IN THE COURT OF APPEALS OF IOWA

No. 18-0098

Filed May 15, 2019

STATE OF IOWA,

Plaintiff-Appellee,

vs.

LARRY DEANDRE RATLIFF JR,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Polk County, William P. Kelly, Judge.

Larry Ratliff Jr. appeals his convictions of murder in the first degree, willful 

injury causing serious injury, and assault with intent to inflict serious injury. 

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

Mark C. Smith, State Appellate Defender (until withdrawal), and Theresa R. 

Wilson, Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, and Kyle Hanson, Assistant Attorney 

General, for appellee.

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

A jury convicted Larry Ratliff Jr. of first-degree murder, willful injury causing 

serious injury, and assault with intent to inflict serious injury. On appeal, Ratliff 

challenges the sufficiency of the evidence supporting his convictions. He also 

asserts his trial counsel provided ineffective assistance by failing to object to faulty 

jury instructions. Ratliff also contends the district court abused its discretion in 

admitting cumulative and unduly prejudicial photographs into evidence. 

I. Background Facts and Proceedings

Upon the evidence presented at trial, a reasonable jury could make the 

following factual findings. During the late evening hours of April 11, 2017, police 

responded to a call of shots fired in the 4000 block of Fagen Drive in Des Moines. 

When officers arrived, they discovered a vehicle in a parking lot with two injured 

individuals, Antonio Quinn and Michael James Jr. James was shot in the arm but 

able to walk around and speak with officers. Quinn was seated in the vehicle’s 

driver’s seat and covered in blood from gunshot wounds to his chest, arm, and 

neck. Officers noted three bullet holes to the vehicle in the driver’s side windshield, 

rear-view mirror, and A-pillar. Quinn ultimately succumbed to his injuries. During 

their investigation, police determined Molly Peter drove Ratliff to the parking lot 

where he was to meet Quinn for a drug transaction. Ratliff took an AK-47 type 

semiautomatic rifle with him. The trial testimony differs as to what occurred after 

the two vehicles arrived at the parking lot. 

During the initial police investigation, Ratliff provided multiple and 

inconsistent accounts of his whereabouts on the night of the shooting, initially 

claiming no knowledge of the shooting or the gun, and he was out of town that 
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entire evening. Once police confronted Ratliff that the gun believed to be the 

murder weapon was found hidden in his vehicle and his phone records did not 

match his account of his whereabouts, Ratliff changed his version of events 

several times. His versions included claiming the person who actually committed 

the crime gave him the gun after the shooting in order to dispose of it and he only 

acted as a lookout for the actual shooter. At trial, Ratliff admitted he had received 

the gun prior to the shooting and took it along with him to the parking lot for a drug 

transaction where he was to sell cocaine and ecstasy. He asked Peter to drive 

him and, after arriving at the parking lot, he exited the vehicle and went to speak 

with Quinn, who sat in the driver’s seat of his vehicle. Ratliff and Quinn discussed 

the drug transaction, and Ratliff asked Quinn to pay him in smaller bills. Ratliff 

then claimed he believed Quinn was reaching for a weapon so he grabbed his gun 

and pointed it at Quinn. Quinn then grabbed for the gun and wrestled with him for 

it, which Ratliff claimed caused the gun to accidentally fire. He then left the scene. 

After his arrest, Ratliff attempted to send a note to Peter asking for witnesses to 

prove another person committed the shooting and a letter telling her “don’t let them 

bully you into saying nothing. Remember the best comment is no comment.”

James’s version was that he and Quinn went to the parking lot in order for 

Quinn to sell ecstasy that James had obtained for him. He saw Ratliff exit the 

passenger side of the vehicle that pulled up alongside Quinn’s vehicle and walk 

over to the driver-side window, where Quinn was located. James recognized and 

was familiar with Ratliff but Quinn was not. After a discussion about the money 

and the drugs, Ratliff did ask for change, after which Ratliff claimed he needed to 

get something from the other vehicle. James saw Ratliff reach into the passenger-
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side window and turn back with a rifle. Ratliff pointed the gun at Quinn and stated 

“Let me get all of that.” Quinn then grabbed the gun barrel and tried to wrestle it 

away from Ratliff. At that point, James reached for the door handle on his side of 

the vehicle and heard a shot. After looking back, he saw Quinn lying in his seat, 

holding his body and gasping for air. Quinn told James he could not move. James 

then saw Ratliff at the front of the vehicle where he shot again. At that point, James 

exited the vehicle and ran away. When he turned around, he saw Ratliff get in the 

other vehicle and leave the scene. James ultimately admitted to police that he 

knew who Ratliff was and knew there was going to be a drug transaction. 

The State charged Ratliff and Peter in a joint trial information with firstdegree murder, first-degree robbery, and attempt to commit murder.1

 A jury trial 

was held in December 2017, during which Ratliff testified on his own behalf. The 

jury returned verdicts finding Ratliff guilty of first-degree murder and two lesserincluded charges: willful injury causing serious injury to Quinn and assault with 

intent to inflict serious injury to James. The court subsequently sentenced Ratliff 

to life in prison on the murder charge. As noted, Ratliff appeals.

II. Analysis

A. Sufficiency of the Evidence

Ratliff contends the jury verdicts were not supported by sufficient evidence. 

We review sufficiency-of-evidence challenges for correction of errors at law. State 

v. Ramirez, 895 N.W.2d 884, 890 (Iowa 2017). “[W]e will uphold a verdict if 

 

1 Ratliff was also charged with possession of a firearm by a convicted felon. This charge 

was severed from the other counts for purposes of trial. After trial, the court dismissed the 

charge against Ratliff without prejudice based upon the State’s motion. The trials of Ratliff 

and Peter were also severed.
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substantial evidence supports it.” Id. “Evidence is considered substantial if, when 

viewed in the light most favorable to the State, it can convince a rational jury that 

the defendant is guilty beyond a reasonable doubt.” Id. (quoting State v. Reed, 

875 N.W.2d 693, 704–05 (Iowa 2016)). “The evidence must do more than raise 

‘suspicion, speculation, or conjecture’ regarding defendant’s guilt.” State v. 

Randle, 555 N.W.2d 666, 671 (Iowa 1996) (quoting State v. Barnes, 204 N.W.2d 

827, 829 (Iowa 1972)). “We consider all the record evidence, not just the evidence 

that supports the verdict.” State v. Biddle, 652 N.W.2d 191, 197–98 (Iowa 2002).

Ratliff focuses his challenges on the intent element of each offense, arguing 

the State failed to establish the requisite intent. 

1. First-Degree Murder—Malice Aforethought

To convict Ratliff of first-degree murder, the instructions required the jury to 

find: (1) Ratliff shot Quinn; (2) Quinn died as a result of being shot; (3) Ratliff acted 

with malice aforethought; and (4) Ratliff “acted willfully, deliberately, 

premeditatedly and with a specific intent to kill [Quinn].” Ratliff argues the evidence 

is insufficient to prove he acted with the requisite malice aforethought and specific 

intent.

As an initial matter, the State argues Ratliff did not preserve error on his 

claim of insufficient evidence on this element. Ratliff urges us to consider the 

challenge as a claim of ineffective assistance of counsel in the alternative.

Ratliff orally moved for judgment of acquittal after the State completed its 

case-in-chief, arguing:

Specifically our client is charged with three different counts: 

First-degree murder, attempted murder, and robbery in the first 

degree. And the State’s evidence has failed to establish the requisite 
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intent that is needed for each of those crimes. Each of those crimes 

has a specific intent element to it, and the State has failed to 

establish that.

. . . .

But they have not proven that our client’s actions that night 

support its theory that he had the specific intent to commit a robbery 

and attempted murder or murder in the first degree.

The court denied the motion, concluding, “The evidence presented by the 

State as to each essential element of the crime has been substantial.” Ratliff 

renewed his motion at the end of the trial but before the jury began its deliberations 

based upon the same arguments as the earlier motion. The court again denied 

the motion.

“[A] defendant’s motion for judgment of acquittal only serves to preserve 

error on a claim of insufficient evidence for appellate review in a criminal case if it 

‘identifies the specific grounds raised on appeal.’” State v. Henderson, 908 N.W.2d 

868, 875 (Iowa 2018) (quoting State v. Brubaker, 805 N.W.2d 164, 170 (Iowa 

2011)); accord State v. Ross, 845 N.W.2d 692, 700 (Iowa 2014) (“Trial counsel is 

required to make a specific objection in his or her motion for judgment of acquittal 

in order to preserve error.”). However, “[i]neffective-assistance-of-counsel claims 

are an exception to the traditional error-preservation rules.” State v. Fountain, 786 

N.W.2d 260, 263 (Iowa 2010).

Ratliff’s trial motion did not include an argument about the maliceaforethought element of the first-degree murder charge. Accordingly, Ratliff’s 

“motion for judgment of acquittal did not preserve the specific arguments he is now 

making for the first time on appeal.” State v. Crone, 545 N.W.2d 267, 270 (Iowa 

1996). Nevertheless, Ratliff “argues in the alternative that his trial counsel was 
7

ineffective and we can reach the sufficiency-of-evidence issue that way.” 

Henderson, 908 N.W.2d at 868. 

Ineffective-assistance-of-counsel claims are reviewed de novo. State v. 

Harrison, 914 N.W.2d 178, 188 (Iowa 2018). Ratliff must show “by a 

preponderance of the evidence both that counsel failed an essential duty and that 

the failure resulted in prejudice.” Id. (quoting State v. Schlitter, 881 N.W.2d 380, 

388 (Iowa 2016)). “[C]ounsel fails his or her essential duty by ‘perform[ing] below 

the standard demanded of a reasonably competent attorney.’” Id. (quoting 

Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001)). “[W]e begin with the 

presumption that the attorney performed competently” and “avoid secondguessing and hindsight.” Ledezma, 626 N.W.2d at 142. Ratliff “must demonstrate 

‘that there is a reasonable probability that, but for counsel’s unprofessional errors, 

the result of the proceeding would have been different.’” Id. at 143 (quoting 

Strickland v. Washington, 466 U.S. 668, 964 (1984)).

Ratliff claims the State failed to prove he acted with malice aforethought, 

arguing he did not mean or desire to harm anyone. He claims the shooting of 

Quinn was accidental, contending that if Quinn had not grabbed for the gun, the 

gun would not have accidentally gone off.

The court instructed the jury:

“Malice” is a state of mind which leads one to intentionally do 

a wrongful act to the injury of another or in disregard of the rights of 

another out of actual hatred, or with an evil or unlawful purpose. It 

may be established by evidence of actual hatred, or by proof of a 

deliberate or fixed intent to do injury. It may be found from the acts 

and conduct of the defendant, and the means used in doing the 

wrongful and injurious act. Malice requires only such deliberation 

that would make a person appreciate and understand the nature of 
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the act and its consequences, as distinguished from an act done in 

the heat of passion. 

The court further instructed, “‘Malice aforethought’ is a fixed purpose or 

design to do some physical harm to another which exists before the act is 

committed. It does not have to exist for any particular length of time.” The 

instructions also provided, “Malice aforethought maybe inferred from the 

defendant’s use of a dangerous weapon.” Accord State v. Green, 896 N.W.2d 

770, 781 (Iowa 2017).

Ratliff does not dispute that he brought a semiautomatic, AK-47 type of gun 

to the intended transaction in the parking lot, first leaving it in the car, then after an 

encounter with Quinn, he quickly returned to the car and pointed the gun at Quinn. 

The use of a gun supports the inference of malice aforethought. Further, while 

Ratliff claims the shooting was accidental, “if the jury rejected [Ratliff’s] [accidentalshooting] argument, it could, but was not required to, infer [Ratliff] acted with malice 

aforethought from his use of a dangerous weapon.” Id. We find the record, when 

viewed in the light most favorable to the State, contained substantial evidence for 

a rational jury to conclude Ratliff acted with malice aforethought. His claim of 

ineffective assistance of counsel therefore fails.

2. First-Degree Murder—Specific Intent

Ratliff next contends the State failed to prove he specifically intended to kill 

Quinn in a willful, premeditated, and deliberate manner. 

The court instructed the jury that “willful” meant “intentional or by fixed 

design or purpose and not accidental”; “To deliberate” meant “to weigh in one’s 

mind, to consider, to contemplate, or to reflect”; and to “premeditate” is to think or 
9

ponder upon a matter before acting. The court further instructed the jury that 

“deliberation and premeditation need not exist for any particular length of time 

before the act.” The court also instructed the jury:

“Specific intent” means not only being aware of doing an act 

and doing it voluntarily, but in addition, doing it with a specific 

purpose in mind. 

Because determining the defendant’s specific intent requires 

you to decide what he was thinking when an act was done, it is 

seldom capable of direct proof. Therefore, you should consider the 

facts and circumstances surrounding the act to determine the 

defendant’s specific intent. You may, but are not required to, 

conclude a person intends the natural results of his acts.

“Premeditation may be shown through evidence of . . . the nature of the 

killing including the use of a deadly weapon combined with an opportunity to 

deliberate.” State v. Buenaventura, 660 N.W.2d 38, 48 (Iowa 2003). “[T]he law 

does not require any minimum amount of time to premeditate and a few minutes 

are certainly adequate.” Id. at 49. “Premeditation [can be] shown by the nature of 

the crime and the defendant’s actions afterwards.” Id.

“Admissions made by a defendant are evidence.” State v. Cox, 500 N.W.2d 

23, 25 (Iowa 1993). The “conduct of the defendant subsequent to a crime, 

including fabrication,” can constitute an implied admission, “when such conduct 

indicates a consciousness of guilt.” Id. Further, “[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. 

Here, the evidence showed and Ratliff does not dispute that he brought a 

semiautomatic, AK-47 type gun to the parking lot. Further, Ratliff left the gun in 

Peter’s vehicle when he initially approached Quinn’s vehicle. However, he left it 
10

on the passenger seat. After some discussion about the drug deal, Ratliff quickly 

returned to Peter’s vehicle, grabbed the gun, and pointed it at Quinn. Ratliff does 

not dispute those facts. While Ratliff claimed that the shots were the result of 

Quinn grabbing and fighting over the gun, multiple witnesses testified that Ratliff 

fired at least one shot into the vehicle while standing near the front of it, without 

any interference by anyone. A firearms expert also testified that the gun was not 

a fully-automatic weapon, so the gun required a manual pull and release of the 

trigger for each shot. The expert further testified the gun did not have a “hair 

trigger,” which would only require a light trigger pull to shoot the gun. Finally, 

Ratliff’s actions after the shooting, including telling police multiple stories about the 

shooting and denying he was at the location or had knowledge of the gun, indicate 

a consciousness of guilt. The jury was free to reject Ratliff’s accidental-shooting 

version of events. Based upon all of the facts and circumstances contained in the 

record, we conclude the jury could rationally conclude that Ratliff intended to kill 

Quinn.

3. Willful Injury Causing Serious Injury—Specific Intent

To convict Ratliff of willful injury causing serious injury, the instructions 

required the jury to find: (1) Ratliff shot Quinn; (2) Ratliff specifically intended to 

cause serious injury to Quinn; and (3) Ratliff caused a serious injury to Quinn. As 

with his other claims, Ratliff focuses his challenge on the specific-intent element of 

the offense. He argues he did not know Quinn and had no animus toward him, 

contending the shooting was accidental. Upon our review of the record, we find a 

rational jury could infer Ratliff had a specific intent to seriously injury Quinn. Ratliff 

did not dispute that he grabbed a gun and pointed it at Quinn. Further, as indicated 
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above, multiple witnesses testified that Ratliff fired at least one shot into the vehicle

without any interference, despite Ratliff’s assertion that the gun only fired because 

Quinn grabbed and wrestled with the gun. Therefore, we conclude the jury could 

rationally conclude Ratliff intended to cause serious injury to Quinn.

4. Assault with Intent to Inflict Serious Injury—Specific Intent

To convict Ratliff of assault with intent to inflict serious injury, the 

instructions required the jury to find: (1) Ratliff did an act intended to either (a) 

cause pain or injury, (b) result in insulting or offensive physical contact, or (c) place 

James in fear of immediate physical contact which would be painful, injurious, 

insulting, or offensive to James; (2) Ratliff had the apparent ability to do the act; 

and (3) Ratliff’s act was done with the specific intent to cause serious injury to 

James. 

While James testified that Ratliff pointed the gun at Quinn, he did not testify 

that Ratliff pointed the gun at him. Instead James testified that after reaching into 

Peter’s vehicle, Ratliff turned back, pointed the gun at Quinn, and told Quinn to 

give him everything he had. After grabbing the gun, Quinn and Ratliff wrestled for 

control of it. The gun was pointed in James’s direction as a result of this struggle. 

The State produced no other evidence that Ratliff specifically intended to injure

James. Based upon our review of the record, even viewing the record in the light 

most favorable to the State, we find there was insufficient evidence to support a 

conviction of assault with intent to inflict serious injury as to James. 

B. Ineffective Assistance of Counsel

Ratliff next contends his trial counsel provided ineffective assistance by 

failing to object to the jury instructions pertaining to two lesser-included offenses. 
12

“When a jury convicts a defendant of a greater offense, no prejudice results from 

the jury considering his guilt of a lesser offense.” State v. Albright, 925 N.W.2d 

144, 157 (Iowa 2019). Given that the jury convicted Ratliff of first-degree murder 

and willful injury causing serious injury, and not the lesser-included offenses he 

complains about, counsel’s failure to challenge the court’s instructions on those 

lesser-included offenses did not prejudice him. Ratliff concedes as much. 

Accordingly, this claim of ineffective assistance of counsel fails. 

C. Admission of Photographs

Finally, Ratliff contests the district court’s ruling on the admissibility of 

photographs of the murder weapon, including several of Ratliff holding the rifle. 

He contends the trial court erred in admitting the photographs as cumulative to 

other evidence offered by the State and unduly prejudicial. Ratliff also challenges 

the use of a photograph admitted as an exhibit of him with the gun during the 

State’s rebuttal argument.

We review the district court’s evidentiary rulings for an abuse of discretion. 

State v. Einfeldt, 914 N.W.2d 773, 778 (Iowa 2018). “If a trial court exercises its 

discretion ‘on grounds or for reasons clearly untenable or to an extent clearly 

unreasonable,’ an abuse of discretion has occurred.” Id. (quoting Buenaventura, 

660 N.W.2d at 50). “A ground or reason is untenable when it is not supported by 

substantial evidence or when it is based on an erroneous application of the law.” 

State v. Putman, 848 N.W.2d 1, 7 (Iowa 2014) (quoting In re Det. of Stenzel, 827 

N.W.2d 690, 697 (Iowa 2013)). “Even if a trial court has abused its discretion, 

prejudice must be shown before we will reverse.” Id. 
13

At issue are exhibits 18 through 24. Exhibits 18 and 19 showed the gun 

being held in someone’s hand but does not show the identity of that person. 

Exhibits 20 and 21 showed Ratliff holding the gun with the muzzle pointed upwards 

with his face visible.2 Exhibits 22 and 23 seem to be the same photograph of an 

extreme close-up of Ratliff holding the gun pointed at the camera with the muzzle 

extremely close to the lens. Exhibit 24 is the gun lying on some clothes or bags 

with no person visible. Before trial, the State moved to admit the exhibits, at which 

point the defense objected to the photographs as cumulative and overly prejudicial. 

The court overruled the objection and admitted the photographs. During the 

testimony of the lead detective, the State published the photographs to the jury. 

The detective explained exhibits 18 through 23 were recovered from Ratliff’s phone 

after he attempted to delete them and exhibit 24 was recovered from Peter’s 

phone. The State briefly referenced the photographs during its closing argument. 

The State also used exhibit 22 in its rebuttal argument.

“Relevant evidence is admissible,” and irrelevant evidence is not. Iowa R. 

Evid. 5.402. “Even when evidence is relevant, it ‘may be excluded if its probative 

value is substantially outweighed by the danger of unfair prejudice.’” State v. 

Taylor, 689 N.W.2d 116, 123 (Iowa 2004) (quoting Iowa R. Evid. 5.403). Further, 

the court may exclude relevant evidence if it “needlessly present[s] cumulative 

evidence.” Iowa R. Evid. 5.403. 

Ratliff does not contest the relevancy of the photographs. Therefore, the 

question becomes whether the probative value of the evidence was substantially 

 

2 Exhibit 21 shows Ratliff wearing the same hat and clothes and in the same location as 

exhibit 20, however, the image is very blurry.
14

outweighed by a danger of unfair prejudice. See id. “Evidence is unfairly 

prejudicial if it, ‘[a]ppeals to the jury’s sympathies, arouses its sense of horror, 

provokes its instinct to punish, or triggers other mainsprings of human action that 

may cause the jury to base its decision on something other than the established 

propositions in the case.’” State v. Price, 692 N.W.2d 1, 5 (Iowa 2005) (quoting 

State v. White, 668 N.W.2d 850, 854 (Iowa 2003)). “Weighing probative value 

against prejudicial effect ‘is not an exact science,’ so ‘we give a great deal of 

leeway to the trial judge who must make this judgment call.’” Einfeldt, 914 N.W.2d 

at 784 (quoting Putman, 848 N.W.2d at 10). “For us to hold the trial court abused 

its discretion in determining the danger of unfair prejudice created by the admission 

of evidence did not substantially outweigh its probative value, the complaining 

party must show that the trial court’s action was unreasonable in the light of 

attendant circumstances.” State v. Buchanan, No. 03-0230, 2004 WL 1071896, at 

*3 (Iowa Ct. App. May 14, 2004). 

The State argues the evidence provided proof of identity and access to the 

weapon before the shooting. During the police investigation, Ratliff gave several 

inconsistent stories about the possession of the gun, including denying all 

knowledge of the gun and asserting he only received the gun after the shooting in 

order to dispose of it for another.

Considering the facts and circumstances of this case, the publication of the 

exhibits to the jury “merely embellished the verbal picture of the events already 

provided by the testimony” of witnesses. State v. Munz, 355 N.W.2d 576, 580

(Iowa 1984). By the time of publication of the photographs, other witnesses had 

testified to the use of the gun in the shooting and Ratliff’s possession of the gun at 
15

the time of the shooting. Further, most of the photographs were recovered from 

Ratliff’s own phone and put knowledge of the murder weapon and the actual 

weapon in Ratliff’s possession before the shooting. This was in direct contradiction 

to several of Ratliff’s statements to the police about his involvement, or lack 

thereof, in the shooting. Further, “[e]ven if we assume the evidence was 

cumulative, that is not a sufficient reason, standing alone, to require its exclusion; 

its admissibility still turns on the trial court’s discretion.” Id. Upon our review of the 

record, we do not find an abuse of discretion in the admittance of the photographs

and their publication to the jury.

Ratliff further argues that the State’s use of exhibit 22 in its rebuttal 

argument was a violation of “golden-rule” doctrine, prohibiting arguments asking 

the jury “to place themselves in the position of the victim.” State v. Musser, 721 

N.W.2d 734, 754 (Iowa 2006) (quoting Lucas v. State, 335 So. 2d 566, 567 (Fla.

Dist. Ct. App.1976)). The transcript reflects the State used the exhibit in its rebuttal 

argument while stating: “We have to rely on evidence, the testimony of those who 

were there and saw things and heard things and investigated this case. But 

interestingly enough, we can get a feel from what really happened. That’s the last 

thing Tony Quinn saw before the defendant murdered him.” The transcript 

includes a court reporter’s note that at the end of that last sentence: “(indicating).” 

After the jury left to begin its deliberations, defense counsel made a record about 

the State’s use of the photograph in its rebuttal argument but made no objection 

and did not move for a mistrial. 
16

The State argues Ratliff failed to preserve error because trial counsel did 

not object and no claim of prosecutorial misconduct or error3 was made to the trial 

court after the State’s argument. However, Ratliff argues in the alternative that 

counsel provided ineffective assistance by failing to object. Therefore, we will 

proceed to the merits of the claim. The following framework applies to assessing 

a prosecutorial-misconduct claim raised within an ineffective-assistance-ofcounsel claim:

In analyzing [Ratliff’s] ineffective-assistance-of-counsel claim, 

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. Thus, we must consider whether the prosecutor was guilty 

of misconduct in the particulars identified by [Ratliff] and whether the 

record shows [Ratliff] was prejudiced, i.e., denied a fair trial. 

If the record is insufficient to make this determination, we must 

preserve [Ratliff’s] ineffective-assistance claim for a fuller 

development of the pertinent facts. If, however, the record shows 

that either element is lacking as a matter of law, we will affirm 

[Ratliff’s] conviction without preserving his due process claim for a 

later postconviction-relief action.

State v. Graves, 668 N.W.2d 860, 869–70 (Iowa 2003).

“[A] prosecutor ‘is entitled to some latitude during closing arguments in 

analyzing the evidence admitted in the trial.’” Musser, 721 N.W.2d at 754 (quoting 

Graves, 668 N.W.2d at 874). 

“[A] prosecutor may argue the reasonable inferences and 

conclusions to be drawn from the evidence,” but may not suggest 

that the jury decide the case on “any ground other than the weight of 

the evidence” introduced at trial. In addition, a prosecutor is not 

 

3 Prosecutorial misconduct occurs when “a prosecutor intentionally violates a clear and 

unambiguous obligation or standard imposed by law, applicable rule or professional 

conduct,” or “recklessly disregards a duty to comply with an obligation or standard.” 

Schlitter, 881 N.W.2d at 394 (citation omitted). “Prosecutorial error occurs ‘where the 

prosecutor exercises poor judgment’ and ‘where the attorney has made a mistake’ based 

on ‘excusable human error, despite the attorney’s use of reasonable care.’” Id. (citation 

omitted).
17

“allowed to make inflammatory or prejudicial statements regarding a 

defendant in a criminal action.” 

Id. (quoting Graves, 668 N.W.2d at 874). 

Here, we find that although the State did not directly ask the jury to put 

themselves in Quinn’s shoes, her comments could be understood to make that 

inference. However, “[p]rosecutorial misconduct alone does not entitle” Ratliff to 

his requested relief, as “[t]here must be proof the misconduct resulted in prejudice 

to the extent [Ratliff] was denied a fair trial.” Id. at 755. To determine if any 

prejudice resulted from misconduct, we consider several factors “within the context 

of the entire trial.” Graves, 668 N.W.2d at 869 (quoting State v. Piper, 663 N.W.2d 

894, 913 (2003)). We consider “the severity and pervasiveness of the misconduct, 

the significance of the misconduct to the central issues in the case, the strength of 

the State’s evidence, the use of cautionary instructions or other curative measures, 

and the extent to which the defense invited the misconduct.” Id. (altered for 

readability).

While we “frown upon the prosecutor’s improper appeal to the jury to convict 

the defendant for reasons other than his guilt as established by the State’s 

evidence,” we are unable to say Ratliff was denied a fair trial. See Musser, 721 

N.W.2d at 757. The district court provided the jury with curative instructions that 

arguments by counsel were not evidence upon which the jury could base its verdict 

upon. “A jury is presumed to follow the instructions of the court.” State v. Ondayog, 

722 N.W.2d 778, 785 n.2 (Iowa 2006). Further, the picture in question had already 

been published to the jury during witness testimony. We find Ratliff cannot show 
18

prejudice, therefore he cannot meet the burden for a prosecutorial-misconduct 

claim. Accordingly, he cannot show ineffective assistance of counsel. 

III. Conclusion

We find the jury’s verdicts for murder in the first degree and willful injury 

causing serious injury are supported by substantial evidence and therefore affirm 

the judgments and sentences of the district court for those offenses. We find the 

State failed to establish sufficient evidence for assault with intent to inflict serious 

injury. Accordingly, we reverse the judgment and sentence for that offense and 

remand for dismissal of the charge. We find Ratliff’s trial counsel was not 

ineffective and the court did not abuse its discretion in admitting photographs 

showing Ratliff holding the murder weapon.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.