a more specific comment regarding
his challenge to the sufficiency of the evidence.
 22

We are to evaluate a defendant’s claims of ineffective assistance by

determining if the cumulative effect of the alleged errors resulted in Strickland

prejudice, but this record is inadequate for us to do so here. Thus, we preserve

for later adjudication McIntyre’s claims of ineffective assistance regarding

counsel’s failure to object to hearsay testimony and to the definition of armed within

the dangerous-weapon instruction. See State v. Lepon, No. 16-0117, 2017 WL

4049829, at *13 (Iowa Ct. App. Sept. 13, 2017) (preserving defendant’s multiple

claims of ineffective assistance where inadequate record prevented the court from

resolving a number of claims on direct appeal in order to properly evaluate the

cumulative prejudicial effect); State v. Keys, No. 15-1991, 2017 WL 1735617, at

*9 (Iowa Ct. App. May 3, 2017) (same).

B. Inclusion of “Knife Language” in Jury Instruction.

McIntyre maintains the trial court erred when it concluded there was

sufficient evidence the attacker was armed with a knife to instruct the jury, “You

are instructed that a knife with a blade exceeding five inches in length is, by law, a

dangerous weapon.” “Alleged errors in the submission or refusal to submit jury

instructions are reviewed for correction of errors at law.” State v. Tipton, 897

N.W.2d 653, 694 (Iowa 2017).

We agree with the trial court there is sufficient evidence to instruct the jury

that a knife over five inches long is per se a dangerous weapon. Gifford testified

that during the scuffle with his attacker, he “felt like there was some leather there

too” and though he never saw a knife, “while [he] had ahold of the stick, [he] could

feel something leather also.” When officers arrived on the scene, Gifford showed

them where the struggle took place; the officers noted Gifford’s eyeglasses, his
 23

spilled cup of coffee, and a newspaper blowing in the wind. In the same vicinity,

they found “a club laying on the ground, about a 15-inch bat. . . . There was a knife

laying there too and a sheath. The knife was laying next to the club.” Based on

this evidence, the jury could infer the knife was brought to the scene by the

attacker, and if the jury determined he was armed with it, it was necessary for the

jury to be advised the twelve-inch knife recovered at the scene satisfied the

definition of a dangerous weapon. See Alcala v. Marriott Int’l, Co., 880 N.W.2d

699, 707 (Iowa 2016) (“Iowa law requires a court to give a requested jury

instruction if it correctly states the applicable law and is not embodied in other

instructions.” (emphasis added) (citation omitted)).

C. Weight of the Evidence.

McIntyre argues the trial court abused its discretion when it denied his

motion for new trial based on the weight of evidence not supporting the jury’s

verdict. See State v. Nitcher, 720 N.W.2d 547, 559 (Iowa 2006) (providing we

review weight-of-the-evidence claims for abuse of discretion because of the trial

court’s “broad discretion in ruling on a motion for new trial”). In raising this

argument, McIntyre again focuses on whether the evidence supports that he was

the perpetrator of the robbery.

“Unlike the sufficiency-of-the-evidence analysis, the weight-of-the-evidence

analysis is much broader in that it involves the questions of credibility and refers

to a determination that more credible evidence supports one side than the other.”

Id. The court made credibility findings in reaching its decision to deny McIntyre’s

motion, stating:
 24

[The court] also finds that the—the greater weight of the
evidence actually supports the verdict that the jury had reached.
While Mr. McIntyre did offer alibi that he wasn’t—it wasn’t him
at the scene because he was someplace else, he was in his home,
the alibi witnesses themselves were not consistent.
And ultimately it was the jury’s province to make a
determination of which testimony they found to be most credible.
And given the opportunity Mr. Gifford had to observe and see
his attacker, even though the lighting was— was somewhat faint
given the time of day and the distance that this took place from any
electronic lamps or lights, he—Mr. Gifford had a good opportunity to
observe his—his attacker.
If I recall, one of the distinguishing features of his attacker was
the eyes and just the fact that the eyes of his attacker were—were
somewhat set in to the attacker’s face. I don’t know if he specifically
used the word sunken, the eyes were sunken, but I—that was the
impression the court got from Mr. Gifford’s testimony. I do think that’s
a distinguishing feature of Mr. McIntyre, that his eyes are set back
distinctively.
Mr. Gifford was able to identify Mr. McIntyre in a photo lineup
that was shown to him after he had an opportunity to address his
immediate injuries from the attack.
Just on balance, the Court finds that the greater weight of the
evidence, does support the verdict.

(Altered for readability). Based on our review of the record, “[t]his is not the rare

case in which the verdict runs contrary to the weight of the evidence.” State v.

Benson, 919 N.W.2d 237, 243 (Iowa 237). Thus, we cannot say the district court

exercised its discretion on grounds clearly untenable or to an extent unreasonable

when it denied McIntyre’s motion for new trial. Id. at 241.

III. Conclusion.

McIntyre did not establish his claims for ineffective assistance, that there

was insufficient evidence to instruct the jury the knife recovered at the scene meets

the legal definition of a dangerous weapon, nor that the verdict is contrary to the

weight of the evidence. Thus, we affirm. We preserve for postconviction relief his
 25

claims trial counsel was ineffective for failing to object to instances of hearsay

testimony and the definition of “armed” within a jury instruction.

AFFIRMED.