IN THE COURT OF APPEALS OF IOWA

No. 17-0117

Filed September 26, 2018

STATE OF IOWA,

Plaintiff-Appellee,

vs.

STEVEN ASBURY,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Polk County, Paul D. Scott, Judge.

Steven Asbury appeals from judgment and sentence entered upon his 

conviction for first-degree murder following a jury trial. AFFIRMED.

Mark C. Smith, State Appellate Defender, and Maria L. Ruhtenberg, 

Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Kevin Cmelik and Kelli A. Huser (until 

withdrawal), Assistant Attorneys General, for appellee.

Heard by Danilson, C.J., and Mullins and McDonald, JJ.
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DANILSON, Chief Judge.

Steven Asbury appeals from judgment and sentence entered upon his 

conviction for first-degree murder following a jury trial. On appeal, Asbury asserts 

there was insufficient evidence of the identity of who shot the victim. He also 

contends he received ineffective assistance of trial counsel due to his attorney’s 

failure to object to two jury instructions. Because we find substantial evidence 

supports the jury verdict and Asbury was not prejudiced by counsel’s failure to 

object to the instructions, we affirm.

I. Background Facts and Proceedings

On the morning of July 15, 2016, Tabitha Lee borrowed Steven Asbury’s 

maroon Ford F-150 pickup truck to visit James Patton. Asbury and Patton both 

had past romantic relationships with Lee. Patton had been asked to leave the 

camper in which he had been living, and Lee was bringing the truck to assist him.

Patton and Lee loaded his belongings into Asbury’s truck. Later that evening, Lee 

saw text messages she received from Asbury. The text messages indicated 

Asbury was angry Lee was using his truck to assist Patton, and, in one message,

Asbury asked Lee if she wanted him to shoot Patton.

After Lee read the text messages, Lee and Patton got into an argument at 

a fast-food restaurant, and a restaurant employee called the police. Patton took 

his bicycle out of Asbury’s truck and rode away. Lee then drove the truck, still filled 

with Patton’s belongings, to Asbury’s residence. Asbury was angry Patton’s 

belongings were in the truck, and he told Lee he would not return the items.

Five days later, on the morning of July 21, Lee was with Asbury in his truck, 

and they were arguing. The argument began after Patton contacted Lee about 
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getting his belongings back from Asbury. After the argument, Asbury’s truck broke 

down, and Michelle Killen came to assist Lee and Asbury. Killen dropped Lee off 

at a fast-food restaurant and stayed with Asbury. Asbury planned to have his truck 

towed to Killen’s auto shop.

At about 5:45 p.m. on July 21, Patton was at the Casey’s convenience store 

on East 14th Street and Euclid Avenue in Des Moines, Iowa. Patton purchased 

beer, exited the store, and walked around the building. Patton walked toward a 

maroon Ford F-150 pickup truck in a laundromat parking lot and was shot multiple 

times—in the heart, lung, and twice in the groin area. The truck quickly left the 

area after the shooting. Police and rescue personnel were called to the scene, but 

Patton died from his injuries.

The State charged Asbury with first-degree murder in connection with 

Patton’s death. Asbury pleaded not guilty, and the case was tried to a jury. During 

trial, it was undisputed that Patton was shot, that he died as a result, and that the 

shooter was in a maroon Ford F-150 pickup truck. Asbury maintained he was not 

the person who shot Patton.

Robert Norris, who was Asbury’s friend, cooperated with the State to avoid 

being charged for Patton’s murder. During the trial, Norris testified Asbury came 

to Norris’s house on the afternoon of July 21 and asked Norris to drive him in 

Asbury’s truck to the Casey’s on East 14th Street and Euclid Avenue. Norris 

explained Asbury often asked Norris to drive him places in Asbury’s truck. Norris 

drove Asbury to the Casey’s, and Asbury told him to park the truck across the 

street facing the Casey’s. After five to ten minutes, Asbury told Norris to pull the 

truck across the street to the Casey’s. As Norris moved the truck, Asbury called 
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out to a man—who Norris later learned was Patton—to come over to the truck. 

Norris parked the truck in a laundromat parking lot behind the Casey’s, and Patton 

walked up to the passenger side. Asbury grabbed a handgun from under the 

passenger seat, pointed it at Patton, asked if Patton thought “this was a game,” 

and fired at least four shots. Norris then drove the truck away from the area and 

toward his house.

Norris parked the truck about a mile from his house, got out of the truck, 

took off his shirt and hid it in a bush. Norris told Asbury to take his shirt off, and 

they hid that shirt elsewhere. Norris’s shirt was green, and Asbury’s shirt was red. 

Asbury and Norris walked the rest of the way to Norris’s house. After they arrived

at Norris’s house, they shaved their beards and changed clothes. Asbury departed 

the house but left his truck keys. Asbury’s ex-girlfriend, Michelle Ehrsam, came 

later to retrieve the keys. Norris later led police to the locations of the discarded 

red and green shirts.

Ehrsam also testified at trial. She explained that on July 21 around 6:28 

p.m., she and Killen picked Asbury up from Norris’s house and drove to Killen’s 

house. On the way to Killen’s house, Asbury told Killen he needed to get rid of his 

truck. Later, Killen and Ehrsam returned to Norris’s house to pick up the keys to 

Asbury’s truck. Norris told them where to find the truck, and after finding the truck, 

Ehrsam drove it onto I-235 East and took the I-80 East exit. Killen followed in a 

blue van. Ehrsam pulled the truck to the side of the road near the Colfax exit as 

the truck began to overheat with steam or smoke coming from the engine. Ehrsam 

exited the truck and walked to Killen’s van. Killen exited the van and walked to the 

truck. Ehrsam could not see what Killen was doing, but the truck caught fire while 
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Killen was near it. Killen and Ehrsam left the burning truck on the side of the road 

and returned to Killen’s house. Neither woman called a fire department or 911.

Killen and Ehrsam arrived at Killen’s house between 12:30 a.m. and 1:30 

a.m. They then took Asbury to the bus station. Ehrsam bought a bus ticket under 

the name John Mills. She believed Mills was going with Asbury to Kansas. Mills 

never showed at the bus station, and Ehrsam gave Asbury the ticket she 

purchased in Mills’s name. Ehrsam left the station and went home. Police later 

located and arrested Asbury in Kansas.

The State also presented evidence that law enforcement officers recovered 

bullet cartridge casings from the scene of the shooting and from the truck Ehrsam 

and Killen left burning on the side of the road. The Iowa Division of Criminal 

Investigation (DCI) determined the cartridges from the truck and the scene came 

from the same gun. DCI also determined the bullets recovered from Patton’s body 

were the same kind of ammunition as the cartridges. Investigators were able to 

find surveillance videos from several buildings that captured the shooting and a 

maroon Ford F-150 pickup truck driving away from the scene. They also captured 

video stills of two men walking near where Norris testified he and Asbury left the 

truck.

During the trial, Asbury called no witnesses but challenged Norris’s 

credibility and the strength of the State’s evidence. The jury heard Norris entered 

into an agreement with the State to avoid prosecution for murder. The jury was 

informed of Norris’s extensive criminal history, including his failure to register as a 
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sex offender.1 Asbury’s DNA was not found on the red shirt Norris said Asbury 

had worn. There was testimony and video evidence that Asbury was wearing a 

white shirt on the morning of July 21. In closing arguments, Asbury suggested it 

was Norris who shot Patton and argued the lack of physical evidence and the lack 

of credible witnesses left reasonable doubt as to the identity of the person who 

shot and killed Patton.

The jury found Asbury guilty of first-degree murder. The court sentenced 

him to life in prison without the possibility of parole. Asbury appeals.

II. Scope and Standard of Review

“We review challenges to the sufficiency of evidence for correction of errors 

at law.” State v. Tipton, 897 N.W.2d 653, 692 (Iowa 2017). A verdict of guilty will 

be upheld if supported by substantial evidence. Id. Substantial evidence exists 

“when a rational trier of fact would be convinced the defendant is guilty beyond a 

reasonable doubt.” Id. To determine whether a finding of guilt is supported, all

relevant evidence is viewed in the light most favorable to the State. Id.

“We review claims of ineffective assistance of counsel de novo because the 

claims implicate the defendant’s Sixth Amendment right to counsel.” State v. 

Perkins, 875 N.W.2d 190, 192 (Iowa Ct. App. 2015). Generally, we do not resolve 

claims of ineffective assistance of counsel on direct appeal. Id. If we determine 

the claim cannot be addressed on appeal, we must preserve it for possible 

 

1

In admitting evidence of Norris’s failure to register, the trial court concluded failure to 

register as a sex offender was a “crime of veracity” and did not engage in an Iowa Rule of 

Criminal Procedure 5.609(b) balancing test. Given the verdict, the jury apparently

believed Norris’s testimony notwithstanding his criminal history and his bargain with the 

State.
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postconviction-relief proceedings. See State v. Johnson, 784 N.W.2d 192, 198 

(Iowa 2010).

We review challenges to jury instructions for correction of errors at law. 

State v. Ambrose, 861 N.W.2d 550, 554 (Iowa 2015). “Our review is to determine 

whether the challenged instruction accurately states the law and is supported by 

substantial evidence.” State v. Hanes, 790 N.W.2d 545, 548 (Iowa 2010). Jury 

instructions are considered in their entirety. See Deboom v. Raining Rose, Inc., 

772 N.W.2d 1, 5 (Iowa 2009). “Error in jury instructions is reversible only if the 

error is prejudicial” and instructional errors are presumed prejudicial unless the 

record affirmatively establishes there was no prejudice. Ambrose, 861 N.W.2d at 

554 (citation omitted). If the jury has not been misled when the instructions are 

considered as a whole, there is no reversible error. Hanes, 790 N.W.2d at 551 

(“Our analysis of prejudice is also influenced by an evaluation of whether a jury 

instruction could reasonably have misled or misdirected the jury.”).

III. Discussion

A. Sufficiency of the Evidence

Asbury contends there was insufficient evidence showing he was the 

person who shot Patton. Asbury’s argument on appeal is essentially the same 

argument he made during trial: there is insufficient evidence he shot Patton 

because (1) the only person who identified Asbury as the shooter was Norris; (2) 

Norris isn’t credible; (3) Norris possessed most of the physical evidence; (4) 

Asbury was wearing a white shirt, not a red one, the morning of July 21; and (5) 

his DNA was not found on the red shirt.
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The State counters there was ample evidence in addition to Norris’s 

testimony. We agree. Asbury had motive to shoot Patton as reflected in his text 

messages to Lee. The jury was shown photos from social media to connect the 

red shirt to Asbury. The truck at the crime scene matched Asbury’s truck. A bullet 

cartridge casing was found in Asbury’s truck matching a casing found at the crime 

scene. Both casings were consistent with the bullets recovered from Patton’s 

body. After the shooting occurred, Asbury told Ehrsam he needed to get rid of his 

truck. The truck was left burning on the side of a road. In the early morning hours

the day after the shooting, Asbury boarded a bus using someone else’s name and 

left the state.

Generally, direct eyewitness testimony establishing the elements of the 

crime are sufficient to generate a jury question. See State v. Kutcher, No. 14–

0602, 2015 WL 4935583, at *2 (Iowa Ct. App. Aug. 19, 2015) (holding officer’s 

testimony that he saw defendant commit crime is sufficient to uphold verdict). 

Even in light of credibility challenges to a testifying witness, “[t]he jury is free to 

believe or disbelieve any testimony as it chooses.” State v. Thornton, 498 N.W.2d 

670, 673 (Iowa 1993).

In spite of Asbury’s attempts to impeach Norris’s credibility, it is apparent 

the jury believed Norris’s testimony. The other evidence in the case—including 

Asbury’s texts to Lee, the bullet casing in the truck, and Asbury’s behavior after 

the shooting—corroborates Norris’s testimony. Asbury’s theory at trial—that Norris 

shot a man he did not know for some unknown reason—was clearly rejected by 

the jury. The physical and circumstantial evidence coupled with Norris’s testimony

are more than sufficient evidence to convince the jury beyond a reasonable doubt 
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it was Asbury who shot Patton. The jury’s guilty verdict is supported by substantial 

evidence.

B. Ineffective Assistance of Counsel 

Asbury also contends he received ineffective assistance of trial counsel 

because his attorney failed to object to two jury instructions. Although the

ineffectiveness issue is raised on direct appeal, we find the record sufficient to 

address it. 

The court instructed the jury on the elements of first-degree murder in 

relevant part in Instruction 17:

The State must prove all of the following elements of Murder in the first 

degree:

(1) On or about July 21, 2016, the defendant shot James Patton.

(2) James Patton died as a result of being shot.

(3) The defendant acted with malice aforethought.

(4) The defendant acted willfully, deliberately, premeditatedly and 

with specific intent to kill James Patton.

Asbury challenges two subsequent instructions. The first challenged instruction 

stated, “Concerning element number two of Instruction 17, the shooting by the 

defendant resulted in the death of James Patton if it caused or directly contributed 

to James Patton’s death.”2 The second challenged instruction stated, “Malice 

aforethought maybe [sic] inferred from the defendant’s use of a dangerous 

weapon.”3 

Asbury does not argue the instructions were a misstatement of the law. 

Rather, he argues these two instructions improperly told the jury it was, in fact, the 

 

2 This instruction follows the format of Iowa Criminal Jury instruction 700.11, published by 

the Iowa State Bar Association.

3 Apart from the typographical error, this instruction is identical to Iowa Criminal Jury 

Instruction 700.10.
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defendant who shot the victim. The State counters that when all the instructions 

are read together, the two challenged instructions simply helped define elements 

of the crime that only come into play if the jury had already determined Asbury shot 

Patton. The State also contends there is no reasonable probability the result would 

have differed had Asbury’s counsel objected to the instructions.

For his ineffective-assistance-of-counsel claim to succeed, Asbury must 

prove by a preponderance of the evidence that “(1) his counsel failed to perform 

an essential duty, and (2) prejudice resulted.” State v. Liddell, 672 N.W.2d 805, 

809 (Iowa 2003) (citation omitted). Because proof of both prongs of this test is 

required, should Asbury fail to prove prejudice we need not consider whether his 

trial counsel failed to perform an essential duty. See State v. Oetken, 613 N.W.2d 

679, 684 (Iowa 2000). In this context, “prejudice must give rise to a reasonable 

probability the outcome of the proceeding would have been different had counsel 

not erred.” Id.

As we have noted above, “[e]rrors in jury instructions are presumed 

prejudicial unless the record affirmatively establishes there was no prejudice.” 

Ambrose, 861 N.W.2d at 554. Jury instructions should not assume disputed facts 

existed or were proven. State v. Hubbard, 250 N.W. 891, 891 (Iowa 1933). We 

acknowledge the identity of the shooter was a disputed fact and agree the 

instructions could have been drafted in a more fact-neutral, balanced fashion. See

State v. Huser, 894 N.W.2d 472, 502 (Iowa 2017) (noting a defendant’s proposed 

instruction was not “a balanced instruction designed to promote a fair trial”). But, 

here the record affirmatively establishes there was no prejudice. Reading the jury 

instructions in their entirety, it is clear the question of who shot Patton was the 
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central issue for the jury to decide. Both the challenged instructions reference 

elements of Instruction 17, the first-degree murder marshalling instruction, which 

required the State to prove “the defendant shot James Patton.” Read together with 

Instruction 17, the challenged instructions do not assume the disputed fact was

proved, and there was no reasonable probability the jury was misled or misdirected

by the challenged instructions.

In addition, the record contains overwhelming evidence of Asbury’s guilt. 

See State v. Carey, 709 N.W.2d 547, 559 (Iowa 2006) (“The most important factor 

under the test for prejudice is the strength of the State’s case.”). Even if the 

instructions had been crafted in a more fact-neutral fashion, there is no reasonable 

probability the jury’s verdict would have been different.

Because Asbury has not shown he was prejudiced by his counsel’s failure 

to object to the jury instructions, his claim of ineffective assistance of counsel fails. 

Because there is sufficient evidence to uphold the verdict and because Asbury was 

not prejudiced by his counsel’s failure to object to the jury instructions, we affirm.

AFFIRMED.