IN THE SUPREME COURT OF IOWA

No. 13–0450

Filed January 2, 2015

STATE OF IOWA,

Appellee,

vs.

KEVIN DESHAY AMBROSE,

Appellant.

Appeal from the Iowa District Court for Black Hawk County, 

Todd A. Geer, Judge. 

Defendant appeals convictions and sentences for murder in the 

first degree, attempt to commit murder, and felon in possession of a 

firearm and challenges instructions to the jury. AFFIRMED.

Mark C. Smith, State Appellate Defender, Vidhya K. Reddy, 

Assistant State Appellate Defender, and Kevin D. Ambrose, pro se, for 

appellant.

Thomas J. Miller, Attorney General, Mary A. Triick, Assistant 

Attorney General, Thomas J. Ferguson, County Attorney, James J. 

Katcher and Linda M. Fangman, Assistant County Attorneys, for 

appellee.
2

CADY, Chief Justice.

In this appeal from a conviction for murder in the first degree and 

other criminal offenses, we consider claims of trial error based primarily 

on jury instructions relating to the order in which the jury was 

instructed to consider greater and lesser offenses and various 

permissible inferences of malice. On our review, we conclude the 

acquittal-first instruction was not prejudicial, and the inference 

instructions were not erroneous. We affirm the judgment and sentence 

of the district court.

I. Background Facts and Proceedings. 

This case arises from a shooting that occurred on May 2, 2012, at 

a house in Waterloo shared by Kevin Ambrose and Marlene Buss. They 

lived in the house with two of Buss’s three children, Ambrose’s two 

children, and Ambrose’s brother, Jeremi Montgomery. Ambrose and 

Buss had dated earlier in their lives and reconnected in 2010. They 

began living together in 2011. Their relationship included discussions of 

marriage. They obtained and framed an unsigned marriage certificate, 

purchased wedding rings, and discussed having children together. 

At the same time, the relationship between Ambrose and Buss was 

strained and involved both physical and verbal confrontations. Buss was 

also concerned that Ambrose had personal relationships with other 

women. Ambrose would leave the house for days without contacting 

Buss. Buss also feared that Ambrose could be violent. Ambrose once 

told Buss he would kill her if she ever left him. 

On May 1, Buss spent the evening with Undray Reed, the father of

two of her children, following his release from prison. During the 

evening, they discussed their children, and Buss told Reed of the 

problems in her relationship with Ambrose. Buss returned to the house 
3

around 6 a.m. on May 2. When Ambrose returned home a few hours 

later, he threatened “to do something to” Buss once he found out where 

she had been. 

Later in the morning, Buss left the house with her two children 

because she was afraid of Ambrose. She went to the home of Reed’s 

sister. That afternoon, she obtained a no-contact order against Ambrose. 

The order also directed Ambrose to vacate the house. The order was 

served on Ambrose at the house by two deputy sheriffs at 5:20 p.m. The 

deputies remained in the house until Ambrose collected a few personal 

belongings and left. Ambrose’s children remained at the house in the 

care of Montgomery.

After Ambrose left the house, the deputies contacted Buss and told 

her she could return to the residence. Buss returned, but she also 

planned to vacate the house because she feared a conflict with Ambrose 

would arise despite the no-contact order. She was accompanied by her 

mother, Kay Straw. Reed, his sister, his daughter, and Reed and Buss’s 

two children also went to the house. They all planned to help Buss

gather her belongings. 

Shortly after Ambrose vacated the house, he made a phone call to 

Leslie Kingery, the mother of his two children, and asked her to retrieve 

some of his belongings from the house, as well as some clothing for his 

children. She went to the house with two of Ambrose’s aunts, but was 

not permitted to remove any property by Buss and a police officer called 

in to assist. Kingery then left with her children and Ambrose’s aunts. 

Around the same time, at 5:54 p.m., Ambrose made a phone call to Jodi 

Sherburne and told her, “[I]f something happens, please remember that I 

love you and [your daughter].” After the phone call ended, Sherburne 

called Buss to express concern for her safety. Ambrose called Sherburne 
4

again at 6:04 p.m. He was upset and told her, “I got to go do what I got 

to go do.” 

Kingery called Ambrose at 6:19 p.m. and told him she was unable 

to retrieve any property from the house. Montgomery then called 

Ambrose from the house at 6:25 p.m. This call lasted seventeen 

minutes. During the call, the police returned to the house three more 

times after Montgomery and Buss started to argue over property Buss 

wanted to remove from the house, including a sofa. After Montgomery 

refused to allow Buss to remove the sofa and after the law enforcement 

officers had left the house, she began to repeatedly cut the sofa with a 

kitchen knife. 

Around this time, Ambrose returned to the house by entering

through the side door. He was carrying a pistol and a baseball bat. As 

he entered, he observed the framed marriage license in a trash can. He 

then saw Reed standing in the living room. Ambrose approached him 

until he was only a few feet away and pointed the pistol at his forehead.

He said, “You first” and pulled the trigger. The firing mechanism of the 

pistol jammed, and the pistol did not fire. Buss began to run out the 

front door, as Ambrose worked to dislodge the bullet that had jammed in 

the pistol. Ambrose then pursued Buss out the front door and shot her 

in the back as she was descending the front steps. She fell to the 

ground. Ambrose then stood over her and shot her two more times, once 

in the abdomen and once in the buttock as she tried to shield herself 

from the attack. She then managed to stand up and run. As she was 

retreating from the house, she used her cell phone to call 911. This call 

was made at 6:51 p.m. 

After wounding Buss, Ambrose entered the front door of the house 

and shot Straw twice before exiting the side door. Straw was struck by 
5

bullets in the back and in the chest. Ambrose jumped over Straw as he 

ran out the side door to pursue Reed, who had run from the house. 

Ambrose pursued, but was unable to catch up to Reed, and 

disappeared from the scene. Between 6:55 p.m. and 7 p.m., Ambrose 

called Sherburne seven times. He asked her to pick him up in her car 

and told her he had done something stupid. He also called Kingery, told 

her that he loved her and the kids and that it was “too late.” Ambrose 

called Kingery again the next morning after hiding from law enforcement 

officers overnight. He told her there had been an altercation at the house 

the night before, and he had blacked out. Police took Ambrose into 

custody on May 3. 

Straw was pronounced dead after being transported to a hospital. 

Buss survived her injuries. 

Ambrose was charged with murder in the first degree in violation of 

Iowa Code section 707.2, two counts of attempt to commit murder in 

violation of section 707.11, and felon in possession of a firearm in 

violation of section 724.26. At trial, he argued that Straw’s death was 

manslaughter, not murder, because he was overwhelmed by a sudden 

passion caused by the day’s events after he entered the house on May 2

just prior to the shooting. 

Ambrose objected to a variety of jury instructions at trial. First, he 

objected to Instruction No. 53. This instruction told the jury it could 

“[c]onsider lesser included offenses of a count only if you unanimously 

find the defendant not guilty of the offense charged.” Second, he 

objected to Instruction No. 38. This instruction told the jury, “You may 

but are not required to infer malice from the commission of Burglary in 

the First Degree which results in death, or Attempt to Commit Murder 

which results in death.” Third, Ambrose objected to Instruction No. 39.
6

This instruction told the jury, “You may but are not required to infer 

malice aforethought from the defendant’s use of a dangerous weapon.” 

The district court instructed the jury on other inferences and 

conclusions the jury was permitted to draw, which Ambrose did not lodge 

any objection to at the time. First, Instruction No. 14 told the jury, “You 

may, but are not required to, conclude a person intends the natural 

results of his or her acts” in deciding whether a person intended to do an 

act against the law. Second, Instruction No. 15 told the jury “You may, 

but are not required to, conclude a person intends the natural results of 

his or her acts” in determining specific intent. Finally, Instruction No. 37 

told the jury, “If a person has the opportunity to deliberate and uses a 

dangerous weapon against another resulting in death, you may, but are 

not required to, infer that the weapon was used with malice, 

premeditation and specific intent to kill.” 

Ambrose was convicted of all four counts and sentenced to life in 

prison without the possibility of parole for the murder. He was 

sentenced to twenty-five years for each of the two counts of attempt to 

commit murder, and five years for the count of felon in possession of a 

firearm. 

Ambrose appealed. He raises three claims. First, he asserts

Instruction No. 53—the jury may not consider a lesser offense unless it 

unanimously found him not guilty of the greater offense—was a 

misstatement of the law because it precludes a fair consideration and

discussion by the jury of the lesser included offenses. Second, he argues

the instructions concerning the various inferences and conclusions the 

jury was permitted to draw were improper because they amounted to 

undue comment on the evidence. To the extent that his attorney did not 

object to all of the inference instructions, Ambrose claims he was denied 
7

effective assistance of counsel. Finally, he contends the trial court never 

had jurisdiction over the case because the two counts of attempt to 

commit murder in the trial information failed to describe a criminal 

offense. 

II. Scope of Review. 

“We review challenges to jury instructions for correction of errors 

at law.” State v. Frei, 831 N.W.2d 70, 73 (Iowa 2013); see also Iowa R. 

App. P. 6.907. “Error in jury instructions is reversible only if the error is 

prejudicial.” Condon Auto Sales & Serv., Inc. v. Crick, 604 N.W.2d 587, 

593 (Iowa 1999). “Errors in jury instructions are presumed prejudicial 

unless ‘the record affirmatively establishes there was no prejudice.’ ” 

Asher v. Ob-Gyn Specialists, P.C., 846 N.W.2d 492, 496 (Iowa 2014) 

(quoting State v. Murray, 796 N.W.2d 907, 908 (Iowa 2011)). 

To the extent error is not preserved on an issue, any objections 

must be raised within an ineffective-assistance-of-counsel framework. 

See State v. Fountain, 786 N.W.2d 260, 263 (Iowa 2010) (“Ineffectiveassistance-of-counsel claims are an exception to the traditional error 

preservation rules.”). Claims of ineffective assistance of counsel are 

reviewed de novo. King v. State, 797 N.W.2d 565, 570 (Iowa 2011). 

III. Error Predicated on Acquittal—First Instruction. 

We first consider the claim of error based on instruction to the jury 

that it could not consider a lesser included offense until it found 

Ambrose not guilty of the greater offense. The State claims Ambrose 

failed to preserve error on this issue. Therefore, we first consider if error 

was preserved. 

A. Preservation of Error. In determining whether Ambrose 

preserved error in this case, we begin by considering the rationale 

underlying our error-preservation rules. We have previously summarized 
8

the importance of our error-preservation rules and the underlying 

principles that support them as follows: 

Error preservation is important for two reasons: (1) 

affording the district court an “ ‘opportunity to avoid or 

correct error’ ”; and (2) providing the appellate court “ ‘with 

an adequate record in reviewing errors purportedly 

committed’ ” by the district court. These principles of error 

preservation are based on fairness: 

“[I]t is fundamentally unfair to fault the trial court for 

failing to rule correctly on an issue it was never given 

the opportunity to consider. Furthermore, it is unfair 

to allow a party to choose to remain silent in the trial 

court in the face of error, taking a chance on a 

favorable outcome, and subsequently assert error on 

appeal if the outcome in the trial court is unfavorable.”

State v. Pickett, 671 N.W.2d 866, 869 (Iowa 2003) (citation omitted) 

(quoting DeVoss v. State, 648 N.W.2d 56, 60 (Iowa 2002)). 

In this case, Ambrose initially objected to Instruction No. 53 on the 

basis that it was unnecessary because the order of the marshaling 

instructions would adequately guide the jury to consider each count by 

beginning with the greater offense. The prosecutor responded that the 

instruction was necessary because it told the jury it needed to 

unanimously decide the greater offense before considering a lesser 

offense. Thus, the purpose and effect of the instruction were clearly 

identified by the prosecutor. Nevertheless, Ambrose responded that the 

general instruction to the jury that they could only convict him of the 

degree of crime of which there was no reasonable doubt made Instruction 

No. 53 “redundant.” Ambrose then concluded his objection by arguing 

the instruction was “duplicative and not necessary.” 

The objection made at trial by Ambrose failed to give the trial court 

an opportunity to correct the error he now claims on appeal. Ambrose 

never alerted the trial court that the instruction constituted a 

misstatement of the law by precluding any consideration of a lesser 
9

offense until the jury acquitted the defendant of the greater offense. 

Moreover, the district court rejected the claim that the instruction was 

duplicative by concluding it would help the jury sort through the 

charging instructions. The district court never had an opportunity to 

consider the underlying legal merits of not allowing the jury to consider a 

lesser offense until the defendant was acquitted of the greater offense. 

We conclude Ambrose failed to preserve error on this issue. Thus, 

we proceed to consider the claim under an ineffective-assistance-ofcounsel framework. See State v. Ross, 845 N.W.2d 692, 698 (Iowa 2014) 

(“ ‘[F]ailure to recognize an erroneous [jury] instruction and preserve 

error breaches an essential duty.’ ” (quoting State v. Ondayog, 722 

N.W.2d 778, 785 (Iowa 2006))). 

B. Ineffective Assistance of Counsel. “The right to assistance of 

counsel under the Sixth Amendment to the United States Constitution 

and article I, section 10 of the Iowa Constitution is the right to ‘effective’

assistance of counsel.” Fountain, 786 N.W.2d at 265 (quoting Ondayog, 

722 N.W.2d at 784). To establish an ineffective-assistance-of-counsel 

claim, an applicant must show that “(1) his trial counsel failed to perform 

an essential duty, and (2) this failure resulted in prejudice.” State v. 

Straw, 709 N.W.2d 128, 133 (Iowa 2006) (citing Strickland v. Washington, 

466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984)). 

The claimant must prove each of these elements by a preponderance of 

the evidence. King, 797 N.W.2d at 571. 

We can resolve ineffective-assistance-of-counsel claims under 

either prong of the analysis. State v. Graves, 668 N.W.2d 860, 869 (Iowa 

2003). With respect to the application of the first prong to this case, we 

have never addressed the question of whether a jury in a criminal case 

must decide a defendant’s guilt or innocence on the greater offense 
10

before considering a lesser offense. We recognize the question has been 

addressed by other courts across the nation, with a variety of outcomes.1 

1A number of jurisdictions have reached a variety of outcomes when considering 

how the jury should be instructed to move from considering the charged offense to 

considering lesser included offenses. See David F. Abele, Comment, Jury Deliberations 

and the Lesser Included Offense Rule: Getting the Courts Back in Step, 23 U.C. Davis L. 

Rev. 375, 379–80 & nn.28–33 (1990) [hereinafter Abele] (compiling cases); Robert 

Sheppard, Comment, Double Jeopardy Blues: Why in Light of Blueford v. Arkansas 

States Should Mandate Partial Verdicts in Acquit-First Transition Instruction Cases, 83 

Miss. L.J. 373, 379–81 & nn.20–27 (2014) [hereinafter Sheppard] (noting the different 

approaches to “transition instructions” and compiling cases). The different approaches 

include: (1) acquittal-first instruction; (2) unable-to-agree instruction; (3) defendant’s 

choice between acquit first and unable-to-agree instructions; (4) has-not-been-proved 

instruction; (5) the court allows the jury to consider the charged offense and the lesser 

included offenses together, in whatever order it wishes; and (6) no transition 

instruction. Sheppard, 83 Miss. L.J. at 379–81 & nn.22–27. 

In jurisdictions that utilize an acquittal-first transition instruction, the judge 

instructs the jury to “begin by deliberating the greatest charge first, proceed from one 

charge to the next in descending order based on severity, and proceed to discussing the 

lesser charges only after the jury unanimously agrees to acquit the defendant of the 

greater charge.” Id. at 379. 

While the caselaw from the majority of states suggests an acquittal-first 

instruction is an acceptable choice for the district court to utilize when charging a jury, 

cases from Georgia, New Jersey, Nebraska, and New Hampshire suggest 

murder/provocation cases need special treatment. Edge v. State, 414 S.E.2d 463, 465–

66 (Ga. 1992) (finding an acquittal-first felony-murder instruction precludes 

consideration of provocation evidence); State v. Trice, 835 N.W.2d 667, 671–72 (Neb. 

2013) (same with second-degree murder); State v. O’Leary, 903 A.2d 997, 1000–01 (N.H. 

2006) (holding a pure acquittal-first instruction when manslaughter is a lesser included 

offense is error); State v. Coyle, 574 A.2d 951, 966 (N.J. 1990) (holding sequential 

charges can be misleading in murder cases. Commentators have also noted a 

movement away from the acquittal-first approach. Abele, 23 U.C. Davis L. Rev. at 377–

78, 381 (citing seven states that had moved to a disagreement or “unable to agree” 

instruction between 1977 and 1989)). 

Under an unable-to-agree instruction, 

jurors may render a verdict on a lesser-included offense if, after full and 

careful consideration of the evidence, they are unable to reach agreement 

with respect to the charged crime. Thus, the jury may deliberate on a 

lesser offense if it either (1) finds the defendant not guilty on the greater 

charge, or (2) after reasonable efforts cannot agree whether to acquit or 

convict on that charge. 

State v. LeBlanc, 924 P.2d 441, 442 (Ariz. 1996). 

Some courts have chosen to allow the defendant to make the choice between the 

acquittal-first and the unable-to-agree instructions. The United States Court of Appeals 

for the Second Circuit made that decision in United States v. Tsanas premised on the 

 
11

Nevertheless, we can resolve this case under the prejudice prong of an 

ineffective-assistance-of-counsel claim. Therefore, it is unnecessary for 

us to consider if trial counsel rendered ineffective assistance by failing to 

argue that the acquittal-first instruction was an improper statement of 

the law. 

To establish prejudice in the context of an ineffective-assistance-ofcounsel claim, a defendant must show a reasonable probability that the 

result of the trial would have been different. King, 797 N.W.2d at 574. 

The likelihood of a different result must be substantial, not just 

conceivable. Id. at 572. A defendant must show the probability of a 

different result is sufficient to undermine confidence in the outcome. 

State v. Clay, 824 N.W.2d 488, 496 (Iowa 2012). This standard requires 

us to consider the totality of the evidence, identify what factual findings 

belief that, “[w]ith the opposing considerations [of the acquittal-first and unable-todecide instructions] thus balanced,” it could not conclude that “either form of 

instruction is wrong as a matter of law.” 572 F.2d 340, 346 (2d Cir. 1978). Therefore, 

the court concluded that “[t]he court may give the one that it prefers if the defendant 

expresses no choice,” but if the defendant has a preference, “the court should give the 

form of instruction which the defendant seasonably elects.” Id. The court reasoned the 

defendant should be the one to choose because it is the defendant’s “liberty that is at 

stake,” whereas the government’s risk is limited to the defendant’s “readier conviction 

for a lesser rather than a greater crime.” Id. While far from the majority, some 

jurisdictions have followed the Tsanas court’s reasoning and elect to allow the 

defendant to choose the type of instruction given to the jury. See, e.g., United States v. 

Jackson, 726 F.2d 1466, 1469 (9th Cir. 1984) (per curiam); Catches v. United States, 

582 F.2d 453, 459 (8th Cir. 1978); Wright v. United States, 588 A.2d 260, 262 (D.C. 

1991); State v. Powell, 608 A.2d 45, 47 (Vt. 1992).

The has-not-been-proved instruction provides that rather than require an 

acquittal, if an element of the charge is not proved beyond a reasonable doubt, then the 

jury is to move to the lesser charge. State v. Thomas, 533 N.E.2d 286, 293 (Ohio 1988). 

Some courts “allow[ ] jurors to deliberate on greater and lesser offenses in any order but 

prohibit[ ] return of verdicts on lesser offenses without first returning a verdict on the 

greater offense.” Whiteaker v. State, 808 P.2d 270, 274 (Alaska Ct. App. 1991). And, 

finally, some states do not require any specific transition instruction be used by their 

courts. Sheppard, 83 Miss. L.J. at 381 & n. 27. 

______________________
12

would have been affected, and determine if the error was pervasive or 

isolated and trivial. Everett v. State, 789 N.W.2d 151, 158 (Iowa 2010). 

The general justification for permitting a jury to consider lesser 

included offenses without first acquitting the defendant on the greater 

offense is to insure that the jury fully appreciates and understands the 

alternative outcomes at stake and how all the claims of the parties fit 

into those alternatives. See State v. Labanowski, 816 P.2d 26, 33–36 

(Wash. 1991) (discussing different rules before deciding the unable-toagree instruction accurately reflects Washington law). In this case, the 

claim of provocation is directed at the lesser offense of voluntary 

manslaughter. Ambrose claims the jury would have likely found him 

guilty of manslaughter if they would have had the opportunity to 

consider the lesser included offense specifically directed at provocation.2 

Provocation is the linchpin of the crime of voluntary manslaughter. 

Iowa Code § 707.4 (2011). We recently discussed the concept of serious 

provocation in State v. Thompson, 836 N.W.2d 470, 477 (Iowa 2013). We 

said: 

“The subjective requirement of section 707.4 is that the 

defendant must act solely as a result of sudden, violent, and 

irresistible passion. The sudden, violent, and irresistible 

passion must result from serious provocation sufficient to 

excite such passion in a reasonable person. This is an 

objective requirement. It is also necessary, as a final 

objective requirement, that there is not an interval between 

2A person commits voluntary manslaughter when that person 

causes the death of another person, under circumstances which would 

otherwise be murder, if the person causing the death acts solely as the 

result of sudden, violent, and irresistible passion resulting from serious 

provocation sufficient to excite such passion in a person and there is not 

an interval between the provocation and the killing in which a person of 

ordinary reason and temperament would regain control and suppress the 

impulse to kill. 

Iowa Code § 707.4 (2011). 

 
13

the provocation and the killing in which a person of ordinary 

reason and temperament would regain his or her control and 

suppress the impulse to kill.” 

Thompson, 836 N.W.2d at 477 (quoting State v. Inger, 292 N.W.2d 119, 

122 (Iowa 1980)). In Thompson, we held a trial court did not err in failing 

to give a voluntary manslaughter instruction based on evidence that the 

victim slapped the defendant, argued with him, and made an obscene 

gesture before he shot her twice in the head after she had retreated to a 

car parked in the driveway of their home. Id. at 475, 478. The defendant 

testified he retrieved his rifle and shot her because he could not “take it 

anymore.” Id. at 475.

In this case, evidence of serious provocation was based on the 

observations made by Ambrose after he entered the house, as well as his 

emotional state after he was removed from the house by the no-contact 

order and was unable to obtain clothing for his children from the house. 

The observations made by Ambrose after he entered the house to support 

provocation included the sight of the framed marriage license in a trash 

can, damage to a sofa, and the presence of Reed in the house. 

The claim of provocation was undermined by ample evidence that 

Ambrose planned to engage in some form of extreme violence before 

going to the home. He armed himself with a pistol and a baseball bat 

before going to the house, and attempted to fire the pistol at a person 

promptly after entering the house and announcing, “You first.” See State 

v. Holder, 237 Iowa 72, 81, 20 N.W.2d 909, 914 (1945) (holding “ ‘the 

provocation must be great . . . to lower the offense’ . . . if . . . the 

defendant armed himself for the encounter” (quoting State v. Hockett, 70 

Iowa 442, 453, 30 N.W. 746, 748 (1886))). Thus, despite the subjective 

claim by Ambrose that the events upon entering the house flamed an 
14

irresistible passion that provoked the shootings, there was strong 

objective evidence of premeditation.

Additionally, the evidence of provocation was insufficient to excite 

sudden, violent, and irresistible passion in a reasonable person. Like 

Thompson, the evidence in this case emanated from a historically 

troubled relationship, and under all the circumstances, was insufficient 

to constitute serious provocation under an objective standard. See 

Thompson, 836 N.W.2d at 477–78. Furthermore, there was no evidence 

that the murder victim did anything to provoke Ambrose to shoot her. 

See Inger, 292 N.W.2d at 122 (recognizing that evidence the victim 

assaulted the defendant could establish serious provocation). 

Considering all the evidence, there was no reasonable probability 

the result of the trial would have been different if the jury could have 

considered the lesser included offenses before deciding Ambrose was 

guilty of the greater offenses of murder in the first degree and the two 

counts of attempt to commit murder. The evidence of guilt was 

overwhelming, and the jury would have necessarily considered the 

evidence of provocation when considering the state of mind of Ambrose to 

support the crimes of murder and attempt to commit murder. The 

district court had read all the instructions to the jury before deliberations 

began, so the jury would have known of the provocation element of 

voluntary manslaughter when it considered the greater offense of murder 

in the first degree. Furthermore, the arguments of counsel informed the 

jury of the claim of provocation. Overall, our confidence in the outcome 

of the trial is not undermined by the acquittal-first instruction under all 

the circumstances in this case. 
15

IV. Error Predicated on Inference Instructions. 

We next address the claim by Ambrose that the inference 

instructions given to the jury by the district court constituted an 

improper comment on the evidence. Ambrose did not object to all of the 

inference instructions at trial. To the extent that an objection was not 

lodged at trial, Ambrose claims he was denied effective assistance of 

counsel. Of course, if the inference instructions were a correct statement 

of the law and did not improperly comment on the evidence, no error 

occurred at trial, and the claim of ineffective assistance of counsel fails. 

See State v. Maxwell, 743 N.W.2d 185, 197 (Iowa 2008). 

We begin by recognizing that the five instructions at issue are 

generally supported by the law of this state, although not necessarily 

directly. See State v. Blair, 347 N.W.2d 416, 421 (Iowa 1984) (“The use of 

a deadly weapon accompanied by an opportunity to deliberate is evidence 

of malice, deliberation, premeditation and intent to kill.”); State v. Oliver, 

341 N.W.2d 744, 747 (Iowa 1983) (“Malice may be inferred . . . from the 

commission of a felony that results in death.”); State v. Rinehart, 283 

N.W.2d 319, 322–23 (Iowa 1979) (holding as rational an inference that a 

person intends the natural and probable consequences that result from 

their actions); State v. Smith, 242 N.W.2d 320, 326 (Iowa 1976) (stating 

malice aforethought may be inferred from the use of a deadly weapon). 

The instructions in dispute are also part of the Iowa State Bar 

Association’s Criminal Jury Instructions. See Iowa State Bar Ass’n, Iowa 

Criminal Jury Instructions 700.8 (2010) (“If a person has the opportunity 

to deliberate and uses a dangerous weapon against another resulting in 

death, you may, but are not required to, infer that the weapon was used 

with malice, premeditation and specific intent to kill.”); id. 700.9 (“Malice 

may be inferred from the commission of (felony) which results in death.”); 
16

id. 700.10 (“Malice aforethought may be inferred from the defendant’s 

use of a dangerous weapon.”); id. 200.1–.2 (“You may, but are not 

required to, conclude a person intends the natural results of [his] . . . 

acts.”). Normally, we are slow to disapprove of the uniform jury 

instructions. State v. Weaver, 405 N.W.2d 852, 855 (Iowa 1987); see also 

State v. Beets, 528 N.W.2d 521, 523 (Iowa 1995) (per curiam). 

Nevertheless, Ambrose urges us to reconsider the instructions on 

the basis that they constitute an improper comment on the evidence. He 

argues that the inference instructions unfairly draw attention to the 

evidence and can be viewed as a judicial comment on the evidence. He 

asserts that the inferences to be drawn from the evidence should be left 

for counsel’s argument. 

Generally, the five instructions at issue can be considered together 

because the claim of error is basically the same with each instruction. 

The undue-comment argument rests in part on the basic legal 

proposition that malice may be inferred from all the circumstances of the 

case. See State v. Copenhaver, 844 N.W.2d 442, 452 (Iowa 2014) (“We 

may infer intent from the defendant’s actions and the circumstances of 

the transaction.”); State v. Bentley, 757 N.W.2d 257, 265 (Iowa 2008) 

(approving malice instruction). This proposition is not disputed by 

Ambrose. Yet, once a jury is informed that malice may be inferred from 

all the facts and circumstances, Ambrose claims that more specific 

instructions that authorize malice to be inferred from specifically 

identified circumstances or acts in the case only draw attention to that 

evidence and may even allow the jury to find malice based on evidence 

that otherwise would not support the inference. Professor Rigg provides 

an illustration of this latter point in his Iowa practice treatise on criminal 

law by using the inference of malice based on the use of a dangerous 
17

weapon. 4 Robert R. Rigg, Iowa Practice SeriesTM Criminal Law § 3:5, at 

87–88 (2014–2015 ed.). He explained:

A is involved in a fight with B. A is winning the fight 

and has knocked B to the ground. B picks up a rock and 

strikes A. A dies as a result of being st[r]uck with the rock. 

B is charged with murder. The rock is argued to be a 

dangerous weapon because it is an instrument which is used 

in a manner as to indicate the defendant intends to inflict 

death or serious injury and is capable of inflicting death or 

serious injury. Using the inference instruction, the 

prosecution is free to argue and the jury to conclude that B 

was acting with “malice aforethought” even though there is 

no evidence of spite, hatred or ill will.

Id. (footnote omitted). Under this illustration, if an instrumentality used 

to cause death would not normally be used to cause death and the jury 

is instructed it can infer malice from the use of the instrument, the jury 

could draw an inference from the mere use of the instrument even 

though the actual surrounding evidence would not otherwise support 

malice. Id. Thus, the instruction could be used by the jury as a 

substitute for a finding of malice based on the evidence. See id. § 3:5, at 

88–89; id. § 3:13, at 96–97. 

While the argument articulated by Ambrose in this case against 

the use of inference instructions generates concerns that must be 

carefully considered in each case, the danger identified by Professor Rigg 

is not present in this case. Here, Ambrose entered the house in violation 

of a no-contact order, and he was armed with a baseball bat and a pistol, 

which he repeatedly fired at occupants in the house, as well as one 

occupant outside the house who was attempting to run from the 

dwelling. Each of the inference instructions were justified by the 

circumstances in the case and did not present a danger that the jury 

could infer malice from underlying acts identified in the instruction that 

would not otherwise support the inference.
18

We have permitted the practice of instructing juries on inferences 

of malice from certain evidence since 1858. See State v. Gillick, 7 Iowa 

287, 311 (1858) (“Malice is legitimately inferred from the weapon used; 

and where the killing is with a dangerous weapon, calculated to produce, 

and actually producing death, in the absence of proof that it was 

accidental, or upon provocation, the presumption of law is, that the act 

was voluntary, and with malice aforethought.”). Inferences are a part of 

our law and the practice of identifying specific inferences that may be 

drawn from general categories of evidence gives the jury an important 

focal point and tightens the analysis to eliminate inferences not 

supported by the evidence. 

We acknowledge that repetitive instructions may give undue 

prominence to certain evidence. Burkhalter v. Burkhalter, 841 N.W.2d 

93, 106 (Iowa 2013). However, an instruction is not repetitive if it serves 

to clarify a concept or build on a point of law for the jury. Id. at 107. 

Here, the district court was required to instruct the jury on all lesser 

included offenses to each count. See State v. Anderson, 636 N.W.2d 26, 

38 (Iowa 2001) (“Generally, a district court commits reversible error by 

failing to instruct the jury on all lesser-included offenses.”). In this 

context, the three malice inference instructions were not repetitive, but 

each corresponded with an instruction on a specific offense. The first 

instructed on permissible inferences in willful, deliberate, premeditated 

first-degree murder with specific intent to kill the victim. The next 

provided the permissible inferences that may be drawn in a forcible 

felony death. The third malice instruction provided the inferences for 

second-degree murder malice aforethought. The trial court must walk a 

fine line between instructing the jury on all the necessary lesser included 

offenses and avoiding a piling-on effect that unduly emphasizes certain 
19

aspects of the evidence. In this case, however, each malice inference 

instruction included a distinct point of law and applied to a different 

offense. The inference instructions did not constitute reversible error. 

V. Subject Matter Jurisdiction. 

Finally, Ambrose challenges the subject matter jurisdiction of the 

district court for the first time on appeal. This pro se challenge is based 

on his claim that the two counts of attempt to commit murder set out in 

the trial information did not adequately describe a crime under Iowa 

Code section 707.11. He does not claim the trial information failed to 

provide adequate notice and opportunity to prepare a defense. Instead, 

he asserts no criminal offense was described to give the trial court 

subject matter jurisdiction of the case. 

Subject matter jurisdiction can be raised at any time. State v. 

Oetken, 613 N.W.2d 679, 686 (Iowa 2000). However, the trial 

information in this case adequately described the proceeding as a 

criminal case, which is the type of case the district court has jurisdiction 

to hear and decide. See State v. Yodprasit, 564 N.W.2d 383, 386 (Iowa 

1997) (citing Iowa Constitution art. V, § 6); State v. Mandicino, 509 

N.W.2d 481, 482–83 (Iowa 1993). Ambrose impliedly acknowledged the 

criminal nature of the proceeding and the charges against him by failing 

to challenge any deficiency or uncertainty in the charges prior to trial. 

See State v. Davis, 581 N.W.2d 614, 616 (Iowa 1998) (citing Iowa R. 

Crim. P. [2.11(2)(b)]) (recognizing complaints over the sufficiency of 

charges need to be raised prior to trial); State v. Hobson, 284 N.W.2d 

239, 241 (Iowa 1979) (same). The district court had subject matter 

jurisdiction.
20

VI. Conclusion. 

We have reviewed all claims of error raised on appeal. We affirm 

the judgment and sentence of the district court. 

AFFIRMED. 

All justices concur except Wiggins and Appel, JJ., who concur 

specially, and Waterman, J., who concurs specially. 
21

#13–0450, State v. Ambrose

WIGGINS, Justice (concurring specially).

I concur in the majority’s decision. I agree with the majority’s 

analysis regarding the jury instruction that the jury could not consider a 

lesser included offense until it found Ambrose not guilty of the greater 

offense. 

I also agree with the majority’s proposition “that the five 

instructions at issue are generally supported by the law of this state, 

although not necessarily directly.” I also agree the inference instructions 

corresponded to the offense charged and the lessor included offenses. I 

part way with the majority because the district court failed to tie the 

appropriate inference instruction to the applicable crime. 

We have said 

an instruction embodying a potential comment on the 

evidence does not warrant reversal unless the instruction 

prejudiced the complaining party. Prejudice results when 

the trial court’s instruction materially misstates the law, 

confuses or misleads the jury, or is unduly emphasized.

Anderson v. Webster City Cmty. Sch. Dist., 620 N.W.2d 263, 267–68 (Iowa 

2000) (citations omitted).

In this case, the instruction telling the jury malice may be inferred 

from the commission of a felony which results in death, only applies to 

the felony-murder instruction. See State v. Oliver, 341 N.W.2d 744, 747 

(Iowa 1983). Yet the court did not limit that inference to the felonymurder instruction. For this reason, I would find that instructing the 

jury without referencing an instruction to a specific charge not only 

misstates the law, but it also confuses, misleads, and unduly emphasizes 

the State’s argument to the jury. Under other circumstances, I could not 
22

be sure the jury did not use this instruction to infer malice in one of the 

lessor included offenses. 

However, I find this error to be harmless because the jury found 

Ambrose guilty of first-degree murder. Thus, the jury did not use the 

instruction inferring malice from the commission of a crime to find 

malice in the lessor included charges. In the future, I would require any 

inference instruction to reference the applicable element of the crime. In 

addition, I would not give some of the inference instructions that are 

duplicative. The court does not have to give an instruction just because 

it appears in the Iowa State Bar Association’s instruction manual. The 

court must guarantee defendants a fair trial and not overemphasize the 

State’s case.

I also disagree with the statement that “[n]ormally, we are slow to 

disapprove of the uniform jury instructions.” First, we do not have 

“uniform jury instructions” approved by our court. A committee of the 

Iowa State Bar Association writes the instructions. The president of the 

bar association appoints the committee members. We do not have any 

oversight over the process. Second, we never intended the bar 

association’s instructions to have a presumption of correctness. As we 

said in a resolution regarding the instructions, 

Under Iowa law any jury instructions might be challenged in 

the usual manner on appeal to this court. That right of 

review on the part of future litigants precludes us from 

considering the Plain English Redraft Instructions for official 

approval or disapproval. We nevertheless note this newest 

contribution of the committee with a deep sense of 

appreciation and satisfaction.

Iowa Supreme Ct. Resolution, In the Matter of the Iowa State Bar 

Association Uniform Court Instruction Committee (May 6, 1987).
23

As the Supreme Court of the State of Iowa, we cannot delegate our 

duty to insure the instructions our courts give to our juries correctly 

state the law. Although the bar association does a great service to the 

trial courts of this state by publishing its jury instructions, the trial court 

has a duty to make sure the instruction conforms with Iowa law. 

Accordingly, I would overrule any caselaw that gives these instructions a 

presumption of correctness. 

Appel, J., joins this special concurrence. 
24

#13–0450, State v. Ambrose

WATERMAN, Justice (concurring specially).

I join in the well-reasoned majority decision in all respects. I write 

separately to respond to the special concurrence that gratuitously 

denigrates the long-standing reliance by the bench and bar on the 

uniform jury instructions promulgated by the Iowa State Bar Association 

(ISBA). I disagree with my colleague’s assertion that we should “overrule 

any caselaw that gives these instructions a presumption of correctness.” 

This would include dozens of published decisions of our court and 

dozens of decisions of our court of appeals. Stare decisis demands 

greater respect for our precedent. 

As our court reiterates today, “we are slow to disapprove of the 

uniform jury instructions.” See also State v. Beets, 528 N.W.2d 521, 523 

(Iowa 1995); State v. Weaver, 405 N.W.2d 852, 855 (Iowa 1987). Indeed, 

just two years ago, our court, without dissent on this point, stated, 

“ ‘trial courts should generally adhere to the uniform instructions.’ ” 

State v. Becker, 818 N.W.2d 135, 143 (Iowa 2012) (quoting State v. 

Mitchell, 568 N.W.2d 493, 501 (Iowa 1997); see also State v. Hatter, 414 

N.W.2d 333, 336 (Iowa 1987) (same). Why the change of heart today? 

“While we normally approve the submission of uniform 

instructions,” we are free to find a “particular instruction is faulty.” State 

v. McMullin, 421 N.W.2d 517, 518 (Iowa 1988). Everyone knows this. 

What some readers may fail to fully appreciate, however, is the 

tremendous service the members of the ISBA Jury Instruction Committee 

do for our justice system. Without the uniform instructions, trial judges 

and lawyers statewide would be burdened reinventing the wheel 

researching and drafting ad hoc jury instructions every trial. The 

variances in the wording of instructions would increase exponentially, 
25

further burdening appellate review. It is far better to have a committee of 

dedicated trial judges and lawyers craft uniform instructions to spare 

their colleagues that time and trouble. If an appellate court concludes a 

particular jury instruction is erroneous, or if our court changes the law 

in a manner requiring a revision, then corrections to the uniform 

instruction can be readily made and implemented statewide. The value 

of our current process is well understood by the bench and bar. It 

should go without saying.